Thursday, June 17, 2021

Unpacking the Fulton case - The anti-LGBTQ right fails again in attempt to enshrine homophobic religious bigotry into law


The Human Rights Campaign should be credited with how quickly it came out with its statement after SCOTUS's ruling.

By now, we are all aware that the Supreme Court ruled for a Philadelphia Catholic adoption agency  in the latest attempt by the religious right to enshrine homophobic religious bigotry into law.  But just in case some of us aren't, here is a recap from The Huffington Post:

The Supreme Court unanimously ruled in favor of faith-based foster agency Catholic Social Services in a case that has significant implications for LGBTQ foster parents as well as taxpayer-funded groups’ ability to discriminate against queer people or other faiths based on “religious freedom.” The case centers around two local foster agencies that the city of Philadelphia found would not work with same-sex couples as foster parents in 2018. The city deemed this a violation of their anti-discrimination policies, and stopped referring foster kids to those agencies. One agency, Catholic Social Services, sued the city, saying it was violating its First Amendment rights and demanding the city continue working with it even as it turned away gay couples as foster parents. In a decision released Thursday, the court held that Philadelphia’s refusal to contract with CSS violates the free exercise clause of the First Amendment, which protects a person’s right to freely exercise their religion. The ruling requires the city of Philadelphia to renew its contract with CSS. 

But don't grab your weeping towels just yet. You see there were broader implications in this case. Via this case, the religious right was hoping for a broader ruling which would prevent the enforcing of non-discrimination laws. But the SCOTUS ruling was extremely narrow, which means they failed in their goal. 

According to SCOTUSBlog:

Thursday’s ruling was a victory for Catholic Social Services, an organization associated with the Archdiocese of Philadelphia, and two foster parents, who alleged that Philadelphia’s refusal to make foster-care referrals to CSS discriminated against the group because of its religious beliefs about traditional marriage. But the decision fell short of the broad endorsement of religious freedom that the challengers had sought. While the justices unanimously agreed with CSS and the foster parents that the city’s action was unconstitutional, a six-justice majority left intact the Supreme Court’s 1990 decision in Employment Division v. Smith, which held that government actions do not violate the Constitution’s free exercise clause as long as they are neutral and apply to everyone.

Let me put in layman's terms:

The religious right wanted SCOTUS to overturn a 1990 precedent it had set in another case.  And this would have allowed anti-gay discrimination on the basis of religious beliefs, which also enshrines the right of entities to receive LGBTQ tax dollars while practicing anti-LGBTQ discrimination.  But SCOTUS said that governments can enforce non discrimination laws and the like as long as they are applied fairly and neutrally. SCOTUS ruled that in this case, the city of Philadelphia did not. It was a narrow ruling which only applied to that specific case.

Thursday's SCOTUS ruling is not unlike the Masterpiece ruling in 2018. The court ruled pretty much the same way as in this case - that the business in question,  a bakery in Colorado, was the victim of anti-religious bias by a civil rights commission because the owner's refused to make a cake for a gay couple in accordance to his his religious beliefs. The ruling then was also narrow and did not create an enshrinement of discrimination on the basis of religious beliefs.

While I am not an attorney by any means, allow me to unpack some thoughts how the LGBTQ community lost and won via this case. It's simply my opinion.

Losses - Of course the unanimous ruling against the city of Philadelphia is the big loss here. While the religious right didn't get what it wanted, the victory gives them incentive to press forward in their attempts to undermine LGBTQ rights and enshrine into law a right to discriminate on religious grounds. They've failed twice but if I know anti-LGBTQ groups (the Beckett Fund, the Alliance Defending Freedom, and others), they've already began planning their next step.  We have not seen the last of this.

Wins - The simple fact that the religious right did not get what they wanted here is a big win for the LGBTQ community. My guess is that with a conservative majority on the court, they were expecting a big win. But they only succeeded in getting a narrow win, which they can't do much with even though they will try.

How they are probably feeling now is best summed up by Justice Alito (who has not been neutral with regards to his belief that religious beliefs trumps LGBTQ rights). He wasn't happy that the ruling didn't overturn the 1990 precedent set by the Smith case:

In his 77-page concurring opinion, Alito argued that the court’s decision in Smith is a “severe holding” that is “ripe for reexamination.” He complained that, after all of the time and attention devoted to the case, the Supreme Court had issued only “a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed,” Alito concluded. He added, “as am I.”

Also, usually with a victory, however minor, comes bragging rights or an ability to set the narrative. I get the impression that religious right groups were caught off guard with just how narrow their victory was. Perhaps they expected a complete victory with a conservative majority on SCOTUS. Whatever the case may be, their usual ability to control the narrative was lacking here. The decision was scarcely announced on twitter before the Human Rights Campaign  sent the following online. 

Other LGBTQ groups and allied groups were quick to send out their own tweets and statements. By comparison, anti-LGBTQ groups were a bit slow. Gradually the Family Research Council, the American Family Association, and other religious groups sent out tweets and statements, but the narrative, that the case was decided on very narrow grounds and did not establish a religious right to discriminate, had already been established.

So basically, this ends another chapter in the so-called culture war with regards to LGBTQ rights and safety. And it is a definitive one. Based on its two rulings in the cases involving LGBTQ rights vs. religious beliefs, SCOTUS seems to know what the religious right is attempting to accomplish, but also seems to reluctant to give these groups what they want. Not yet at least. 

Meanwhile this ruling underscores just how much of a intricate war this is. I constantly hear many of my LGBTQ brothers and sisters talking about "taking to the streets" and protesting. That is not going to do. At least not by itself.  Taking to the streets in loud protests won't help that much against opponents with deep pockets, powerful connections in government, and the patience for long planning - all of which those groups who oppose us have and then some.

The first thing we need to do as a community is stop ignoring these groups. Stop believing the inane idea that if we ignore these groups, they will go away. They aren't going away no matter what we do. We need to talk about these groups, make them the topic of conversations in not only our media but the media in general. Stop allowing them to put us on the defensive. Put them on the defensive for a change. Make them the topic of conversation instead of us. We shouldn't have to explain why we are deserving of our rights.

They should be made to explain why they want to take our rights away..

'The protest before Stonewall' & other Thur midday news briefs

Before Stonewall, LGBTQ history was made at Bucks County Community College — and then forgotten. Until now. - Not putting down Stonewall by no means, but there seems to be a laziness with implying that Stonewall began it all for LGBTQ people in America. If there were protests before Stonewall, then what else are we minimizing in LGBTQ history?