Last week, a shockingly unanimous Supreme Court led by Chief Justice John Roberts delivered a blow to LGBTQ+ rights in the guise of merely upholding religious liberty. In Fulton v. City of Philadelphia, the court sided with Catholic Social Services (CSS), an adoption and foster care agency that had denied service to queer couples. Despite Philadelphia’s explicit legal protections for LGBTQ+ residents, a 9-0 majority found that the First Amendment’s free-exercise clause protected this instance of discrimination. Even more troubling—and far less remarked upon—is that the court’s decision will likely enable right-wing corporate leaders to further erode the already precarious American social welfare state.
The court’s seemingly narrow ruling hinged on the language of the city’s contract. Although Philadelphia had never before granted exemptions to any foster care providers, its contract gave the Department of Human Services the discretion to do so. The court seized on this wording—because the City could have granted CSS a pass to discriminate, its failure to do so was a denial of religious liberty.
Notably, Philadelphia did not target anyone’s religious belief in drafting its standard adoption contract; it merely gave itself the authority to make exceptions if ever necessary (and for any reason, secular or religious). In holding that this provision itself is unconstitutional, the court has sneakily turned upside down an entire tradition of law. That is, the burden of proof is now on the City to show that it has a compelling interest (i.e., the highest standard that a court can require) to deny religious exemptions to everything from antidiscrimination protections to routine rules and procedures.
In practice, this could hinder even the most basic functions of government and quickly turn the administrative state into Swiss cheese. Indeed, local government leaders and attorneys warned that this is precisely what could happen if exemptions were made the law of the land. In an amicus curiae brief supporting Philadelphia, they predicted that a ruling in favor of CSS will “affect every aspect of public services offered through public-private partnerships,” which have become the norm in the age of neoliberalism.
As for LGBTQ+ rights more specifically, the decision could have been even worse. Although CSS had asked the court’s Republican-appointed majority to fundamentally rewrite its First Amendment doctrine—something that arch conservative Justice Samuel Alito has made his mission for decades—the court’s ruling was far more tempered. This may explain how the liberals were swayed to join.
While the court balked on the question of whether all civil rights laws merit massive religious exemptions, it did narrow the scope of many existing LGBTQ+ rights laws. Citing Pennsylvania law, which the majority willfully misread, the court ruled that foster and adoption care services are not “public accommodations,” like restaurants, hotels, bus stops, and the innumerable other public places where civil rights law has wiped out everything from segregated water fountains to refusals of service. This is a notable departure from the pro-LGBTQ+ Equality Act’s definition of public accommodations, which specifically includes foster and adoption services. If the Senate Democrats ever manage to pass the Equality Act, the court might immediately poke holes into its protections.
Fulton may finally change the perception that the Supreme Court can be a reliable custodian of LGBTQ+ rights. It is true that, even in an era of GOP dominance, the court has handed down several pro-LGBTQ+ rights decisions. After all, it was Roberts and the Trump-appointed Justice Neil Gorsuch who cast the decisive votes last summer in Bostock v. Clayton County, a case that granted federal civil rights protections to gay and trans employees.
However, attentive court watchers have cautioned that religious liberty might soon encroach on these newborn equal rights victories. In 2018’s Masterpiece Cakeshop, Justice Gorsuch wrote a concurring opinion in which he suggested that the First Amendment may allow Christian bakers to deny service to queer couples shopping for custom wedding cakes. And in his ostensibly pro-equality opinion in Bostock, Gorsuch warned that religious employers may indeed merit exemptions that would allow them to discriminate against their queer workers.
Gorsuch’s warnings actually came to pass prior to Fulton. This spring, the court’s Republican bloc struck down California’s Covid-19 public health measures restricting religious persons from gathering in groups of three or more households. In a ruling that jettisoned over three decades of religious free-exercise doctrine, the court reasoned that California’s decision to allow commercial enterprises like retail outlets and hair salons to remain open while forcing church doors to close violated the First Amendment’s religious liberty protections. Casting aside abundant evidence demonstrating the heightened danger of large groups’ congregating in close quarters and singing, the court opened the way to a deluge of new religious exemption claims.
