A major LGBTQ civil rights case, Fulton v. City of Philadelphia, is scheduled to be heard on November 4, the day after the election.
The court will decide whether the city of Philadelphia violated religious liberty rights when it cut ties with Catholic City Services, an adoption agency that refuses to place children with same-sex couples.
Becket Law, the law firm representing Catholic City Services, cites the teachings of the Catholic Church for that policy.
“As part of the Catholic Church, however, the agency can’t endorse same-sex or unmarried couples as agency partners serving foster children in need,” the firm says on its website. “Instead, Catholic Social Services will help these couples find another agency that can partner with them.”
In Obergefell v. Hobbes, in 2015, then-swing Justice Anthony Kennedy sided with the then-four liberal justices to establish the legality of same-sex marriage nationwide.
Since then, the only major LGBTQ rights case the court has heard was Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in 2018, over a baker who refused to decorate a cake for a same-sex couple. In that case, the court delivered a 7-2 decision sidestepping the issue of whether the baker illegally discriminated against the couple, and instead ruled based on procedural grounds.
With Barrett, Goldberg said, the conservatives on the court now have a clear majority to rule against LGBTQ civil rights. Advocates are especially wary of Barrett because she’s given numerous paid speeches to Alliance Defending Freedom, a conservative legal group that’s been on the anti-LGBTQ side of both Obergefell and Masterpiece Cakeshop.
“I think it’s pretty clear where Amy Coney Barrett stands with respect to equality for LGBTQ Americans,” Goldberg said. “Her Writing has made that clear, [and] she certainly did nothing to alleviate the concerns of millions of people across the country that she is somebody who thought Obergefell was wrongly decided.”
In this case, the court will also revisit the 1990 decision Employment Division Department of Human Resources of Oregon v. Smith, which forbade a religious exemption for general law. With Barrett’s confirmation, there would be five votes to overturn it, according to UCLA Berkley Law School dean Erwin Chemerinsky.
“Now, though, conservatives favor such exemptions, and there well may be five votes to overrule Employment Division,” Chemerinsky wrote in the American Bar Association Journal, adding that doing so would “dramatically expand the protection of free exercise of religion, including as a basis for an exemption from anti-discrimination laws.”