May 21, 2020
As the new Supreme Court term begins, the issues we care about are already front and center at the nation’s highest court.
One case, Fulton vs. City of Philadelphia, scheduled for oral argument on November 4, could have sweeping ramifications for our community.
Watch GLAD’s Transgender Rights Project Director Jennifer Levi explain what the case is about and what’s at stake:
>> Hi, I’m here with GLAD attorney Jennifer Levi to talk about case, Fulton v. City of Philadelphia, that the United States Supreme Court will hear next term. Hi Jennifer, thanks so much for joining me today. I’ve heard Fulton is an important case for the LGBTQ community. Can you tell me a little bit about it?
>> Yeah, sure. This is a case in which Catholic Social Services sued after the City of Philadelphia ended its contract with them because the agency refused to work with same-sex couples who wanted to become foster parents.
It’s a case like so many we’ve seen where a religiously-based organization is asking to be exempted from non-discrimination laws. You probably remember a case from 2018 brought against a Colorado baker who refused to make a wedding cake for a same-sex couple. Many of us expected that case, Masterpiece Cake Shop, to be the one where the Supreme Court would decide whether religiously owned businesses get a pass on complying with non-discrimination laws. But Masterpiece Cake didn’t turn out to be that case. Instead with Justice Kennedy as the swing vote the Court decided the case narrowly, avoiding the larger legal question. That makes Fulton, the case the Court has now taken up the first to be heard on the issue since Justice Kavanaugh replaced Justice Kennedy.
>> Okay then. Wow. That makes it sound pretty important. What else can you tell me about it?
>> Catholic Social Services is one of about 30 agencies – almost all religious – that contracts with Philly to do foster placements. And after the City learned that Catholic Social Services wouldn’t work with married same-sex couples, it ended their contract. And Catholic Social Services sued. They lost in the trial court. They lost in the appeals court. And now they’re making their case to the Supremes. GLAD is part of a national team strategizing to make sure this case doesn’t end up gutting the non-discrimination laws that are so important to so many people.
>> I can surely see why this is an important case for couples in the Philadelphia area who want to become foster parents. But what makes it so important for everyone else?
>> That’s a great question. I mean there are a number of issues in the case but probably most significant for the LGBTQ community is one that pits Philly’s non-discrimination requirement against Catholic Social Services free exercise claim. But we should probably back up a little bit.
Under well settled precedent, laws that don’t specifically target religious entities and applied equally to everyone, religious and non-religious people alike, are presumptively constitutional. The court calls those neutral laws of general applicability. The court says that they would stand constitutional challenge even if they have some incidental impact on a person’s religious practices. And this isn’t some progressive idea. It’s based on a case called Smith that was decided by Justice Antonin Scalia decades ago. The reason so many eyes are on Fulton now is because it’s a case where the new conservative majority could change the law in a way that would allow substantially more discrimination against LGBTQ people and others in a wide variety of contexts. It’s been a goal of the Religious Right to do this basically since Smith was decided.
>> But doesn’t our constitution provide special protections for people to be able to follow their religious beliefs? I mean what’s so wrong with that?
>> Well sure our Constitution does say that you can’t target religious beliefs for a particular hostile treatment by the government. But that’s not what non-discrimination laws do. Far from it. And what Justice Scalia reasoned in Smith was that allowing a person to do whatever they want based on their religious beliefs would basically mean that every person becomes a law unto themselves and that would undermine the rule of law and create chaos.
You also have to remember that this is a case about the conditions a city like Philly gets to put on its spending. I mean the city is basically just saying if you want to get government money you can’t discriminate against LGBTQ people. Seems pretty straightforward when you think of it that way.
>> Yeah I guess it does. So how big a deal is this case anyway?
>> That depends on where the court lands on how far it extends its analysis. At the far end a decision in the case could allow pretty much any religious entity to refuse to provide services to anyone and it can also force government at all levels to fund discriminatory groups. Pretty scary really.
>> Wow. I see that. I mean, so many people rely on government services for food, housing, health care, and so much more. Are you saying people could be turned away from housing shelter just because they’re gay?
>> That’s certainly possible if the court overturns the Smith precedent. It might even mean that private businesses could do that. The implications are seriously far-reaching.
>> Okay wow. I’m really just trying to take this all in. The case sounds seriously important. Thanks for talking to me about it. Definitely sounds like something all of us who care about non-discrimination should follow closely. I’ll make sure to keep checking GLAD’s website regularly so I can keep up on this case and so many more that I know will make a big difference in my life and the lives of so many people I care about. Thanks again and I hope you’ll come back and talk to me again sometime.
>> You bet I will. Any time.