More LGBT Issues Loom for SCOTUS 05/26 10:27
WASHINGTON (AP) -- A flood of lawsuits over LGBT rights is making its way
through courts and will continue, no matter the outcome in the Supreme Court's
highly anticipated decision in the case of a Colorado baker who would not
create a wedding cake for a same-sex couple.
Courts are engaged in two broad types of cases on this issue, weighing
whether sex discrimination laws apply to LGBT people and also whether
businesses can assert religious objections to avoid complying with
anti-discrimination measures in serving customers, hiring and firing employees,
providing health care and placing children with foster or adoptive parents.
The outcome of baker Jack Phillips' fight at the Supreme Court could
indicate how willing the justices are to carve out exceptions to
anti-discrimination laws; that's something the court has refused to do in the
areas of race and sex.
The result was hard to predict based on arguments in December. But however
the justices rule, it won't be their last word on the topic.
Religious conservatives have gotten a big boost from the Trump
administration, which has taken a more restrictive view of LGBT rights and
intervened on their side in several cases, including Phillips'.
"There is a constellation of hugely significant cases that are likely to be
heard by the court in the near future and those are going to significantly
shape the legal landscape going forward," said Shannon Minter, legal director
of the National Center for Lesbian Rights.
Several legal disputes are pending over wedding services, similar to the
Phillips case. Video producers, graphic artists and florists are among business
owners who say they oppose same-sex marriage on religious grounds and don't
want to participate in same-sex weddings. They live in the 21 states that have
anti-discrimination laws that specifically include gay and lesbian people.
In California and Texas, courts are dealing with lawsuits over the refusal
of hospitals, citing religious beliefs, to perform hysterectomies on people
transitioning from female to male. In Michigan, the American Civil Liberties
Union filed suit against the state's practice of allowing faith-based child
placement agencies to reject same-sex couples.
Advocates of both sides see the essence of these cases in starkly different
"What the religious right is asking for is a new rule specific to same-sex
couples that would not only affect same-sex couples but also carve a hole in
nondiscrimination laws that could affect all communities," said Camilla Taylor,
director of constitutional litigation at Lambda Legal, which supports civil
rights for LGBT people.
Jim Campbell of the Christian public interest law firm Alliance Defending
Freedom said the cases will determine whether "people like Jack Phillips who
believe marriage is the union of a man and a woman, that they too have a
legitimate place in public life. Or does he have to hide or ignore those
beliefs when he's participating in the public square?" ADF represents Phillips
at the Supreme Court.
The other category of cases concerns protections for LGBT people under civil
rights law. One case expected to reach the court this summer involves a
Michigan funeral home that fired an employee who disclosed that she was
transitioning from male to female and dressed as a woman.
The 6th U.S. Circuit Court of Appeals ruled that the firing constituted sex
discrimination under federal civil rights law. That court is one of several
that have applied anti-sex discrimination provisions to transgender people, but
the Supreme Court has yet to take up a case.
The funeral home argues in part that Congress was not thinking about
transgender people when it included sex discrimination in Title VII of the 1964
Civil Rights Act. A trial judge had ruled for the funeral home, saying it was
entitled to a religious exemption from the civil rights law.
"Congress has not weighed in to say sex includes gender identity. We should
certainly make sure that's a conscious choice of Congress and not just the
overexpansion of the law by courts," Campbell said. ADF also represents the
In just the past week, two federal courts ruled in favor of transgender
students who want to use school facilities that correspond to their sexual
identity. Those cases turn on whether the prohibition on sex discrimination in
education applies to transgender people. Appeals in both cases are possible.
In the past 13 months, federal appeals courts in Chicago and New York also
have ruled that gay and lesbian employees are entitled to protection from
discrimination under Title VII. Those courts overruled earlier decisions. Title
VII does not specifically mention sexual orientation, but the courts said it
was covered under the ban on sex bias.
The Obama administration had supported treating LGBT discrimination claims
as sex discrimination, but the Trump administration has changed course. In the
New York case, for instance, the Trump administration filed a legal brief
arguing that Title VII was not intended to provide protections to gay workers.
It also withdrew Obama-era guidance to educators to treat claims of transgender
students as sex discrimination.
There is no appeal pending or expected on the sexual orientation issue, and
there is no guarantee that the court will take up the funeral home's appeal
over transgender discrimination.
The trend in the lower courts has been in favor of extending civil rights
protections to LGBT employees and students. Their prospects at the Supreme
Court may be harder to discern, not least because it's unclear whether the
court's composition will change soon.
Justice Anthony Kennedy, 81, has been the subject of retirement speculation,
though he has not indicated he is planning to retire. When Justice Stephen
Breyer turns 80 in August, he will join Kennedy and Justice Ruth Bader
Ginsburg, 85, as octogenarians on the bench.
If President Donald Trump were to replace any of those justices, the court
probably would be much less receptive to LGBT rights. Even the landmark gay
marriage ruling in 2015 that Kennedy wrote was a 5-4 decision.
"We're very concerned about the composition of the federal bench. Under the
Trump administration, we've seen a number of federal nominees who have been
ideologues, who have taken positions about the very right to exist of LGBT
people that is simply inconsistent with fitness to serve as a federal judge,"
The ADF's Campbell said that even with the current justices, he holds out
some hope that the court would not extend anti-discrimination protections.
"Justice Kennedy has undoubtedly been the person who has decided the major LGBT
cases, but to my knowledge he hasn't weighed in some of these other issues," he