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Dark Money, the Supreme Court, and the Fate of LGBTQ+ Rights

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.

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