On November 4, the United States Supreme Court heard argument in a case that could subject LGBTQ people and others to discrimination by private entities that contract with the government to provide government services.
The case, Fulton v. City of Philadelphia, challenges Philadelphia’s requirement that contractors assessing whether individuals meet the state-law criteria to serve as foster parents for children in government custody not discriminate on the basis of protected characteristics, including sexual orientation. The challenge is led by a religious organization that wants to be hired to perform this government function but refuses to certify same-sex couples. Two organizations, the Support Center for Child Advocates and Philadelphia Family Pride, represented by the ACLU and the ACLU of Pennsylvania, intervened in support of the city and were added as defendants.
A federal district court ruled in favor of Philadelphia and the other defendants. The U.S. Court of Appeals for the Third Circuit affirmed, because under Supreme Court law, “the City’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of [the contractor] do not entitle it to an exception from that policy.” The Supreme Court then agreed to review the case.
The Center for Reproductive Rights joined 35 other organizations, led by the National Women’s Law Center, in filing a "friend-of-the-court" brief in the Supreme Court supporting Philadelphia’s non-discrimination law. The brief tells the Supreme Court that a ruling against Philadelphia threatens significant harm to LGBTQ people—and also broader harms to non-discrimination law generally. Allowing religiously affiliated entities to use government funds to discriminate could harm women and girls in a host of areas, including by permitting discrimination in employment, education, and matters related to pregnancy and reproductive health.
This case was one of the first heard by Justice Amy Coney Barrett, who was confirmed to the Supreme Court on October 26 after President Trump nominated her to fill the vacancy created by the death of Justice Ruth Bader Ginsburg—a champion of equal rights. The Center for Reproductive Rights opposed Justice Barrett’s confirmation after concluding that her academic writings, court decisions, and public advocacy revealed a legal view and judicial philosophy that undermine fundamental liberty rights, including those central to protecting individual decisions about one’s reproductive health or who to marry.
Will the Court permit religious exercise to impose harms on other people?
The religious organization in this case claimed a freedom to discriminate based on the First Amendment. The Supreme Court has traditionally ruled in favor of such First Amendment free-exercise challenges to neutral, generally applicable laws only when the religiously motivated conduct at issue does not harm others. Notably, this longstanding principle is one consistently embodied in the judicial philosophy of the late Justice Ginsburg, who believed that the free exercise of religion cannot justify inflicting harms on others. In Burwell v. Hobby Lobby, Justice Ginsburg wrote in her dissent that, “with respect to free exercise claims...[y]our right to swing your arms ends just where the other man's nose begins.”
During oral argument in Fulton, however, Justice Barrett skeptically questioned where this “anti-harm” principle came from. Indeed, a majority of the Justices appeared receptive during oral argument to the claim of the government contractor seeking to discriminate against LGBTQ people.
The case has broader implications for laws forbidding discrimination.
A ruling against Philadelphia could inflict devastating harm on LGBTQ people and also have broader implications for non-discrimination law. The decision could lead to further sex discrimination and discrimination against people most often deprived of equal treatment and dignity.
While religious beliefs have been invoked in attempts to justify sex discrimination, modern courts have rejected those claims. Remarkably, in its argument, the United States government more than once refused to agree that the government has a compelling interest in enforcing laws that prohibit discrimination in access to public services based on sex.
Permitting entities with religious objections to use government funds to discriminate in the delivery of government services on the basis of sex has the potential to impact women and girls in countless ways, including in access to health care, public accommodations, access to education, and the workplace.
For example, women face discrimination in health care and the denial of essential reproductive health care services and coverage, which is often religiously motivated. Laws that prevent such sex discrimination in health care and protect patient access to care could be undermined by a ruling against Philadelphia’s non-discrimination policy.
Undermining non-discrimination law would hurt numerous people with different and intersecting identities. This case highlights the increased threats to laws that forbid discrimination, including discrimination based on race, national origin, disability, age, sex, gender identity, and sexual orientation. The contractor in this case seeking to discriminate against LGBTQ foster parents while performing city services supplied no limiting principle preventing it from discriminating against LGBTQ youth, or persons from a different religion, or those seeking any number of city services, whether foster care or support for individuals experiencing food or housing insecurity.
The Supreme Court is being urged to ignore precedent recognizing the harms of discrimination.
Past cases have recognized that courts should enforce non-discrimination laws because they serve compelling government interests. The Supreme Court has emphasized that discrimination is wrong not only because it imposes “material costs” (i.e., the elimination of services) but also because it inflicts “stigma” and relies on and reinforces stereotypes. Thus, non-discrimination laws serve compelling interests in preventing the denial of equal dignity, regardless of whether any individual Black person, woman, non-Christian, or LGBTQ person could manage to obtain services from a non-discriminating provider. The Supreme Court has ruled, for example, that religious beliefs do not allow a restaurant to refuse Black customers, regardless of whether another option is available down the street. The Catholic, Jewish and gay persons who have been refused services by foster care agencies are no less entitled to protection.
As Justice Kennedy wrote in one of his last opinions before retiring, a vendor who says no services will be provided to gay people “impose[s] a serious stigma” which generally-applicable non-discrimination laws legally can prevent.
Today, though, non-discrimination principles championed by former Supreme Court Justices hang in the balance.
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The Supreme Court is expected to issue a ruling in the case before the end of its term in June 2021.
The Supreme Court heard argument in Fulton v. City of Philadelphia via teleconference because of the COVID-19 pandemic, with the proceedings streamed live. Click here for a replay of the November 4 oral argument.