While LGBTQ people nervously await the U.S. Supreme Court’s decisions regarding two major employment-discrimination cases, the Court also heard arguments this month in other cases that could have a significant impact.
On May 5, the Trump administration argued for the right to block federal funds to foreign HIV/AIDS organizations unless the groups issue statements condemning sex trafficking and sex work. The next day, the administration defended its efforts to change Affordable Care Act (ACA) rules in a way that would allow employers to deny certain types of coverage by claiming religious freedom.
Multiple district courts issued nationwide injunctions against the administration’s proposed rules. And in two cases—Trump v. Pennsylvania and Little Sisters v. Pennsylvania—the U.S. Court of Appeals for the Third Circuit continued to block the rules from taking effect.
While the new regulations were aimed primarily at contraception for women, the implications for LGBTQ people and everyone living with HIV are also dire, according to Lambda Legal’s Jenny Pizer. “Freedom of religion has never meant allowing religious objectors to deny the rights or freedoms of others, but that is precisely what the Court is being asked to do,” she said.
During the May 5 oral arguments, Chief Justice John Roberts and Justice Elena Kagan challenged Solicitor General Noel Francisco to defend the administration’s new rule against claims that it is “too broad.” Justice Ruth Bader Ginsburg stated emphatically that the rule tries to “toss to the winds entirely” Congress’ intent to ensure women had adequate health coverage, and that the Trump administration was “shifting employers’ religious beliefs onto employees who do not share those religious beliefs.”
Francisco disagreed, and said that the ACA does not require contraception to be a covered medical service and that the administration has the “discretion” to decide that matter.
While the focus of the May 6 cases was contraception, Lambda Legal and other LGBTQ legal groups worry the Trump rule sets the stage for allowing employers to claim religious objections to providing other medical services important to LGBTQ people, like reproductive services, gender-transition care, and family benefits for same-sex spouses.
Lambda Legal and the Human Rights Campaign submitted briefs to the Supreme Court, arguing against the Trump administration’s rule change, as did the ACLU and seven out of nine openly LGBTQ members of Congress. Senator Kyrsten Sinema and Representative Sharice Davids did not sign the brief.
The National Center for Lesbian Rights, the National Black Justice Coalition, and GLBTQ Legal Advocates & Defenders joined a brief opposing the Trump adminstration’s rule, and openly lesbian Attorney General Maura Healey of Massachusetts led a brief joined by 19 other states, including California, Colorado, Illinois, and Michigan. Attorneys for many cities, including Chicago, Houston, New York, Oakland, and San Francisco also filed briefs against the rule.
On May 5, the Supreme Court heard arguments in a case to determine whether the federal government could withhold funds from a U.S. group fighting HIV and AIDS overseas until the group certified that its foreign partners denounced sex work and sex trafficking. The case, USAID v. Alliance for Open Society, revolves around a 2003 law that provides billions of dollars for combating HIV/AIDS, but only to groups that “explicitly oppose prostitution and sex trafficking.” HIV organizations opposed the law, and in 2013 the Supreme Court said the requirement—as applied to groups based in the U.S.—violated the First Amendment. But the appeal this second time around addresses whether the requirement can be pressed against foreign groups who get U.S. funding as affiliates of the U.S. groups.
During that argument, Justice Sonia Sotomayor noted that in 1995 the Supreme Court ruled in Hurley v. Irish-American that the Boston St. Patrick’s Day parade organizers had a First Amendment right to choose whom to affiliate with.
In a response that could come back to haunt the solicitor general’s office in religious-freedom cases, Assistant to the Solicitor Christopher Michel said, “No one is forcing the domestic entity to affiliate with a foreign entity.
“The domestic entity has a choice to take the money and use it itself, and any hypocrisy or disturbance to its message that results is a result of its own choice to affiliate with a group.”
The Supreme Court announced in February that it would review a lower-court decision that held a city that provides taxpayer funding to a Catholic foster-care agency could require the agency to comply with the city’s ordinance prohibiting discrimination against same-sex couples. LGBTQ activists have argued that the Catholic agency does not have to take city funding to administer the program, so the city’s withdrawal of its funding does not violate the Catholic agency’s religious beliefs. The court will hear the case, Fulton v. Philadelphia, during the next session.
Meanwhile, LGBTQ activists will be watching the Supreme Court carefully between now and the end of June to see how it rules in cases testing whether the existing federal Civil Rights Act prohibits job discrimination based on sexual orientation and gender identity and expression. The court will release a single opinion concerning the two sexual-orientation cases Bostock v. Clayton County and Altitude Express v. Zarda. The gender identity and expression decision will come in Harris Funeral Homes v. EEOC.
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