The court will hear cases on discrimination in foster care and the validity of the Affordable Care Act.
On Monday, a week before Election Day, the Senate confirmed the nomination of Judge Amy Coney Barrett, who has a long record of anti-LGBTQ remarks and positions, to the Supreme Court by a vote of 52-48.
Barrett's confirmation creates a conservative majority on the Supreme Court as it prepares to hears arguments in a number of cases that are of monumental importance to the LGBTQ community. These include the Republican effort to invalidate the Affordable Care Act, which includes regulations that provide protections to LGBTQ people in health care, and a case that could open the door to anti-LGBTQ discrimination in food banks, foster care, and other services funded by taxpayer money.
Barrett's record on issues such as marriage equality, transgender people's rights, and anti-LGBTQ discrimination is deeply concerning to LGBTQ advocacy groups. More than 180 LGBTQ organizations, including the Human Rights Campaign, Lambda Legal, Transgender Law Center, and the National Black Justice Coalition, signed a letter in official opposition to her nomination.
"Her presence on the Court would change the current balance of the Court dramatically, in ways that are highly likely to cause lasting harm to LGBTQ people and other vulnerable groups," the organizations said.
Barrett has been associated with groups and institutions determined to fight LGBTQ equality and aligned herself with court opinions opposing LGBTQ rights. In a lecture she gave in 2016, Barrett called transgender women "physiological males" and said the dissent in the landmark Supreme Court case of Obergefell v. Hodges against marriage equality was over whether the court should decide the question rather than a matter of opposing or supporting LGBTQ people marrying.
Barrett has ties to the Alliance Defending Freedom, an organization that is considered an anti-LGBTQ hate group by the Southern Poverty Law Center. She spoke at a number of events for the Blackstone Legal Fellowship, a program run by the alliance.
The Associated Press reported last week that Barrett also served on the board of a private Christian school that holds that homosexuality is an abomination against God and blocks the children of same-sex couples from attending, as well as keeping gay teachers from working in its locations.
The same year that Barrett became a trustee for the board, she signed on to a letter that affirmed the truth of Catholic Church teachings on "marriage and family founded on the indissoluble commitment of a man and a woman" and "the significance of sexual difference and complementarity of men and women."
When asked about matters of LGBTQ equality during her confirmation hearings and on the questionnaire she filled out for the Senate Judiciary Committee, Barrett consistently dodged the question. But during one of the sessions of her confirmation hearing, Barrett called sexual orientation "sexual preference," which some advocacy groups called a "dog whistle" to opponents of LGBTQ people's rights.
These are all signs that Barrett's presence on the court is bad news for LGBTQ people and their allies who wish to see the court rule in favor of their equality and human rights.
Fulton v. City of Philadelphia
Fulton v. City of Philadelphia, which is scheduled to be argued before the court on Nov. 4, centers on a suit filed against the city by Catholic Social Services. The city had stopped referring foster children to the organization due to its discrimination against same-sex couples and other based on claims of religious beliefs.
In August, the American Civil Liberties Union filed a brief telling the court it should rule against a "license to discriminate in taxpayer-funded services."
Lindsay Mahowald and Carolina Medina, staff members at the Center for American Progress' LGBTQ Research and Communications Project, wrote about the possible effects of a ruling in the case on LGBTQ people's access to government services this month. They noted that a ruling against the city would also effect homeless shelters, hospitals, disaster relief agencies, and food banks, adding to the barriers LGBTQ people already face in seeking these services.
"If agencies demand public funding while providing government services that violate the terms of their contracts, it would be nearly impossible for state and local governments to standardize the provision of public services," they wrote. "Moreover, it would undermine the goal of these services—to reach eligible recipients, not provide private entities with government contracts. The realization of such discriminatory policies is detrimental to public health and safety as well as effective and efficient government service delivery."
Sen. Mike Lee (R-UT) asked Barrett about issues of religious liberty during a confirmation hearing. Barrett responded that the court has been "very clear that religious institutions can't be discriminated against, or excluded from public programs, simply because they are religious."
California v. Texas
California v. Texas, scheduled to be heard on Nov. 10, concerns the validity of the Affordable Care Act and could result in the elimination of the health care law in its entirety, which would have devastating effects on the LGBTQ community.
Eighteen Republican state attorneys general brought the case to the Supreme Court and are arguing that the Obamacare is unconstitutional. The Trump administration said it wants the court to strike down the law. Barrett signed a statement calling the law's contraception coverage a "grave infringement on religious liberty" and wrote an essay criticizing Chief Justice John Roberts' majority opinion in a case that left the law intact.
Section 1557 of the ACA includes protections for transgender people. It prohibits discrimination in health care on the basis of sex, which it explicitly says includes transgender people under the term "gender identity." This year, the Trump administration issued a final rule that eliminated that definition of sex discrimination, but a federal judge has blocked it from going into effect.
LGBTQ policy advocates have said they are concerned that a more conservative court could undo the progress LGBTQ people have made in health care access thanks to the ACA, a prospect that is particularly worrisome during the coronavirus pandemic.
Experts on LGBTQ policy and law have previously expressed concerns about other issues that a Trump-appointed justice could rule on in the near future, including same-sex couples' access to certain federal benefits and recognitions, abortion access, and LGBTQ people's asylum claims.
Published with permission of The American Independent Foundation.