GLBTQ Legal Advocates & Defenders, joined by Georgia Equality and 26 other national, regional and state LGBTQ advocacy organizations, filed a friend-of-the-court brief August 20 urging the U.S. Supreme Court not to create a broad Constitutional exemption to nondiscrimination laws that would undermine equal protection guarantees and introduce a dangerous and unworkable scheme into local, state and federal lawmaking.

The brief was filed in support of the City of Philadelphia in Fulton v. City of Philadelphia. In 2018, the city suspended a contract with Catholic Social Services (“CSS”) to provide foster care placement services because the agency refused to work with married same-sex couples and unmarried couples in violation of Philadelphia’s nondiscrimination ordinance. CSS filed suit, asserting that the requirement to comply with the nondiscrimination law violated its religious liberty rights and seeking an injunction ordering the city to grant CSS a contract in accordance with the terms CSS desired. Lower courts denied the request for an injunction, ruling that the city was within its rights to require any agency with which it contracts to comply with the law.

Were the Supreme Court to side with CSS, it could create a broad exemption from nondiscrimination laws that extends not only to any religiously-based entity that receives taxpayer funding to provide government-contracted services, but potentially to any individual government employee or private entity that claims religious belief as a reason not to comply with the law. Such a rule would invite increased discrimination against LGBTQ people as well as people of color, women, and members of minority faiths.

“Religious belief is protected in our laws and Constitution and it is due respect,” said Mary L. Bonauto, GLAD’s Civil Rights Project Director. “However, the breadth of the exemption being sought by CSS in Fulton would take our nation backwards. It would allow individual religious disapproval to work its way back into lawmaking – a situation that is contrary to the promise of equal protection for all embedded in our Constitution, and one that the American people and two decades of Supreme Court precedent have already rejected.”

Most immediately in the child welfare context, the rule CSS seeks would further stigmatize both LGBTQ parents and LGBTQ youth impacted by the child welfare system.

It could, however, stretch far beyond that to introduce discrimination in other vital government services including care facilities for children, seniors, or those who are severely disabled, substance use disorder treatment programs, food and clothing banks and more. Such a rule could also dangerously extend to individual government or healthcare workers, who could be permitted to rely on individual religious beliefs to turn away or deny services to LGBTQ people from medical treatment to social security benefits. A hospital worker who disapproves of same-sex relationships could attempt to bar a spouse or child from visiting a sick or injured loved one in the hospital.

The LGBTQ organizations’ brief chronicles the growing recognition and inclusion of LGBTQ people as equal citizens and full participants in American society over time, both through the democratic process and through the force of over two decades of Supreme Court precedent – from Romer (1996) and Lawrence (2003), to Windsor (2013), Obergefell (2015), Masterpiece Cake (2018) and most recently Bostock (2020).

It highlights the dangerous reversal at stake in the rule sought by CSS that would deny the full promise of liberty and equality to LGBTQ people as well as other Americans who already face harsh barriers to equity and equality.

The brief, filed by GLAD and Goodwin on behalf of GLAD, BiLaw, Equality Federation, Freedom for All Americans, Human Rights Campaign, Movement Advancement Project, National Black Justice Coalition, National Equality Action Team, Transgender Law Center, Transgender Legal Defense and Education Fund, Basic Rights Oregon, Equality Florida Institute, Inc., Equality Illinois, Equality Maine, Equality Ohio, Equality Utah, Equality Virginia, Fair Wisconsin, Fairness Campaign, FreeState Justice – Maryland’s LGBTQ Advocates, Georgia Equality, Massachusetts Transgender Political Coalition, MassEquality, Montana Gender Alliance, OutFront Minnesota, OutNebraska, and the Tennessee Equality Project, is available here.