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SCOTUS ruling on Philadelphia case, LGBTQ groups view with some relief

Immediate reaction from some LGBTQ groups and individuals was dismay, while others viewed the decision as a relief.

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Graphic: The Los Angeles Blade

LOS ANGELES – The U.S. Supreme Court issued its decision Thursday in a unanimous 9-0 ruling that sided with Catholic Social Services (CSS),  a Catholic social services organization that sued the city of Philadelphia after the city excluded it from a foster-care program due to the organization’s refusal to certify same-sex couples as foster parents.

Immediate reaction from some LGBTQ groups and individuals was dismay, while others viewed the decision as a relief. Shannon Minter, Legal Director for the National Center for Lesbian Rights, told the Blade in a phone call Thursday that ruling was exceedingly narrow, aimed at a section of the contract by the City, and more importantly was not a ruling that would be citable in future litigation in terms of an anti-LGBTQ basis.

Specifically, Minter noted that with this unanimous ruling, the court avoided a situation that would overrule the 1990 SCOTUS ruling in the case of [the] Employment Division, Department of Human Resources of Oregon v. Smith. That ruling, authored by Associate U.S. Supreme Court Justice Antonin Scalia had made it more difficult for religious people and groups to secure exemptions from generally applicable laws governing anti-discrimination

Scalia in the Smith case wrote; [that] “the Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Justice Scalia goes on to cite examples such as compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

Minter opined that while there would be definite support to overturning Smith by three of the court’s conservative justices Samuel Alito, Clarence Thomas and Neil Gorsuch, he was doubtful that Chief Justice John Roberts, or the court’s other conservative justices Stephen Breyer, Brett Kavanaugh, and Amy Coney Barrett are that eager, given that there isn’t a legal remedy or replacement for Smith that would not create chaos within the federal judiciary in future challenges.

Properly understood, today’s decision is a significant victory for LGBTQ people, Minter said. The focus is on a contractual clause which is what the court focused in on. Writing in concurrence, Justice Alito noted, albeit it somewhat sarcastically, “This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish — and the parties will be back where they started.”

Minter pointed out that the Court did not change the current constitutional framework, which permits governments to enforce antidiscrimination laws that prohibit discrimination against LGBTQ people even when doing so may have a disparate burden on those who hold certain religious beliefs.

“As a result of today’s decision, those who feared the Court might create a sweeping new religious exemption to such laws can breathe a sigh of relief,” he concluded.

Also weighing in was Leslie Cooper, deputy director of the ACLU’s LGBTQ & HIV Project. “We are relieved that the court did not recognize a license to discriminate based on religious beliefs,” she said.

“Opponents of LGBTQ equality have been seeking to undo hard-won non-discrimination protections by asking the court to establish a constitutional right to opt out of such laws when discrimination is motivated by religious beliefs. This is the second time in four years that the court has declined to do so. This is good news for LGBTQ people and for everyone who depends on the protections of non-discrimination laws,” Cooper added.

Eugene Volokh, the Gary T. Schwartz Professor of Law at the University of California Los Angeles School of Law, writing in his Volokh Conspiracy blog noted;

Justice Barrett, joined by Justice Kavanaugh, concurring: The original meaning of the Free Exercise Clause is unclear on the broader question of religious exemptions from generally applicable laws, but “As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.” Yet Justices Barrett and Kavanaugh are “skeptical about swapping Smith‘s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.” In particular,

To name a few: Should entities like Catholic Social Services—which is an arm of the Catholic Church—be treated differently than individuals? Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) [providing broad protection for certain decisions by religious institutions -EV]. Should there be a distinction between indirect and direct burdens on religious exercise? Cf. Braunfeld v. Brown (1961) (plurality opinion). What forms of scrutiny should apply? Compare Sherbert v. Verner (1963) (assessing whether government’s interest is “‘compelling'”), with Gillette v. United States (1971) (assessing whether government’s interest is “substantial”). And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way? See Smith.

