- The U.S. Supreme Court will hear arguments Wednesday in a case that will decide whether a taxpayer-funded Catholic adoption agency can refuse to match foster children with same-sex couples.
- While a ruling isn’t expected to be made until June, a decision in favor of the adoption agency could result in broader ramifications that allow organizations to deny service to LGBTQ+ on religious grounds.
- This will be the first major argument heard by Justice Amy Coney Barrett, a strong proponent of religious rights; however, the case in question will ask her whether she is in favor of overturning a 1990 precedent written by her mentor, the late Justice Antonin Scalia.
Philadelphia and Catholic Church Spar Over LGBTQ/Religious Rights
Justice Amy Coney Barrett will begin hearing arguments Wednesday on her first major case as part of the U.S. Supreme Court. It’s a case that is set to decide the intersection of LGBTQ+ and religious rights.
The case is known as Fulton v. City of Philadelphia, and it concerns a taxpayer-funded Catholic adoption agency in Philadelphia that is refusing to match foster children with same-sex couples. That agency, Catholic Social Services (CSS), claims that allowing such a practice would violate its religious beliefs.
In 2018, the city of Philadelphia caught wind of CSS denying same-sex couples the ability to foster children. As a result, the city then began refusing to refer new groups of foster children to the agency, doing so by citing a city law that prohibits discrimination on the basis of sexual orientation.
The following year, Philadelphia updated language in its government contracts to specifically prohibit adoption agencies from denying potential foster parents that are part of a same-sex couple.
With that, CSS sued the city in an attempt to uphold its practice of denying adoption to same-sex couples. In its lawsuit, it argued that the city unlawfully targeted its religious rights protected under the First Amendment.
Meanwhile, Philadelphia defended itself by arguing that it is simply enforcing an anti-discrimination policy that protects LGBTQ residents. As the city noted, it applies this policy evenly across all religious and even secular government contractors.
Cynthia Figueroa, Philadelphia’s deputy mayor for children and families, added that CSS is now attempting to rewrite a contract it had already voluntarily signed.
In 2019, a federal appeals court unanimously sided with Philadelphia, ruling that CSS failed to show that the city’s decision was made for any other reason than “sincere opposition to discrimination on the basis of sexual orientation.”
In its decision, that court heavily cited a 1990 U.S. Supreme Court ruling authored by former Justice Antonin Scalia: Employment Division v. Smith. That ruling stated that laws burdening religious exercise are permissible if they don’t specifically target the idea of religion or any one religion.
“Preventing discrimination in the provision of public services is undeniably a legitimate interest,” District Court Judge Petrese Tucker also said in 2018, while siding with Philadelphia.
Since both decisions, CSS has appealed to the U.S. Supreme Court, asking it to overturn Smith and saying that the agency “stands to be excluded from foster care, not because it broke any law, but because Philadelphia disagrees with its religious practices regarding marriage.”
“Just as no LGBT couples are prevented from marrying because a particular church does not perform same-sex weddings, no LGBT couples are prevented from fostering because a particular church cannot provide an endorsement,” CSS lawyers stated in their appeal to SCOTUS. “Yet many churches will be prevented from exercising religion by caring for at-risk children, all due to a disagreement with the government about marriage.”
Broader Effects of a Decision in Favor of CSS
As lawyers for the city of Philadelphia have noted, if the Supreme Court were to side with CSS, such a decision could have broad ramifications on LGBTQ+ individuals nationwide.
“[It] would essentially give anyone who objects to LGBT people and cites a religious basis for that the right to opt out of all those protections that achieved equal treatment for the LGBT community,” Leslie Cooper, a American Civil Liberties Union lawyer, said.
For its part, CSS has refuted that claim, with one of its lawyers, Lori Windham, calling Cooper’s statement “overblown.”
“Catholic Social Services has been partnering with women of color for decades to service a diverse population,” Windham said. “They are asking to continue to do that.”
Critics, however, have noted that even if CSS serves a diverse community, such a statement falls flat if it also specifically excludes others from that diverse community.
If SCOTUS were to side with CSS, as far as whether or not that would overturn Smith’s precedent… Well, the answer’s unclear. Any decision could lead to a number of outcomes.
For example, in 2018, SCOTUS heard a case involving a Christian baker who had refused to make a wedding cake for a gay couple. There, the Court sided with the baker; however, it did on narrow grounds and the ruling largely didn’t apply to similar cases.
Still, some legal experts do believe that a decision in favor of CSS would likely make it easier for religious organizations to mount defenses against accusations of violating anti-discrimination laws.
“The real world consequences of this could be really, really, really important to people,” David Flugman, a partner at the law firm Selendy & Gay, said according to CNBC. “From denial of health care, to exclusion from schools, or refusing to serve people in restaurants or not accommodating them in bed and breakfasts.”
