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U.S. Federal Courts

Supreme Court rules for religious agency rejecting LGBTQ families

A key portion of the Roberts decision that could limit its reach is language specific to Philadelphia’s contract with the city

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Blade file photo by Michael Key

WASHINGTON – In a ruling released Thursday, the U.S. Supreme Court ruled decided in favor of a religious-affiliated foster care agency seeking to refuse child placement into LGBTQ homes, determining the City of Philadelphia’s enforcement of a contract with non-discrimination provisions violates freedom of religion under the First Amendment.

In a surprise twist, the ruling was unanimous with nine justices on the court agreeing to the result in favor of Catholic Social Services, with Chief Justice John Roberts writing the opinion. As noted by SCOTUSblog, the court seemed much more divided in oral arguments, although inclined to rule for the foster care agency.

“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment,” Roberts writes.

Although Catholic Social Services had also contended a freedom of speech right under the First Amendment to reject same-sex couples, Roberts adds the court didn’t reach a conclusion on that part of the argument.

Marianne Duddy-Burke, executive director of the Catholic LGBTQ group DignityUSA, condemned the decision in a statement immediately after it was handed down.

“Today, the well-being of our country’s most vulnerable children has been sacrificed to preserve tax-payer funded discrimination for a powerful group of religious institutions,” Duddy-Burke said. “The Supreme Court just decreased the number of homes available to our youth in foster care, making what was already a crisis worse. Same-sex couples are seven times more likely than straight couples to adopt or be foster parents and are more likely to have trans-racial families. This ruling means tens of thousands of children may never have a family to love and support them.”

The Supreme Court reversed and remanded decision of the U.S. Third Circuit of Court of Appeals, which had ruled in favor of City of Philadelphia enforcing its contract with Catholic Social Services. Both the appeals courts and the lower trial court had come to the opposite conclusion of the U.S. Supreme Court.

A key portion of the Roberts decision that could limit its reach is language specific to Philadelphia’s contract with the city allowing for discretion on enforcement, which he says means the measure isn’t generally applicable measure.

“Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation,” Roberts writes. “But section 3.21 also permits exceptions to this requirement at the ‘sole discretion’ of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.”

David Flugman, a lawyer at the New York-based Selendy & Gay PLLC whose practice includes LGBTQ rights, said in a statement the technical nature of the Fulton is “sure to invite even more litigation.

“Today the Supreme Court held, on narrow, technical grounds, that the City of Philadelphia’s attempt to ensure that Catholic Charities abide by the same non-discrimination provisions applicable to all other city contractors could not withstand Catholic Charities’ religious right to refuse to screen loving same-sex couples to act as foster parents,” Flugman writes. “The Court did not take up Catholic Charities’ invitation to scuttle the 30 year-old test for free exercise claims that was announced in Smith v. Employment Division, which held that a neutral law of general applicability could survive even if it burdens religious practice.”

Notably, although the City of Philadelphia in addition to the contract it struck with Catholic Social Services has in a place LGBTQ non-discrimination ordinance, the Supreme Court determines that measure doesn’t apply in the context of foster care services because it’s limited to the services “made available to the public.”

“Certification is not ‘made available to the public’ in the usual sense of the words,” Roberts writes. “Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”

Fatima Goss Graves, CEO of the National Women’s Law Center, said in a statement the decision from the Supreme Court is a harmful loss to the children in the foster care system in Philadelphia as well as the countless LGBTQ parents.”

“Weakening the government’s ability to protect their civil rights is hardly in their best interest, and we’re committed to ensuring this loophole is not stretched to further justify hatred or prejudice,” Graves added. “We must protect the right of every person to live without fear of discrimination because of who they are or who they love, and we must hold that value particularly close when it comes to the best interest of LGBTQ youth and the families who love them.” 

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U.S. Federal Courts

White House blocked from ending Title 42

Advocacy groups say policy further endangered LGBTQ+ asylum seekers

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The Mexico-U.S. border in Mexicali, Mexico, on July 22, 2018. A federal judge in Louisiana has blocked the Biden administration from terminating Title 42, a Centers for Disease Control and Prevention policy that closed the Southern border to most asylum seekers and migrants because of the pandemic. The previous White House's policy was to have ended on May 23, 2022. (Washington Blade photo by Michael K. Lavers)

LAFAYETTE, La. — A Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the pandemic was to have ended Monday, but it remains in place after a federal judge blocked the Biden administration’s plans to end it.