M. Currey Cook, Counsel and Youth in Out-of-Home Care Project Director at Lambda Legal, issued the following statement. “Today’s ruling by the Supreme Court is troubling but, importantly, it refused to give a free pass to people or agencies that want to discriminate against LGBTQ people for religious reasons and is limited to the specifics of Philadelphia’s foster care system. Instead, the Court validated the City’s ‘weighty’ interest in the equal treatment of LGBTQ prospective foster parents and foster children. The only reason those interests did not carry the day was due to the specifics of the City’s contract. Because the Court decided the case on contract-specific grounds, the City can address the situation by rewriting its contracts.” 

“But make no mistake.  Philadelphia has never refused to work with Catholic Social Services. The agency has continued to receive millions of dollars in foster care contracts from Philadelphia and the contract at issue simply applied a standard, important nondiscrimination principle to its contract agencies. Foster care is a government function, and all governments have a compelling interest in ensuring their contract agencies, including faith-based ones, treat all children and families equally. And today’s ruling does mean, at least for now, that different-sex married couples have access to all city agencies, while same-sex couples do not,” Cook said.

“The court’s ruling today on Fulton is a narrow one, limited in both nature and scope. The most important take-away is that the Supreme Court unanimously refused to allow a religious entity to have a license to discriminate. We stand in solidarity with the community in Philadelphia that is working for the fair and equitable treatment of  those who want to provide safe and loving homes to children and hold in our hearts the many children who will be impacted by this decision,” Kierra Johnson, Executive Director of the National LGBTQ Task Force said.

“The work ahead for our community is clear – we must continue to advocate for local and state non-discrimination laws, apply the ones that exist and most importantly, fight for the Equality Act, which would provide long overdue Federal protections to the LGBTQ community and many others,” she added.

Equality California’s Executive Director Rick Chavez Zbur, a prominent civil rights attorney weighed in saying, “Today’s ruling by the Court is limited in nature and scope. While the Court ruled against the City based on the specific facts of this case, we are heartened by the fact that it did not recognize or create a license to discriminate. The Court’s ruling means that governments can — and must — continue to enforce neutral, generally applicable laws that protect LGBTQ+ people from discrimination both inside and out of the foster care system.”

There was a note of defiance and dissent to the ruling from the SPLC listed anti-LGBTQ hate group, the Family Research Council, which released this tweet:

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California Politics

Governor Newsom & Legislative Leaders to expedite gun reform legislation

“California will not stand by as kids across the country are gunned down- Guns are now the leading cause of death for kids in America”

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Governor Newsom and legislative leaders discuss actions to curb gun violence (Office of the Governor)

SACRAMENTO – Following a mass shooting at an elementary school in Texas that left at least 19 children and two adults dead Tuesday, Governor Gavin Newsom, Senate President pro Tempore Toni G. Atkins (D-San Diego) and Assembly Speaker Anthony Rendon (D-Lakewood) announced California will expedite commonsense gun safety laws that will protect people from gun violence. 

“California will not stand by as kids across the country are gunned down,” Governor Newsom said. “Guns are now the leading cause of death for kids in America. While the U.S. Senate stands idly by and activist federal judges strike down commonsense gun laws across our nation, California will act with the urgency this crisis demands. The Second Amendment is not a suicide pact. We will not let one more day go by without taking action to save lives.”

“We have gotten to a point where we can’t live our lives without the very real fear that every time we say goodbye to our children, spouses, and friends, it could be the last,” said Senate President pro Tempore Toni G. Atkins (D-San Diego).

“These dreadful, devastating tragedies have to stop. Every politician, judge, or Supreme Court Justice who has opted to put more guns on our streets needs to resign today and hang their heads in deep shame. We have to do everything in our power to get guns out of our classrooms and grocery stores and away from people who should never have them. That includes our work this week to move expeditiously on more than a dozen bills that make our communities safer, and I’ll be continuing to work alongside Speaker Rendon and Governor Newsom to ensure that these bills move swiftly through the legislative process so that they can start to make positive change in our communities.”

“In the face of repeated tragedies in our state and elsewhere, California remains committed to doing everything we can to stem the violence,” said Assembly Speaker Anthony Rendon. “As a society, we must do better.”