Is CSS Favored to Win with SCOTUS?
There are very real reasons to suspect that SCOTUS could side with CSS.
In June, Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh all dissented to a ruling that upheld federal anti-discrimination laws protecting LGBTQ employees. While Justice Neil Gorsuch broke from the court’s conservative bloc for that decision, he — along with Alito, Thomas, and Kavanaugh — has hinted that he may be open to overturning Smith.
Notably, there is also the new addition of Barrett, a devout Catholic and a strong proponent of religious rights, to the bench. In fact, questions around Barrett’s faith and how she intends to couple it with her seat on the bench were a major aspect of her Senate confirmation hearing.
Still, there is also eason to suggest that she could possibly rule in favor of Philadelphia. As Flugman noted, “She clerked for Justice Scalia. Will she, in the first week or so of her time on the court, be running toward overturning a three-decade-old precedent written by her old boss?”
Many have also pointed to moments during her nomination process, where she said she would be guided by the law as written, not by her personal beliefs.
While SCOTUS will begin hearing arguments on this case Wednesday, it is not expected to make a decision until June. Currently, 11 states still allow private agencies to refuse to place children with same-sex couples.
See what others are saying: (CNBC) (The Wall Street Journal) (The Hill)
Senate Democrats To Introduce Voting Rights Bill This Week
Republicans are expected to block the legislation, but Democratic leaders hope the GOP’s unified opposition will lay the groundwork to justify getting rid of the filibuster.
Voting Bill Set for Floor
Senate Democrats are officially set to advance their voting rights bill this week, with a procedural vote to start debate on the legislation scheduled for Tuesday.
The move comes as an increasing number of Democrats and progressive activists have begun to embrace a more watered-down version of the bill proposed by Sen. Joe Manchin (D-W.V.), the sole Democrat who opposed the initial proposal on the grounds that it was too partisan.
While Democrats have spent the weekend hashing out the final details of compromise on Manchin’s bill, which he has touted as a more bipartisan compromise, Senate Republicans have still broadly rejected it.
Minority Leader Mitch McConnell (R-Ky.), who previously opposed the initial For the People Act as too far-reaching, called Manchin’s alternative proposal “equally unacceptable” and predicted that no members of his party will vote in favor.
The legislation is all but guaranteed to fail in the chamber, where it will require all 50 Democrats and at least 10 Republicans to overcome the filibuster.
However, bringing the bill to the floor still has major utility for Democrats because it will lay the groundwork for the party to justify scrapping the filibuster entirely.
Pathway for Filibuster Reform
Specifically, if Manchin agrees to some form of the bill which Republicans then filibuster, Democrats can say they had the to votes to pass the legislation if the filibuster were removed.
That, in turn, would bolster the Democratic argument that bipartisanship cannot be a precondition to taking actions to secure our democracy if it relies on reaching common ground with a party that they believe is increasingly and transparently committed to undermining democracy.
It would also give more ground to the Democratic claim that the GOP is abusing existing Senate rules to block policy changes that have gained wide public support following the Jan. 6 insurrection and amid the growing efforts by Republican governors and legislatures to restrict voting access in their states.
As a result, if Republicans block the legislation along party lines, Democratic leaders hope that could change objections to scrapping the filibuster voiced privately by some members and publicly by Manchin and Sen. Kyrsten Sinema (D-Az.).
This is especially true for Tuesday’s planned vote, because it is just a vote to proceed to debate, meaning that if Republicans filibuster, they will be preventing the Senate from even debating any efforts to protect democracy, including Manchin’s plan which he crafted specifically to reach a compromise with the GOP.
Whether a full party rejection would be enough to move the needle for Manchin and the other Democrats remains to be seen. Any successful overhaul of the contentious Senate rule would not only be incredibly significant for President Joe Biden’s agenda, but also for the precedent it could set.
See what others are saying: (The New York Times) (Reuters) (USA Today)
McConnell Says He Would Block a Biden SCOTUS Nominee in 2024
The Senate Minority Leader also refused to say whether or not he would block a hypothetical nominee in 2023 if his party overtakes the chamber’s slim majority in the midterm elections.
McConnell Doubles Down
During an interview with conservative commentator Hugh Hewitt on Monday, Senate Minority Leader Mitch McConnell (R-Ky.) threatened to block a hypothetical Supreme Court nominee from President Joe Biden in 2024 if Republicans took control of the Senate.
“I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled,” he said. “So I think it’s highly unlikely. In fact, no, I don’t think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election.”
McConnell’s remarks do not come as a surprise as they are in line with his past refusal to consider former President Barack Obama’s nomination of Merrick Garland to the court in February 2016 on the grounds that it was too close to the presidential election.
