LGBTQ+ Organizations Brace for SCOTUS Setbacks
By: Nicole Froio
Tags: Supreme Court, Equality, LGBTQ, Justice, Politics

LGBTQ+ Organizations Brace for SCOTUS Setbacks

Photo: SAUL LOEB/AFP/Getty Images

The Supreme Court confirmation of Amy Coney Barrett has put a number of LGBTQ organizations and advocates on high alert. According to a report by the Human Rights Campaign, the biggest LGBTQ organization in the United States, Judge Barrett’s record on LGBTQ issues indicates that her confirmation poses “a direct threat to the constitutional rights of LGBTQ community and all Americans.” And upcoming court rulings covering religious rights to discriminate against LGBTQ+ could mean that the overturning of civil rights could begin as early as next week.

C.P. Hoffman, legal director of FreeState Justice, a nonprofit organization in Baltimore, Maryland, that provides free legal aid to low-income LGBTQ populations, told ZORA that Barrett’s confirmation could leave the door open for rolling back anti-discrimination laws and health care coverage under the Affordable Care Act and potentially striking down marriage equality.

The most immediate concern is the upcoming Fulton v. City of Philadelphia ruling, a case that will decide whether faith-based child welfare agencies can refuse to work with LGBTQ people, which will take place on November 4. “There’s a fear that a conservative court could find that people’s right to freedom of religion includes the ability to discriminate against individuals in the queer community,” Hoffman said. The ruling will decide whether religious liberty trumps protection from discrimination and could result in “broad religious exemptions to nondiscrimination law.”

“Queer folk are much more likely to be lower income or poor… so we need to be worried about this Obamacare suit, because it could restrict access to health care for many low- and medium-income LGBTQ folks.”

Barrett’s ties to the conservative legal group Alliance Defending Freedom, which has consistently argued for an expansive view on religious freedom, could be an indication that the judge sees the expansion of religious rights favorably. The Fulton ruling could have far-reaching implications, possibly overturning existing anti-discrimination Supreme Court decisions like Bostock v. Clayton, an anti-discrimination employment law for LGBTQ employees.

Hoffman also warned that a ruling about the constitutionality of the Affordable Care Act, starting on November 10, could also impact the LGBTQ community. “Queer folk are much more likely to be lower income or poor… so we need to be worried about this Obamacare suit, because it could restrict access to health care for many low- and medium-income LGBTQ folks, when health care is so pivotal to many of us — especially to those of us in the trans community, who need access to trans-affirming care,” they explained.

Another concern, though Hoffman said the risk is significantly lower than other possible rollbacks, is the overturning of marriage equality. In the beginning of the month, Justices Thomas and Alito criticized the landmark Obergefell ruling that protects the right to marriage equality, claiming it restricts religious liberty. However, Hoffman said there are procedural barriers to bringing Obergefell back into the highest court in the land: “If they really wanted to, it could happen, but I see it as a lower risk than something like broad religious exemptions to nondiscrimination law.”

Elle Hearns, founder and executive director of the Marsha P. Johnson Institute in New York, an organization that cares for Black trans people and honors the memory of civil rights leader Marsha P. Johnson, also said the most pressing concern is conservative interpretations of anti-discrimination employment laws, calling for unity between the populations who will be affected. “Everything is always at stake for marginalized people in this country, especially those who are Black and trans,” she told ZORA. “Marginalized people’s rights and women’s rights are at stake. It is not just about the LGBT community. We all need to recognize that, because when we silo off, we fail to realize [Justice Barrett] is not supportive of any of our rights nor our identities.”

When asked how allies can help the LGBTQ+ population, Hearns said her community needs much more than allyship. “There needs to be much more sacrifice and much more work to highlight people’s humanity, human rights, decency, and children’s rights,” she said. “We need to start asking different questions — people are becoming political prisoners for standing up for their rights. Join grassroots organizations, donate to grassroots organizations. We need to fund and support the people who will be impacted by SCOTUS and the ability to live full and great lives.”

Hoffman feels similarly, urging supporters of the LGBTQ+ community to think outside the box and not accept the rules of engagement established by the Republican Party. “We should not feel bound by the norms of the 1950s when the other party does not feel bound to them,” they said. “Where laws have ground us down, we don’t necessarily have to respect them.”