“There have been more mass shootings in the U.S. in 2022 than days in the year,” said California Attorney General Rob Bonta.

“In California, we refuse to accept the current norm. We will continue to call on our federal leaders and neighboring states to do more, because our nation’s current standard for preventing gun violence is unacceptable. Our children should not suffer this burden. Active shooter drills, metal detectors, and schools that look like prisons are not the answer — we need commonsense gun safety laws. We are sick and tired of seeing young and promising lives cut short due to gun violence. We at the California Department of Justice and leaders throughout California know that addressing gun violence is critical to public safety. As your Attorney General, I vow to do much more than send thoughts and prayers — I will use the full force of the law and my office to end gun violence.”

An initial package of bills the Governor has committed to signing include: 

  • AB 2571 (Bauer-Kahan) – Restricts advertising of firearms to minors
  • AB 1621 (Gipson) – Restricts ghost guns and the parts and kits used to build them 
  • SB 1327 (Hertzberg) – Creates private right of action to limit spread of illegal assault weapons and ghost guns
  • AB 1594 (Ting) – Allows governments and victims of gun violence to sue manufacturers and sellers of firearms

Governor Newsom and legislative leaders said they will continue working together to expedite additional bills pending before the legislature aimed at curbing gun violence and increasing safety in California communities.

“I heard the news about Uvalde, just as I was getting ready to pick up my kids from school. I can see how this can happen at any school, anywhere in the country,” said Assembly Member Miguel Santiago who represents a portion of downtown Los Angeles.

“This comes on top of shootings in Buffalo, Laguna Hills, and at Grand Central Market one block from my District Office. We need stricter gun laws and we need them right now! That’s why I’m proud to join Governor Newsom and legislative leaders in the call for gun safety laws. I am also co-authoring AB 1594 (Asm. Ting) which helps gun violence survivors pursue legal action against gun manufacturers and AB 1621 (Asm. Gipson) which will help us get ghost guns off our streets for good,” Santiago added.

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California Politics

Trans Inclusive Health Care Act passes California State Senate

This first-in-the-nation legislation will help create a more inclusive and culturally competent healthcare system for TGI people

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Sen. Scott Wiener (Far right) & members of the California Legislative LGBTQ+ Caucus (Photo credit/Wiener)

SACRAMENTO – Senator Scott Wiener’s (D-San Francisco) Senate Bill 923, the TGI Inclusive Care Act passed the Senate by a vote of 28-6. It now heads to the Assembly for policy committee hearings.

This first-in-the-nation legislation will help create a more inclusive and culturally competent healthcare system for TGI (transgender, gender non-conforming, and intersex) people in California by requiring:

●     That physician Continuing Medical Education (CME) include evidence-based cultural competent studies to help physicians provide inclusive care for TGI people

●     That the Health and Human Services Agency issue enforceable quality standards for treating TGI patients

●     That health insurance companies provide TGI cultural competency training for their employees

●      That health insurance companies, in their network directories, include a list of providers who offer gender-affirming services, so that TGI people know where to go for specialized care

●     That the relevant oversight agencies track and monitor complaints relating to TGI-inclusive care and publicly post findings in their annual reports or website

SB 923 comes at a time when LGBTQ people — and particularly transgender children — are under attack across the country by right-wing state leaders. Many of those attacks seek to criminalize gender-affirming care.

In February, Texas Governor Greg Abbott issued an executive order making it illegal for parents to allow their trans kids to receive gender-affirming care. These parents could have their children taken away and be sent to prison simply for allowing their children to be who they are and receive this necessary care.

Abbott called gender-affirming care “child abuse.”

Alabama just enacted a law imposing ten-year state prison sentences on parents and physicians who allow or provide gender-affirming care to their children.

In Florida, Governor Ron DeSantis signed the “Don’t Say Gay” law, banning discussions about gender identity and sexual orientation from public school classrooms.

“As more and more red states ban gender-affirming care and try to erase LGBTQ people, California must step up to ensure strong access to health care,” said Wiener. “That includes ensuring that trans people are treated with respect and dignity by health care providers. While many health care professionals provide excellent care to trans people, more work remains. Improved training, clear standards, and improved network directories will result in better care for TGI people.”