The White House last month announced it would terminate Title 42, a policy the previous administration implemented in March 2020.

U.S. District Judge Robert Summerhays in Louisiana on May 20 issued a ruling that prevented the Biden administration from terminating the Trump-era policy. White House Press Secretary Karine Jean-Pierre in a statement announced the Justice Department will appeal the decision, while adding the administration “will continue to enforce the CDC’s 2020 Title 42 public health authority pending the appeal.”

“This means that migrants who attempt to enter the United States unlawfully will be subject to expulsion under Title 42, as well as immigration consequences such as removal under Title 8 (of the U.S. Code),” said Jean-Pierre.

Advocacy groups and members of Congress with whom the Washington Blade has spoken since Title 42 took effect say it continues to place LGBTQ asylum seekers and other vulnerable groups who seek refuge in the U.S. at even more risk.

Oluchi Omeoga, co-director of the Black LGBTQIA+ Migrant Project, last month described Title 42 as a “racist and harmful policy.” ORAM (Organization of Refuge, Asylum and Migration) Executive Director Steve Roth said Title 42 “put asylum seekers in harm’s way in border towns and prevented them from seeking safety in the United States.”

Title 42 was to have ended less than a month after five members of Congress from California visited two LGBTQ+ shelters for asylum seekers in Tijuana.

The Council for Global Equality, which organized the trip, in a tweet after Summerhays issued his ruling described Title 42 as a “catastrophe.”

“The Biden administration cannot breathe a sign of relief until it’s a matter of the past,” said the Council for Global Equality on Saturday. “We remain committed to end Title 42.”

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U.S. Federal Courts

Federal Court rules against Tennessee’s anti-Trans restroom sign law

“Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination”

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Estes Kefauver Federal Building and Courthouse Annex Nashville, TN (Photo Credit: GSA/U.S. Courts)

NASHVILLE – A U.S. District Court on Tuesday struck down the Tennessee law that required businesses and other entities that allow transgender people to use the public restroom that matches their gender to post a government-prescribed warning sign.

The measure known as House Bill 1182 (SB 1224), requires businesses or government facilities open to the public to post a sign if they let transgender people use multi-person bathrooms.

On July 9, 2021, the court granted a preliminary injunction blocking the law from going into effect, and today’s ruling strikes down the law permanently.

According to the text of the law, language would be required to be included on the signs reading: “This facility maintains a policy of allowing the use of restrooms [or another type of accommodation] by either biological sex, regardless of the designation on the restroom.”

“We applaud the court for recognizing that this law violates the First Amendment and harms transgender people,” said Hedy Weinberg, ACLU of Tennessee executive director. “Transgender individuals should be able to live their lives free of harassment and discrimination. Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination.”

Screenshot via WVLT CBS 8 Knoxville

In the U.S. District Court for the Middle District of Tennessee ruling, U.S. District Court Judge Aleta A. Trauger noted; “It would do a disservice to the First Amendment to judge the Act for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to parrot a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans whom those establishments are trying to provide with some semblance of a safe and welcoming environment.”

“Transgender Tennesseans are real. The businesses and establishments that wish to welcome them are real. And the viewpoints that those individuals and businesses hold are real, even if they differ from the views of some legislators or government officials,” Judge Trauger added.

The lawsuit was filed on behalf of Bob Bernstein and his restaurant Fido, who objected to the stigmatizing message that would have been required by this law. Fido has informal policies that allow customers to determine which restroom is appropriate for them and has not had any complaints or concerns about their restroom policies.

“As a former journalist, I believe strongly in free speech,” said Bob Bernstein, owner of Fido, a restaurant in Nashville. “The government can’t just force people to post discriminatory, inaccurate, and divisive signs in their places of business. I am glad that the court recognized that this law violates the First Amendment.”

“We’re thrilled to see the court rule in support of transgender and non-binary lives today. This signage law was simple cruelty – and cruelty is unjust,” said Henry Seaton, ACLU of Tennessee transgender justice advocate. “We’ll continue our pursuit of trans justice to its fullest extent, and hope that the trans and non-binary community feels relief and hope from this ruling.”