The court’s creeping assault on LGBTQ+ rights is somewhat perplexing given its recent deference to queer rights advocates in corporate America. In Bostock, a coalition comprising over $5 trillion in annual revenue and including the likes of Apple, Amazon, and JPMorgan Chase, argued that their employees—and their bottom lines—benefited from robust antidiscrimination laws. In Fulton too, corporations including Google and Nike jointly filed an amicus brief extolling LGBTQ+-friendly cities and states for their competitive edge in recruiting talent and for patent citations, among other indicators of economic advantage.
Political entrepreneurs in the billionaire class have also pressured government officials to defend equal rights. Self-described “compassionate capitalist” and Salesforce CEO Marc Benioff, for instance, has helped beat back discriminatory legislation in several GOP-controlled statehouses since 2015. Similarly, activist corporate leaders working with Freedom for All Americans have led campaigns and boycotts against bills that deny trans youth the right to play sports and to access medical care.
While corporate public relations departments have grabbed headlines for their support of antidiscrimination protections, these companies are greatly outflanked by politically entrenched and powerful moneyed interests that have quietly—and relentlessly—been undermining civil rights and social welfare since the Reagan revolution. Business lobbies such as the American Legislative Exchange Council and religious conservative ones like the Heritage Foundation have worked together to transfer wealth upward and shrink the democratic sphere. This conservative coalition has devoted its resources to filling seats across all branches of government—from staffing the Executive Branch, to electing legislators, to transforming the judiciary.
While Coca-Cola (along with 72 Black business executives) won the spotlight for opposing Georgia’s recent voter suppression law, conservative dark-money groups worked in the shadows. In the last year alone, they quietly crafted and introduced over 360 voting restrictive bills in 47 states. Similarly, though the oil tycoon David Koch once voiced support for marriage equality, Koch Industries—along with a suite of over 60 companies—made considerable campaign donations to GOP lawmakers who have since introduced anti-transgender bills across the states.
For the Koch brothers, putting queer rights on the chopping block was merely the cost of doing business with their conservative coalition partners. Just before his death in 2019, David Koch admitted as much. When asked why he was willing to donate large sums of money to right-wing organizations that espoused social positions different from his own, he said, “That’s their problem. I do have those views…. What I want these candidates to do is to support a balanced budget.” To that end, the Kochs had no objection when their foundation, Americans for Prosperity, supported Catholic Social Services in Fulton.
Another pending Supreme Court case from this term reveals the conservative coalition’s broader efforts to rig the rules of democracy. In Americans for Prosperity Foundation v. Bonta, attorneys representing dark-money philanthropy have argued that nonprofits have the right to conceal their donors’ identities from the state. If Americans for Prosperity wins, which it likely will, the court will have sanctioned yet another avenue by which corporate interests can influence politics without any transparency or democratic accountability. This decision would join a host of other cases like Citizens United and Hobby Lobby that have allowed corporate giants to wield free speech rights and that have granted religious for-profit firms the right to deny reproductive health care to their employees.
Indeed, the entire 20th-century civil rights tradition is presently being warped beyond recognition. Americans for Prosperity has not shied away from comparing the plight of its donors to downtrodden racial minorities. Its argument before the Supreme Court was replete with citations to cases that the National Association for the Advancement of Colored People (NAACP) won decades ago to safeguard its members and donors from vindictive segregationists. In fact, the NAACP along with the ACLU and the Human Rights Campaign have penned an amicus brief encouraging the court to side with Americans for Prosperity.
The right has made much hay about their liberal allies. It should not be shocking, however, that civil rights groups wish to preserve their hard-won judicial precedents—let alone to shield their contemporary backers from harassment and violence. The tragic irony is that the country’s largest LGBTQ+ political organization has joined forces with Americans for Prosperity, which often stokes the revanchist views that place queer people in danger and deny them rights.
What both Fulton and the Americans for Prosperity Foundation cases drive home is that the Koch social conservative coalition is running the show, not the “enlightened” capitalists. While the latter sometimes thwart discriminatory efforts—and have even on rare occasions encouraged the Supreme Court to expand legal rights—they lack the foresight and the decades-long head start that characterize their more ruthless counterparts. They also lack the constituency and force of last century’s civil rights advocates and trade unionists, who together advanced an alternative vision of equality and self-rule. That so many Americans apparently believe that achieving civil rights now largely depends on activist CEOs and the donations of undisclosed backers tells us much about the shriveled state of our democracy.