Radical Supreme Court Orals Today a Blow to LGBTQ People

Ever had one of those days when waking up felt dangerous? I was up an hour before my alarm this morning, too anxious to sleep, stomach clenching over the possibility that Donald Trump might win another term as president.

But as a gay man and a lifelong LGBTQ advocate, another huge matter occupied my mind. As I write this , I’ve been closely following Supreme Court oral arguments in Fulton v City of Philadelphia, a case that is genuinely frightening for LGBTQ and other marginalized people.

While the high court will not hand down its potentially landmark decision for some months, initial impressions are that justices are inclined to substantially ratchet back protections for LGBTQ people in a way that could also eliminate government protections for other minorities.

I’m not a lawyer and I’m not writing a legal analysis today, but if you’d like to see more details than I’m providing, please see Slate journalist Chase Stranglio’s real-time oral-argument commentary.

What the case is about and why it is so critical

In a nutshell, Catholic Social Services (CSS) is suing the City of Philadelphia for the right to provide city-contracted foster care services while excluding LGBTQ people as potential foster parents. They say their religious faith prevents them from following the terms of a city contract that requires them not to discriminate.

We dreamed of healing a judiciary that has taken a hard turn toward mean.

The United States in the person of Acting Solicitor General Jeff Wall has joined CSS in arguing that the City of Philadelphia is impermissibly discriminating against CSS by infringing their Constitutional right to practice religion.

Philadelphia cries foul, claiming they have a right to enforce religiously neutral contracting rules, citing their “compelling interest” in preventing discrimination against its residents on the basis of sexual orientation.

“Compelling interest” is a critical legal phrase that describes a situation in which courts must show great deference to a government body protecting such interests.

For example, the courts have long recognized preventing racial discrimination is a legitimate “compelling interest,” rooted in the 14th Amendment guarantee of “equal protection of the law.”

Last June’s Supreme Court decision in Bostock v Clayton County recognized such a compelling interest with respect to sexual orientation and gender identity, but now five justices look ready to entertain throwing most of that decision on the trash heap.

As Stranglio observes, two other critical court precedents are at stake:

Please be alarmed about the fact that the federal government (and much of the Court) seems to think that governments may not have a compelling interest in ending discrimination against LGBTQ people. An erosion of Obergefell and Masterpiece.

Today’s arguments were radically anti-LGBTQ

The Solicitor General argued explicitly that the government does not have a compelling interest in protecting LGBTQ people from discrimination. That’s pretty jaw dropping. More jaw dropping is that five justices expressed great sympathy to his argument: Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.

That doesn’t mean they will eventually rule as such. Justices’ questions and comments during orals do not always line up with how they write their opinions or vote, but they DO often serve as warning signs.

Three possible decisions — one of them bad, one of them destructive

This case could be decided in any number of ways. On the surface, it’s a pretty simple matter. Should a religious organization be exempted from neutrally constructed and administered government regulations? Three possible answers present:

1. Best possibility: CSS must, as an agent of the City of Philadelphia spending taxpayer money to care for wards of the state, follow generally applicable laws and regulations, including honoring the terms of government contracts.
2. Pretty bad possibility: For narrow reasons, the court finds the City of Philadelphia’s contract for foster care services is not neutral; it infringes on CSS’s religious practice rights and should be modified to accommodate CSS while continuing to protect LGBTQ people from discrimination.
3. Genuinely awful outcome: The City of Philadelphia’s contract is moot because governments do not have a compelling interest in protecting LGBTQ people from discrimination.

Five justices this morning sounded VERY sympathetic towards the third outcome, although several of them also actively explored ideas that would work for the second.

The possibility that the court will choose the first option and rule that discriminating against LGBTQ people is impermissible in this case ranges from vanishingly small to nonexistent.

At this point wishing for a narrow loss seems all LGBTQ people have to hold onto. We have to wish the court will rule we can be discriminated against only for particular, limited reasons.

Legal analysts say that if a majority of justices go with option number 3, then civil rights protections for broad groups of marginalized people will be up for grabs. Look for more legal analysis in coming days to hone in on why, but for the moment let’s remember something.

Yesterday’s elections have ground-shifting consequences even if Biden ekes out a victory

Moderate, liberal, and progressive Americans all hoped that Trumpism would suffer a decisive defeat in yesterday’s election. It did not. Most of us counted on seeing the Senate turn Democratic so President Biden could work with Congress to undo toxic damage to our democracy. That didn’t happen.

Marginalized people dreamed of restructuring a system that has entrenched minority rule.

We dreamed of Supreme Court reform undoing civil liberties damage forced by reactionary justices whose views are antithetical to the majority.

We dreamed of healing a judiciary that has taken a hard turn toward mean.

Today, we dial back our hopes

I’m still watching the polls carefully, to the point of having a hard time focusing on writing this article. It seems Biden will probably become president, though the outcome is not certain. (I just heard Wisconsin went to Biden.)

But even assuming Biden wins, the Supreme Court showed us this morning that American civil liberties remain in grave peril. Marginalized people stand to become more marginalized. LGBTQ people stand to lose the legal presumption that government should protect us from discrimination.

It’s time to retrench and re-strategize

I’m still punch drunk from staying up most of last night, but I’m clear-headed enough to realize everything has changed. Equality goals and strategies as they existed yesterday are dead in the water.

LGBTQ activists, feminists, Black Lives Matter organizers — all of us — face a paradigm shift in our reality no matter who ends up in the Oval Office. I’m not going to speculate right now on where new strategies will take us, not before I get some sleep.

But we must not forget that times have been worse.

The courts have opposed us before, and we still won acceptance and equality. New strategies do not mean giving in to despair. It’s time to fight!

James Finn is a former Air Force intelligence analyst, long-time LGBTQ activist, an alumnus of Queer Nation and Act Up NY, an essayist occasionally published in queer news outlets, and an “agented” novelist. Send questions, comments, and story ideas to jamesfinnwrites@gmail.com.