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U.S. Federal Courts

Federal court blocks part of Alabama trans medical treatment law

“Kids in Alabama can now continue to receive this lifesaving care, & doctors cannot be prosecuted simply for doing their jobs”

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Hugo L. Black United States Courthouse, Birmingham, Alabama (Photo Credit: US Courts/DXR)

BIRMINGHAM, Ala. — In a 32 page ruling released Friday evening, U.S. District Judge Liles Burke preliminarily enjoined the state from enforcing the law criminalizing medical care for transgender minors in Alabama.

The law made it a felony for Doctors and licensed healthcare providers to give gender-affirming puberty blockers and hormones to transgender minors.

Burke, who was nominated to the bench by former President Donald Trump to serve on the U.S. District Court for the Northern District of Alabama, wrote that the section of the Alabama Vulnerable Child Compassion and Protection Act that makes treatment of trans minor children a felony; “the Court finds that there is a substantial likelihood that Section 4(a)(1)–(3) of the Act is unconstitutional and, thus, enjoins Defendants from enforcing that portion of the Act pending trial.”

Judge Burke however ruled that all other provisions of the Act remain in effect, specifically: (1) the provision that bans sex-altering surgeries on minors; (2) the provision prohibiting school officials from keeping certain gender-identity information of children secret from their parents; and (3) the provision that prohibits school officials from encouraging or compelling children to keep certain gender-identity information secret from their parents.

The U.S. Department of Justice had challenged the state’s  SB 184 – a bill that would criminalize doctors for providing best-practice, gender-affirming care to transgender and nonbinary youth.

In the filing by the Justice Department, the complaint alleges that the new law’s felony ban on providing certain medically necessary care to transgender minors violates the Fourteenth Amendment’s Equal Protection Clause. The department is also asking the court to issue an immediate order to prevent the law from going into effect.

S.B. 184 makes it a felony for any person to “engage in or cause” specified types of medical care for transgender minors. S.B. 184 thus discriminates against transgender youth by denying them access to certain forms of medically necessary care.

It further discriminates against transgender youth by barring them from accessing particular procedures while allowing non-transgender minors to access the same or similar procedures. The penalties for violating the law include up to 10 years of imprisonment and a fine of up to $15,000. S.B. 184 would force parents of transgender minors, medical professionals, and others to choose between forgoing medically necessary procedures and treatments, or facing criminal prosecution.

The United States’ complaint alleges that S.B. 184 violates the Equal Protection Clause by discriminating on the basis of sex and transgender status.

LGBTQ legal rights advocates SPLC, GLAD, NCLR, and HRC, joined by co-counsel King & Spalding LLP and Lightfoot, Franklin & White LLC, had previously filed a legal challenge in federal district court against Alabama SB 184.

Shannon Minter, the Legal Director for the National Center for Lesbian Rights, one of the legal rights advocacy groups who had sued Alabama told the Blade late Friday night:

“We are thrilled by this outcome, which will provide enormous relief to transgender children and their families. As the court recognizes, this is well established medical care that has been endorsed by 22 major medical associations. Thanks to this decision, kids in Alabama can now continue to receive this lifesaving care, and their doctors cannot be prosecuted simply for doing their jobs. This is a huge victory for compassion and common sense and a much needed antidote to the tidal wave of hostile legislation targeting these youth.”

In addition to the U.S. Justice Department,  the doctors challenging SB 184 in Ladinsky v. Ivey are Dr. Morissa J. Ladinsky and Dr. Hussein D. Abdul-Latif, both providers at the Children’s Hospital of Alabama and members of the medical staff at the University of Alabama at Birmingham Hospital and the teaching staff at UAB School of Medicine. Dr. Ladinsky and Dr. Abdul-Latif have long-term expertise in caring for transgender children of Alabama families. Under SB 184, they both face criminal penalties including up to 10 years in prison if they continue to provide that support to their patients.

The Alabama family plaintiffs are proceeding anonymously to protect their children. They include Robert Roe, and his 13-year-old transgender daughter Mary, of Jefferson County; and Jane Doe and her 17-year-old-transgender son John, of Shelby County. These families have deep ties to Alabama. If SB 184 is allowed to go into effect both families will be forced to choose between leaving the state, breaking the law, or facing devastating consequences to their children’s health.

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