While LGBTQ kids are under attack in Texas, Alabama, Florida, and other states, SB 923 shows a different path forward — one in which quality gender-affirming care is provided for anyone who needs it, with providers going above and beyond to treat TGI patients with the respect and care they deserve.

Healthcare discrimination and a lack of access to culturally competent care is a major problem that many TGI people regularly face. The National Center for Transgender Equality reports that one-third of all transgender individuals who saw a healthcare professional in 2014 had at least one negative experience related to being transgender, with even higher rates for people of color and people with disabilities. These negative experiences include being refused treatment, verbally harassed, physically or sexually assaulted, or having to teach the provider about transgender people in order to receive appropriate care.[1]

This is especially problematic given that TGI people, compared with the general population, suffer from more chronic health conditions. TGI people experience higher rates of health problems related to HIV/AIDS, substance use, mental illness, and sexual and physical violence, as well as a higher prevalence and earlier onset of disabilities that can also lead to longterm health issues. Sadly, 23% of transgender individuals reported that fear of discrimination caused them to postpone or not receive necessary medical care.[2]

Moreover, while all health plans are required to cover gender-affirming care, it can be difficult for TGI patients to actually find providers who routinely offer this care. This is a major impediment to TGI people accessing the care they need.

Every person deserves to receive quality, compassionate health care from understanding, informed, and respectful providers – providers who don’t make assumptions about their gender or sexuality, and who honor their bodily autonomy. TGI people already face so many obstacles outside of the healthcare system, including higher rates of violence, workplace discrimination, ostracization from families and religious communities, and housing discrimination. Going to the doctor should not mean facing additional discrimination or unecessary hardship.

TGI people should have access to positive healthcare experiences. This includes seeing providers who are able to give them the care they need in a non-judgmental and supportive environment, and being able to search for providers who provide gender-affirming services (gender-affirming services include but are not limited to: chest reconstruction, mastectomy, facial feminization surgery, hysterectomy, voice masculinization or feminization, hormone therapy related to gender dysphoria or intersex conditions, gender-affirming gynecological care, or voice therapy related to gender dysphoria or intersex conditions). Gender-affirming care is critically important health care, and anyone who needs it should be able to find and access it.

The TGI-Inclusive Care Act will help create a healthcare system that meets the needs of TGI people, and provide a more positive patient experience.

SB 923 is sponsored by the California LGBTQ Health and Human Services Network,  Equality California, National Health Law Program Trans Community Project, TransFamily Support Services, and Western Center on Law & Poverty. It is co-authored by Assemblymembers Sabrina Cervantes (D-Corona), Evan Low (D-San Jose), Alex Lee (D-Fremont), and Cristina Garcia (D-Bell Gardens).

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California Politics

Senator Wiener’s No Tax Exemption for Insurrection Act, passes Senate

Senate Bill SB 834 strips state tax-exempt status from organizations that engage in or incite insurrection

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Screenshot/California Legislative TV

SACRAMENTO – Senator Scott Wiener (D-San Francisco)’s Senate Bill 834, the No Tax Exemption for Insurrection Act, passed the Senate by a vote of 28-0 Monday. It will now head to the Assembly for policy committee hearings. 

SB 834 is a first-in-the-nation bill that will revoke the California tax-exempt status of nonprofit organizations that participate in or incite efforts to overthrow the United States government or any state government. Nonprofit organizations have used the “Big Lie” – the fraudulent notion that the 2020 election was stolen – to fundraise for and funnel money to extremist and anti-democratic initiatives like the January 6 insurrection.

Tax-exempt status is a privilege, not a right, and organizations that engage in or incite insurrection or conspiracy to commit insurrection – both of which are illegal – should not be given this special status to help them fundraise. Moreover, non-California nonprofits should not be able to register to raise money in California if they are engaging in or inciting insurrection. 

“On January 6, 2021, the peaceful transfer of power in our democracy was threatened,” said Wiener. “And for the first time since the Civil War, people died as a result. We cannot and will not let organizations that aid and abet insurrection – that break the law by trying to overthrow the U.S. government – operate with tax-exempt status. The people of California should not be subsidizing insurrection.” 

