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    Ann Rostow: En Fin, Fulton

    By Ann Rostow–

    En Fin, Fulton

    The Supreme Court finally released its ruling in Fulton v City of Philadelphia, the second High Court showdown between religious freedom and gay rights laws protecting public accommodation. 

    Perhaps you remember the first such showdown, the 2018 Masterpiece Cakeshop case featuring the Colorado baker who refused to do business with two gay men in violation of state law? I’m betting you’re not quite sure who won that case, right? You have a vague feeling that the ruling went in favor of the baker, but it was some kind of technicality so it wasn’t that bad for our side. 

    Well, welcome to Fulton v City of Philadelphia, another case that was decided in favor of the antigay Catholic Social Services, but was so narrowly drawn to the specifics of this case that it won’t really devastate gay rights laws for now. 

    It makes you wonder why the justices continue to accept these cases. Do they want to clarify the complex relationship between competing constitutional rights? Do they want to help lower courts untangle the knotty situations in which a generally applicable nondiscrimination law happens to conflict with someone’s religious expression? Do they want to let local authorities understand the scope of their civil rights statutes and help them defend said statutes against frivolous challenges? 

    Or do they just want to mess around with everyone’s heads?! Are they sitting back there laughing their butts off while everyone else tries to read the tea leaves to figure out who has the constitutional right of way when gay plaintiffs run into antigay Christians in a one-lane alley off the public square? 

    Here’s the bottom line for now. In the very short 15-page majority opinion, written by Chief Justice Roberts and joined by all three liberals plus Kavanaugh and Barrett, the Court ruled that Philadelphia could not enforce its gay rights ordinance against Catholic Social Services even though the foster care placement group refused to consider prospective same-sex foster parents. 

    Why? First, because operating a foster placement service wasn’t really a “public accommodation” and therefore didn’t fall under the ordinance to begin with, and second because the city’s foster care rules allowed an exception for some “discrimination” in extraordinary circumstances. The Chief also made it clear that protecting gay rights was a very important public priority, which probably was why he earned the three liberal votes. This comment, like a juicy tidbit thrown to the dog under the table, was enough to generate “phew!” reactions from all the big GLBT activist groups. 

    Sure, it could have been worse. Just ask Justice Sam Alito, who penned a 70-plus concurrence that I couldn’t even read, joined by Thomas and Gorsuch. Or ask Justice Gorsuch, who wrote a concurrence of his own (joined by Alito and Thomas), which was much shorter and which I did, in fact, read. A concurrence, as you know, is when a justice agrees with the majority but has his or her own rationale, and in this case, would have gone further. Indeed Alito, Thomas, and Gorsuch wanted to overturn a very useful 1990 High Court opinion that says you can’t use religion as an excuse to ignore a generally applicable secular law. That opinion, Employment Division v Smith, concerned Oregon’s drug laws, which interfered with some religious peyote ritual. 

    Without Smith to help bolster gay rights laws, it would be far easier for someone to claim they can’t do business with our community because of their faith. Without Smith, our side would repeatedly have to prove that we had a compelling public interest in protecting GLBTs against discrimination. That’s a high bar. 

    In Fulton, for example, we were indeed held to this strict standard because, as mentioned earlier, the Court (mysteriously) said Philadelphia’s gay rights ordinance was not “generally applicable” and therefore was not covered by the Smith precedent. But instead of having to prove that its gay rights law met a “compelling public interest” (which it clearly does), the Court said Philly had to prove that its decision not to grant an exception to Catholic Social Services met a “compelling public interest.” Are you with me? More power to you. This was basically moving the goal posts in the middle of the extra point attempt and it’s why Philadelphia lost the case.

    It’s also why we don’t want to have to meet the test of strict scrutiny in each and every religious freedom case. Everyone (mostly) agrees that protecting gay and trans rights is a compelling public interest. But every case has its own details. The goal posts can be moved every time we face the test, and that would be our fate if Smith is summarily overturned.

    What Just Happened?

    In any event, Chief Roberts’s twists and turns managed to avoid bringing Smith into the picture, and in doing so he managed to avoid overturning the precedent, so we thank him for that, I suppose. Justice Barrett wrote a two-page concurrence of her own, joined by Kavanaugh and, in part, by Breyer, pointing out that while she didn’t like Smith, she did not want to overrule the 1990 opinion without an alternative framework that allowed for nuanced rulings.  

    So that was that, more or less. A confusing set of four separate commentaries, which avoided the main issue at hand by jumping through Court-generated hoops. Of course the delivery of foster care services is a public accommodation! Why wouldn’t it be? And as for the “exceptions” to the city’s anti-discrimination law, those were reserved for rare situations at the final stages of a foster placement— racist statements made by the prospective parents of a Black kid, for example. The term “exceptions” was not meant to cover a blatant antigay intake policy. 

    We find ourselves basically back where we started. It’s encouraging that Justice Barrett took a thoughtful approach to disrupting precedent. It’s encouraging that Roberts seems aware of the downside of opening the floodgates to antigay discrimination in public accommodation, much as he seems reluctant to revoke medical insurance for millions of Americans. 

