Conservative justices angered by SCOTUS refusal to hear religious accommodation cases

On April 5, the U.S. Supreme Court refused to hear an appeal that could have further expanded religious freedom accommodations in the workplace. Two of the court’s conservative justices, Samuel Alito and Neil Gorsuch, issued an angry dissent, disagreeing strongly with the decision. Gorsuch argued that people of faith do not receive the same Title IX accommodations as other protected groups. But the Trump administration’s Department of Justice rescinded Obama-era Title IX protections for sexual orientation and gender identity.

The Supreme Court has taken an expansive view of religious liberties in several cases in recent years, most of which have dealt with LGBTQ people, like the 2018 Masterpiece Cake Shop case in which the court found that a baker had the right to refuse to bake a wedding cake for a gay couple based on his religious beliefs.

With the new conservative majority, the court has allowed churches and synagogues to over-rule COVID-19 restrictions. The court has also granted religious exemptions to employers with regard to health insurance coverage for contraceptives or other hormone treatments.

Religious freedom expansions have been used by the courts to contravene existing LGBTQ rights in the states. The Trump administration routinely used expansion of religious freedom laws to undermine LGBTQ civil rights. As PGN reported in January, Trump’s HHS finalized a 77 page ruling that the Biden administration has yet to overturn.

The Trump policy narrowed nondiscrimination protections for LGBTQ people seeking services of health and welfare programs that are funded by HHS. The regulation, which went into effect on Feb. 11, states that an Obama-era protection for sexual orientation and gender identity violates the Religious Freedom Restoration Act.

That ruling overturned 45 CFR 75.300 (c) which stipulated that social service and healthcare providers cannot discriminate on the basis of age, disability, sex, race, color, national origin, religion, gender identity or sexual orientation in receiving benefits of HHS programs.

In its April 5 decision, by refusing to expand the breadth of religious freedom laws even further, the Supreme Court may have inadvertently offered more protections for LGBTQ people who are the most frequent victims of these laws.

The justices declined to hear appeals by two men of different Christian denominations — a Jehovah’s Witness from Tennessee and a Seventh-day Adventist from Florida — of lower court rulings that rejected their claims of illegal religious bias. Lower courts found that the accommodations the men sought would have placed too much hardship on the employers. By refusing to hear the case, the SCOTUS agreed with the lower courts.

This decision may also bolster another LGBTQ rights case that will inevitably head toward the high court. On April 5, the Religious Exemption Accountability Project filed a lawsuit against the U.S. Department of Education, alleging mistreatment by certain institutions including Liberty University.

The class action lawsuit, with 33 plaintiffs, claims Title IX’s religious exemption allows colleges and universities — all of which receive federal funding — to discriminate against LGBTQ students.

LGBTQ rights and civil liberties are being decided by the court this year, with religious freedom being the focal point. One major case, Fulton v. Philadelphia, will be decided in June. The court heard arguments in November.

At issue is whether the City of Philadelphia can refuse to work with a Catholic charity that declined to screen same-sex couples as foster parents. Some legal scholars argue how the SCOTUS has ruled on the COVID-19 disputes indicate that Philadelphia may lose the case, due to the religious freedom aspect.

The Fulton case queries whether government contractors, such as the Catholic foster care agency, may object to anti-discrimination requirements when they in fact are working for the government. But that question is countered by whether the government must offer exceptions to religious groups if they offer exemptions to secular organizations.

This is where the decisions the Supreme Court has made regarding COVID-19 could influence Fulton and other LGBTQ cases.

In the Fulton case, Philadelphia argues that it can prohibit same-sex discrimination by its contractors against Catholic Social Services, which asserts it cannot screen same-sex couples to be foster parents because it opposes gay marriage on religious grounds.

Part of the issue in the Philadelphia dispute is what test the court will use to determine whether a law violates the First Amendment right to free exercise of religion. That test was found lacking in the Tennessee and Florida cases that came before the court on April 5.

But the strident dissents from Alito, who delivered a scathing anti-LGBTQ speech to the Federalist Society in December, and Gorsuch, as well as previous dissents from Justices Barrett and Thomas, raise serious questions for looming LGBTQ rights cases, including Fulton.

In his speech to the Federalist Society, in which he discussed both LGBTQ rights and coronavirus restrictions on churches, Alito asserted falsely that “You can’t say that marriage is a union between one man and one woman. Until recently, that’s what the vast majority of Americans thought. Now, it’s considered bigotry.”

Alito argued that the 2015 Obergefell v. Hodges case that legalized same-sex marriage — and in which he dissented — was wrong. 

Alito cited his dissent in which he had said that the majority’s opinion in the case would lead to those who “cling to traditional views on marriage being labeled as bigots and treated as such by governments, employers and schools.” He then warned that freedom of speech is “falling out of favor in some circles” and at risk of becoming a “second-tier constitutional right.”

Alito linked LGBTQ rights cases to suppression of the free speech rights of conservatives.

That Alito will find in favor of Fulton is already clear based on his Federalist speech. But Fulton could be decided based on whether the court finds that any secular exceptions to a law — like allowing bars or salons or retail stores to open — means there must be equivalent exemptions for religious establishments.

Yet the April 5 cases suggest that there is a stopping point for some of the conservative justices, if not Alito and Gorsuch.

The addition of yet another Catholic conservative justice to the court in October, when Amy Coney Barrett was sworn in, expanded the religious freedom caucus of the court. Yet even before she was added, the court allowed taxpayer money to be directed to religious entities in some situations, exempted employers with religious objections from requirements that they provide health insurance coverage for contraceptives or LGBTQ healthcare, and let a massive Latin cross stay on government land just miles from the Capitol.

Recent religious freedom cases like the ones addressed on April 5 have been decided via the SCOTUS’s so-called “shadow docket,” meaning they have been decided quickly, without oral argument, and often without an opinion from the court.

Unless there is a dissent, as there was from Alito and Gorsuch. What the court decides next remains to be seen, but religious freedom will continue to be a focal point for the court, and it could decide LGBTQ cases either way.

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Victoria A. Brownworth is a Pulitzer Prize-nominated award-winning journalist whose work has appeared in The New York Times, the Los Angeles Times, The Philadelphia Inquirer, Baltimore Sun, DAME, The Advocate, Bay Area Reporter and Curve among other publications. She was among the OUT 100 and is the author and editor of more than 20 books, including the Lambda Award-winning Coming Out of Cancer: Writings from the Lesbian Cancer Epidemic and Ordinary Mayhem: A Novel, and the award-winning From Where They Sit: Black Writers Write Black Youth and Too Queer: Essays from a Radical Life.