The then-majority leader received a ton of backlash for his efforts, especially after he forced through Amy Coney Barrett’s confirmation just eight days before the 2020 election. At the time, McConnell argued the two situations were different because the Senate and the president were from the same party — a claim he reiterated in the interview.
McConnell also implied he may take that stance even further in comments to Hewitt, who asked if he would block the appointment of a Supreme Court justice if a seat were to be vacated at the end of 2023 about 18 months before the next inauguration — a precedent set by the appointment of Anthony Kennedy.
“Well, we’d have to wait and see what happens,” McConnell responded.
Many Democrats immediately condemned McConnell’s remarks, including progressive leaders who renewed their calls to expand the court.
“Mitch McConnell is already foreshadowing that he’ll steal a 3rd Supreme Court seat if he gets the chance. He’s done it before, and he’ll do it again. We need to expand the Supreme Court,” said Sen. Ed Markey (D-Ma.).
Some also called on Justice Stephen Breyer, the oldest SCOTUS judge, to retire.
“If Breyer refuses to retire, he’s not making some noble statement about the judiciary. He is saying he wants Mitch McConnell to handpick his replacement,” said Robert Cruickshank, campaign director for Demand Progress.
Others, however, argued that the response McConnell’s remarks elicited was exactly what he was hoping to see and said his timing was calculated.
The minority leader’s comments come as the calls for Breyer to step down have recently grown while the current Supreme Court term draws near, a time when justices often will announce their retirement.
On Sunday, Rep. Alexandria Ocasio-Cortez (D-N.Y.) was asked if she thought Breyer should leave the bench while Democrats still controlled the Senate. She responded that she was “inclined to say yes.”
With his latest public statement, McConnell’s aims are twofold here: he hopes to broaden divisions in the Democratic Party between progressives and more traditional liberals, who are more hesitant to rush Breyer to retire or expand the court, while simultaneously working to unite a fractured Republican base and encourage them to turn out in the midterm elections.
See what others are saying: (The New York Times) (CNN) (The Hill)
Gov. Abbott Says Texas Will Build Border Wall With Mexico
The announcement follows months of growing tension between the Texas governor and President Biden over immigration policies.
Texas Border Wall
Texas Gov. Greg Abbott (R) announced during a press conference Thursday that the state would build a border wall with Mexico, extending the signature campaign promise of former President Donald Trump.
Abbott provided very few details for the border wall plans, and it is unclear if he has the authority to build it.
While some of the land is state-owned, much of it belongs to the federal government or falls on private property.
Even if the state were able to build on federal ground, private landowners who fought the Trump administration’s attempts to take their land through eminent domain would still remain an obstacle for any renewed efforts.
During his term, Trump built over 450 miles of new wall, but most of it covered areas where deteriorating barriers already existed, and thus had previously been approved for the federal project.
The majority of the construction also took place in Arizona, meaning Abbott would have much ground to cover. It is also unclear how the governor plans to pay for the wall.
Trump had repeatedly said Mexico would fund the wall, but that promise remained unfulfilled, and the president instead redirected billions of taxpayer dollars from Defense Department reserves.
While Abbott did say he would announce more details about the wall next week, his plan was condemned as ill-planned by immigration activists, who also threatened legal challenges.
“There is no substantive plan,” said Edna Yang, the co-executive director of the Texas-based immigration legal aid and advocacy group American Gateways. “It’s not going to make any border community or county safer.”
Abbott’s announcement comes amid escalating tensions between the governor and the administration of President Joe Biden.
Biden issued a proclamation that stopped border wall construction on his first day of office, and has since undone multiple Trump-era immigration policies. Abbott, for his part, has blamed Biden’s rollback of Trump’s rules for the influx of migrants at the border in recent months.
Two weeks ago, the governor deployed over 1,000 National Guard members and troopers from the Texas Department of Public Safety to the border as part of an initiative launched in March to ramp up border security dubbed Operation Lone Star.
Last week, Abbott issued a disaster declaration which, among other measures, directed the Texas Health and Human Services Commission to strip the state licenses of all shelters that house migrant children and have contracts with the federal government.
The move, which federal officials have already threatened to take legal action against, could effectively force the 52 state-licensed shelters housing around 8,600 children to move the minors elsewhere.
During Thursday’s press conference, Abbott also outlined a variety of other border initiatives, including appropriating $1 billion for border security, creating a task force on border security, and increasing arrests for migrants who enter the country illegally.
“While securing the border is the federal government’s responsibility, Texas will not sit idly by as this crisis grows,” he said. “Our efforts will only be effective if we work together to secure the border, make criminal arrests, protect landowners, rid our communities of dangerous drugs and provide Texans with the support they need and deserve.”