    I’m not sure what to think of Kavanaugh, frankly. Alito remains our arch enemy on the Court, a man who appears to bend the law to his own bigoted ends. Gorsuch is more of a Scalia-type, conservative but oddly principled; capable of writing one of our best Court victories (Bostock) one year and recommending that religion trump gay rights (Fulton) the next. Thomas is Thomas. 

    I think it was Adam Liptak of The New York Times who recently wrote that the Court was shaping up to be a three-sided triangle rather than a 6–3 conservative juggernaut. It’s true that Alito and Thomas seem alone at the extreme, but Liptak’s interesting analysis seems a little too neat. This is still a 6–3 conservative Court. It’s just a little less conservative in the middle, and the general balance is helped by the fact that the pragmatic Chief Justice, the man whose name will come to be associated with this Court’s performance, holds a little more power than the others.

    What Next?

    Looking ahead, it’s hard to imagine where the Court goes next as far as our goals are concerned. Will it take another one of these religion v. gay rights appeals? There’s an open petition in the case out of Washington state, where a florist declined to provide services to two gay men who were planning a wedding. 

    And there’s also an absurd case in the pipeline from the same Colorado baker who “won” his Masterpiece Cakeshop ruling three years ago. In the latest litigation, Jack Philips refused to bake a pink and blue cake for a transgender activist, who in turn has been deliberately goading Philips in an effort to star in her own court battle. 

    At least that’s how it appears to me, so I’m not rooting for that case to advance. For one thing, Jack Philips has every right not to produce and sell a specific design that undermines his beliefs, religious or otherwise. If I’m a baker, I don’t have to make you a Hitler birthday cake, period. In the original case, Philips refused all transactions with the two gay men who were getting married. He effectively refused to sell them a generic cake off his shelf, and as such he was discriminating against gay clients. That does not mean that he could be forced, let’s say, to bake a specifically gay cake. In fact, Philips does not even make Halloween products, and that’s fine. It’s not discrimination.

    At issue here is what plaintiff Autumn Scardina called a “transition” cake, with a pink interior and blue icing. I’m not sure of all the details, but I think Scardina explained the purpose of the cake to Philips, who then refused to make it. Philips was recently found to be in violation of Colorado’s anti-discrimination law and fined $500 by a Denver judge, who said the denial of service was based on bias against the client herself. We’ll see where this goes, but I don’t like it.  

    More GLBT Stuff

    Let’s move on, shall we? I’m sure you saw that a pickup truck killed someone at a pride parade in Wilton Manors, Florida. I immediately thought the driver was one of these far-right idiots, but it was immediately made clear that the driver was a seventy-something parade goer, who stepped on the gas by accident and killed one of his fellow gay men’s choir members. That said, wasn’t it Florida that passed a law saying it’s okay to careen your motor vehicle into a street protest? I know that’s not true, but it’s not far off, right? 

    And we have numerous cases of rainbow flag conflicts, including one in Racine, Wisconsin, where two gay men set up rainbow-colored floodlights when their homeowner association said they could not fly their pride flag. There’s a sweet story out of some Republican neighborhood near Tulsa, where a great dad raised a flag in support of his gay son. And there are more headlines in Austin, where another homeowner association has put its foot down over the flag.

    But here’s the deal. These homeowner associations are ridiculous, yet if you buy a house and sign the forms, you can’t object to their rules and regulations. I remember one case where the HOA said no one could fly anything but the stars and stripes. Some gay guys put up a rainbow flag anyway, because the HOA looked the other way for sports flags and other random pennants. Now, those guys had a legitimate case. But if all flags are truly banned, then you can’t object. 

    Oh, and good for Carl Nassib, the Raider defensive end who just came out as a gay man, making history as the first active NFL player to do so. I might become a Raider fan. As long as they’re not playing the Chiefs. Or the 49ers. Or the Vikings, of course.

    Back to Square Three

    And what else is new, you ask? We’re at the end of our column, so there’s no space to delve into the status of the Equality Act. That’s not a coincidence. I don’t think our signature GLBT rights legislation is going anywhere fast, although I think it might get another committee hearing one of these days. As you know, the Equality Act passed the House for the second session in a row a few months ago, and now languishes in the stagnant Senate along with the rest of the progressive agenda. 

    Elsewhere in Washington, the Department of Education is the latest Biden cabinet office to recognize gay and trans rights under federal law in line with the High Court’s 2020 ruling in Bostock. In Bostock, the 6–3 Court said gay and trans discrimination is a form of sex discrimination. Since sex discrimination is outlawed in public education by Title IX of the Education Amendments of 1972, that means GLBT bias is also against the law.

    If that seems obvious, it wasn’t for Betsy DeVos, who simply ignored the Supreme Court’s ruling throughout the end of the Trump administration. But while it’s satisfying to watch the administrations change, and to see Good triumph over Evil, the fact that a new administration can revisit important public policy illustrates why we need the Equality Act. The courts can help us or hurt us. Political leaders are here today and gone tomorrow. But acts of Congress are difficult to roll back. The Equality Act can’t pass unless the filibuster is somehow amended, which takes us back to Doe, a deer, a female deer, Ray, a drop of golden sun. Sing with me while we go around in circles.

    Published on June 24, 2021