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Fulton v. City of Philadelphia & the Future of LGBT Rights at the Supreme Court

The case of Fulton v. City of Philadelphia will be decided by the US Supreme Court in the next few weeks and it may have a substantial impact on the future trajectory of LGBT rights in America.

The facts of the case are fairly straight forward. Citing a regulation that bars discrimination based on sexual orientation, Philadelphia dropped a contract with a Catholic agency that would not authorize foster care by same-sex couples because of the Church's views on homosexuality. The agency, Catholic Social Services, then brought a lawsuit alleging that Philadelphia violated its rights to the "Free Exercise" of religion under the First Amendment.

Depending on how broadly the Justices choose to rule, the case could decide if they believe that the Constitution permits discrimination against the LGBT community based on sincerely-held religious belief. If the discrimination was based on race, the outcome would be clear, but the Court hasn't established the same protections for same-sex couples. So, the crucial question in the case is whether same-sex couples deserve the same protection against discrimination as racial minorities, or whether religious organizations are exempt from regulations protecting the LGBT community because of their rights under the Free Exercise clause.

The Court could also decide the case on narrower, more technical grounds concerning how Philadelphia handled the matter or applied the policy, but with six conservatives on the court and a newly energized Clarence Thomas, many fear that the Court will use the case to expand religious freedom at the expense of LGBT rights.

CNBC: “The worst case scenario is that the court upends decades of Supreme Court precedent that says, while religious freedom is an important constitutional principle, it can’t trump the equally important principle of nondiscrimination,” said Janson Wu, the executive director of GLAD, an organization that defends LGBT legal rights."

Lower federal courts decided Fulton v. City of Philadelphia based on precedent established in the case of Employment Division v Smith in 1990.

Time: "The landmark 1990 court ruling on Employment Division v. Smith—written by conservative Justice Antonin Scalia—said Americans cannot have exemptions to laws on religious grounds as long as those laws are neutral and generally applicable to everybody. Anti-discrimination laws have long been thought of as meeting that standard, says NeJamie. But the Fulton plaintiffs are ... asking the court to re-examine Smith. Such a reconsideration would send shockwaves through the religious and civil rights communities."

Based on the current make-up of the Court and questions during oral argument, almost no one believes Philadelphia will prevail, but if Chief Justice John Roberts had his way, the Court would find a way to rule for Catholic Social Services without overturning Smith or broadly encouraging discrimination. However, it's not at all clear that he speaks for the majority anymore. Roberts would like to lead a conservative majority that doesn't appear overly ideological, overly partisan, but that's unlikely. This is not an age for political or legal nuance.

#law #news

By: Don Lam & Curated Content

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