The January 6, 2021 insurrection took place, when pro-Trump extremists – in response to the false narrative that the Democrats “stole” the 2020 election and incited by then-President Donald Trump – breached the United States Capitol. Five people were killed as a result of this insurrection, and hundreds were injured.

Vice President Pence and Speaker Pelosi were specific targets of this violent attack on the nation’s democracy. Many nonprofits that supported the insurrection and continue to perpetuate lies about the 2020 election in hopes of overturning the results still operate with tax-exempt status, both at the federal and state level. 

SB 834 clarifies the Franchise Tax Board’s authority to revoke the California tax-exempt status of a nonprofit organization if the California Attorney General determines that the nonprofit has actively engaged in, or incited: treason, misprision of treason, insurrection, seditious conspiracy, advocating overthrow of the government or the government of any State, or advocating mutiny by members of the military or naval forces of the United States (1.)

Under SB 834, if the Attorney General finds that a nonprofit organization has incited, or actively engaged in actions that are directed to or likely to imminently violate one or more of these crimes, they will notify the FTB, which then will have the ability to revoke the nonprofit’s tax-exempt status. 

For out-of-state nonprofits that engage in or incite insurrection, they will be prohibited from registering to raise money in California. 

The United States Supreme Court has ruled that the purpose of charitable organizations claiming tax-exempt status “may not be illegal or contrary to public policy.” Trying to overturn elections and violently attacking our legislators fits the bill. SB 834 will ensure that these organizations no longer claim this financial advantage. 

Tax-exempt nonprofits are not required to pay corporate income taxes and may be exempt from other taxes as well. Additionally, donations to many nonprofits are deductible from income taxes, and private foundations and donor-advised funds can only donate to tax-exempt nonprofits. Private foundations and donor-advised funds represent a major funding source for many nonprofits. 

Authoritarian and anti-democratic organizations have increasingly used the “Big Lie” to fundraise, and this narrative has driven millions of dollars in tax-exempt donations. And many new organizations have cropped up in the past year, hoping to ride the coattails of the insurrection and cash in.

These include California nonprofits and nonprofits registered in other states that fundraise in California. These organizations, which are fundamentally undermining our democracy and cheering for the destruction of free and fair elections in America, should not be allowed to operate with advantages like tax-exempt status. 

For example, the leader of the “Oath Keepers,” a national militia movement, was charged with seditious conspiracy. While the Oath Keepers does not have California tax-exempt status, it has an “educational foundation” with federal exempt status and tax-exempt branches in several states. In the words of one expert, “It can only be presumed that [funds contributed to the Oath Keepers], which [donors were] able to deduct from their federal taxes, went to transporting and lodging members of the group slated to participate in the ensuing riots.” (2.) These organizations should not be allowed, under any circumstances, to use tax write-offs to help fund illegal activities. 

There is precedent for making this distinction in California’s tax code. Under federal and California law, for instance, if a nonprofit organization supports terrorism, its tax-exempt status is suspended. The nonprofit organizations that support insurrection should receive the same treatment. 

Citations:

1. USC §§ 2381-2385, 2387

2. “Dollars against Democracy: Domestic Terrorist Financing in the Aftermath of Insurrection,” Virtual Hearing before the Subcommittee on National Security, International Development and Monetary Policy of the Committee on Financial Services, U.S. House of Representatives, Feb 25, 2021. 

Senators Josh Becker (D-Peninsula), Dave Min (D-Irvine), Josh Newman (D-Fullerton), Anthony Portantino (D-La Cañada Flintridge), Tom Umberg (D-Orange County), and Bob Hertzberg (D-Van Nuys) are co-authors of this bill. Assemblymembers Buffy Wicks (D-Oakland), Phil Ting (D-San Francisco), Cristina Garcia (D-Bell Gardens) and Marc Berman (D-Menlo Park) are also co-authors of SB 836. Assemblymember Kevin Mullin (D-San Mateo) is principal co-author.

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