October 6, 2020

SCOTUS Term Begins

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“The Supreme Court officially [began] its new term on Monday.” SCOTUSblog

“The Supreme Court is leaving in place a decision that allowed a lawsuit to move forward against a Kentucky clerk who was jailed in 2015 after refusing to issue marriage licenses to same-sex couples… Supreme Court justice Clarence Thomas wrote for himself and Justice Samuel Alito that while he agreed with the decision not to hear the case, it was a ‘stark reminder of the consequences’ of the court’s 2015 decision in the same-sex marriage case.” AP News

On November 4, the Court will hear Fulton v. City of Philadelphia, “a challenge by several foster parents and Catholic Social Services to the city’s policy of cutting off referrals of foster children to CSS for placement because the agency would not certify same-sex couples as foster parents.” SCOTUSblog

See past issues

From the Left

The left is critical of Justice Thomas and worries about the rights of the LGBTQ+ community.

“Thomas, joined by Alito, wrote a [concurrence] in defense of Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples, painting her as a modern-day martyr… While Thomas spilled much ink complaining that Kim Davis was persecuted by the government, he never grappled with the fact that Kim Davis was the government…

“As a county clerk, Davis had a responsibility to perform her official duties, which included providing marriage licenses. She was not persecuted for private beliefs but for her failure to do her job. Thomas warned of Obergefell’s ‘ruinous consequences’ for religious freedom, fretting that anti-gay Americans will no longer be able ‘to participate in society.’ But his real fear seems to be that Americans—including judges and voters—will criticize opponents of marriage equality who transform their religious views into official discrimination.”
Mark Joseph Stern, Slate

“In some respects, the objections of conservatives Thomas and Alito simply echoed their dissents five years ago in Obergefell v. Hodges. But timing is everything, and nothing is quite the same at the Supreme Court since the September 18 death of Justice Ruth Bader Ginsburg… It is not as easy to declare -- as it was just a month ago -- that the high court is unlikely to reverse the milestone decision that now seems woven into American life…

“Nearly 300,000 same-sex couples have married since the decision… ‘When you do a job on behalf of the government -- as an employee or a contractor -- there is no license to discriminate or turn people away because they do not meet religious criteria," [James Esseks, director of the American Civil Liberties Union LGBT & HIV Project] said. "Our government could not function if everyone doing the government's business got to pick their own rules.’”
Joan Biskupic, CNN

“Invalidating the marriages of who knows how many thousands of gay couples… would be a political nightmare. While Obergefell was controversial at the time, just five years later same-sex marriage is widely accepted (and society hasn’t disintegrated because of it, as some conservatives predicted)… Instead of overturning Roe and Obergefell, [the Court] will find other ways to chip away at abortion rights and LGBTQ rights, making it all but impossible to get an abortion in much of the country and creating a right for conservative Christians to discriminate against gay people.”
Paul Waldman, Washington Post

Regarding Fulton v. City of Philadelphia, “it’s important to understand that the city is not asking Catholic Social Services to endorse same-sex marriage. It is not asking the agency to place foster kids with Wiccans or druids or theater people. It is not asking the agency to do anything. Catholic Social Services is and will remain free to place whichever kids are entrusted to it into any home it deems qualified, according to whatever religious teachings it happens to care about that day. What the city will not do is contract the services of an agency that refuses to place children with LGBTQ families…

“It’s one thing for religious conservatives to claim that the Constitution gives them a personal right to bigotry… But it’s quite another thing when conservatives argue that the Constitution requires the state to endorse their bigotry. That is an argument a secular society does not have to accept in the name of religious freedom.”
Elie Mystal, The Nation

From the Right

The right supports Justice Thomas and argues that religious freedoms should be protected.

The right supports Justice Thomas and argues that religious freedoms should be protected.

That the gay marriage decision is actually in any danger is doubtful. In June, two of the conservative justices joined with their liberal colleagues to deliver a landmark LGBT rights decision, and Monday's opinion calls nowhere for the 2015 ruling to be overturned. Still, it fixed attention on what Thomas called Obergefell‘s ‘ruinous consequences for religious liberty… Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws,’ the opinion reads.”
Kevin Daley, Washington Free Beacon

“As I have been since before Obergefell, I remain in favor of gay marriage. But this is by no means the same thing as believing that there is a right to it in the Constitution… Obergefell will not be overturned, and… neither Thomas nor Alito suggests that it will be. But they are correct to worry that, as it is written, it will be used to limit the rights that are actually in the Constitution, and they are right to note that this is precisely why all questions that do not have a footing in the document are better resolved by legislatures.”
Charles C. W. Cooke, National Review

“Thomas argued that if Congress had passed a same-sex marriage law — rather than the Supreme Court declaring same-sex marriage legal by judicial fiat — the law may have included vital protections for religious freedom. Even if it had not included such protections, the First Amendment may have required them. Yet the way the Supreme Court created a right to same-sex marriage uniquely threatens traditional religious believers

Obergefell made it extremely difficult to balance same-sex marriage with religious freedom. Ideally, Congress should propose a solution, but failing that, the Supreme Court should vindicate free speech and religious freedom. When Thomas wrote that Obergefell needs to be ‘fixed,’ he didn’t mean that same-sex marriage should be outlawed by judicial fiat in the same way that it was legalized by judicial fiat. That would just make the situation worse. Instead, he meant that the Supreme Court — or, more ideally, Congress — should fix the excesses of Obergefell to vindicate religious freedom and prevent Obergefell from propping up anti-religious bigotry.”
Tyler O’Neil, PJ Media

Dated But Relevant: Regarding Fulton v. City of Philadelphia, “The [city] is refusing to work with Catholic Social Services to find homes for children in foster care because of the organization’s religious beliefs about marriage. The City won’t allow any more foster children to be placed with families who work with Catholic Social Services, even though that means that foster homes are sitting empty while there is an acute need for more families… It shouldn’t be about politics, it should be about helping kids…

“Philadelphia is the one discriminating here — it is refusing to work with foster families simply because they chose to associate with a Catholic foster agency. Philadelphia has many diverse foster agencies. Families should be able to find the agency that’s right for them, and religious charities should be able to live out their faith… It is important to know that these religious agencies never stop a single child from getting adopted. If a couple wants to adopt or foster and these agencies can’t assist them, for a variety of reasons, they refer them to someone who can.”
Lori Windham, National Review

A libertarian's take

“The fact that no one but Alito signed onto Thomas' statement should be seen as evidence that there isn't much interest in overturning Obergefell. And the Bostock ruling is an even stronger indicator. Given that Bostock says it violates the Civil Rights Act to discriminate against an individual for being gay or transgender, it's hard to imagine how the Court could then restore a ban on same-sex marriage recognition. Not unless it overturned both precedents…

“Many observers insist that Barrett is going to roll back LGBT rights… Similar objections were raised about Gorsuch back in 2017: People saw his support of Hobby Lobby in the fight over whether the company could be forced to fund birth control, and they somehow concluded from this that he was hostile toward LGBT issues. He went on, of course, to author the 6–3 Bostock decision in June. Barrett might end up surprising people too. And if not, three justices is still pretty far from a majority.”
Scott Shackford, Reason

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