THEOCRACY NOW!
By: John Ward
Tags: Supreme Court

After law school comes the bar exam. In between is a period of torture, paid for by the victims and innocuously called the Bar Review Course. There is a cottage industry composed of lawyers who teach such courses, which involve a degree of tedium that must be experienced to be appreciated. But there are occasional pearls. I still remember how my instructor, all those years ago, explained the First Amendment. “It’s simple,” he assured us, “the Jehovah’s Witnesses always win and Nixon always loses.”

There’s a grain of truth in the instructor’s clever meme. Nevertheless, the meaning and application of “the First” has become anything but simple.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Whatever else these words written in the late 18th Century state or imply, they clearly deal with religion and politics, two subjects that are studiously avoided at dinner tables around the country, or will be when we can all gather safely. There is a reason, of course, for this rule of silence. These hot-button topics can cause crockery to fly, if not worse, and trigger resentments that can fester seemingly forever. At the same time, spoken about or not, religion and politics are indispensable ingredients of the recipe that society uses to construct — or to divide — itself.

When I started practicing law in the 70’s, there was no doubt in my mind that the First Amendment was a friend to queer folk. It got us visibility and entrée to places where we were not welcome. Here in New England, a federal court of appeals ordered the University of New Hampshire to allow a group of gay men and lesbians to hold a dance on campus. The court deemed dancing by same-sex partners a form of protected expressive activity. Around the same time, a federal court held that the state sponsors of the Rhode Island bicentennial celebration had to allow a group called “Toward a Gayer Bicentennial Committee” to have an information booth at the official celebration, which was deemed to be a public forum.

The gains of the 70’s and beyond were built on the work of earlier visionaries, who used the First Amendment to open the door a chink for the love that, for most of us, really and truly did not dare to speak its name. During the 50’s, a dark time indeed for LGBTQ folk, a pioneering advocacy group called One, Inc., an offshoot of the Mattachine Society, began publishing a magazine called ONE. Around the same time as a Lesbian group, the Daughters of Bilitis, started a periodical called The Ladder. In response to political pressure and prodding by J. Edgar Hoover, the Post Office refused to mail ONE magazine because it was deemed “obscene.”

One, Inc. went to court. They were represented without charge by Eric Julber, a young lawyer recently graduated from UCLA Law School. “I told them, ‘I never had anything to do with gay people, know nothing about that way of life. . . . But I do know about one thing — civil liberties and the right to be free from censorship.’” Mr. Julber struck out in the federal district court and the federal court of appeals, which sneered at his arguments. “The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected,” huffed the federal district judge who heard the case. “Social standards are fixed by and for the great majority and not by or for a hardened or weakened minority,” puffed the Ninth Circuit Court of Appeals in San Francisco.

Mr. Julber persisted. He filed a petition for certiorari in the Supreme Court. And, lo and behold, One, Incorporated, v. Olesen, 355 U.S. 371, reversing 241 F.2d 772: “PER CURIAM. The petition for writ of certiorari is granted and the judgment of the United States Court of Appeals for the Ninth Circuit is reversed. Roth v. United States, 354 U.S. 476.”

Translating these words into understandable English, the Supreme Court’s reversal of the court below was based on the Roth case. In Roth, Justice Brennan ruled that, for a publication to be deemed obscene, the government must show that “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Thus understood, the Supreme Court’s cryptic order in One, Inc. represented a finding that this early attempt by queers to communicate with each other through journalism was protected by the First Amendment.

What has been built on these earlier victories is undeniably impressive. The world that many, many LGBTQ people living in some parts of the United States inhabit is much easier and freer than the world in which I grew to adulthood. This is certainly true, if they, like me, have some cultural capital and professional status. My husband and I live in an economically, racially and ethnically diverse neighborhood in southwest Boston, and I worry more about being hit by a car than about being fag-bashed or even fag-baited. I generally feel safe and, yes, welcome, and I am grateful for this and do not take it for granted.

A chunk of what contributes to the sense that it is safe to be myself comes as the result of decisions of the Supreme Court, and specifically the support of the recently retired Justice Anthony Kennedy. This is same judge who also provided the crucial fifth vote in such shameful decisions as Bush v. Gore, which stopped the vote count in Florida in 2000 and gave us W. and the terrible carnage of the war against Iraq; Citizens United, which sullied an already corrupted politics by definitively handing the microphone to the rich; Shelby County, which gutted the Voting Rights Act of 1965; and Heller v. District of Columbia, which adopted the view that the Second Amendment protects the individual right to gun ownership, an idea that former Chief Justice Burger (whose right wing credentials are pretty impressive) described as a fraud on the American people.

Nevertheless, it was this same Kennedy who wrote a series of sensitive and perceptive opinions that made many queer lives better — nationwide decriminalization of same-sex sexual acts; a ban on laws specifically targeting persons on the basis of their sexual orientation, including the infamous Defense of Marriage Act signed by Clinton as part of his 1996 re-election strategy; and Obergefell, the case that established marriage equality throughout the United States.

But now Kennedy is gone, as is the unstoppable RBG, and some groups that identify themselves as religious are sensing that happy days — for them — are here again. Not that such times have ever been totally gone. When queers approached the sacred cows — the Boys Scouts, for example, or the Olympic Committee — what can be described as the “Gay exception” to the Bill of Rights came into play. There would be no Gay Olympics, thank you very much, and no openly gay scout leaders! Oh, and forget about having identifiable LGBT groups in the Saint Patrick’s Day Parade. We’ll have none of that! But, despite these painful setbacks, there has been remarkable progress.

And of course there has been backlash. The current storm center is a Supreme Court case called Fulton v. City of Philadelphia. Fulton deals with the fraught issue of who gets to be foster parents, and, by extension, who gets to adopt. It is no surprise that this is the chosen terrain. The idea that Heather could have two mommies or Derek two daddies is just over the top for lots of people, even if, as is often the case, nobody else wants to take care of the little tykes. And for lots of those who want to keep the kids away from same-gender parents, the reason is clothed in moralistic language.

We saw that first hand here in Massachusetts, when Governor Michael Dukakis, back in the 80’s, personally intervened to have two little boys who were being fostered by a gay male couple removed from the mens’ home. Dukakis had the support of the state legislature and the two major Boston newspapers, including the liberal Boston Globe. David Jean and Don Babets, the two foster parents, ultimately prevailed. They went on to adopt and raise the two little boys and, eventually, the boys’ brothers. In 1995, ten years after the kids were snatched from their home, the Massachusetts legislature, which had vigorously opposed them, presented the adoptive parents a commendation, congratulating them for adopting the kids.

Flash forward 25 years to the Philadelphia case. The matter came to court when the city dropped its contract with a religiously affiliated social services agency because the agency a priori refused to consider same-sex couples as potential foster parents on the grounds that accepting same-sex parents is offensive to the church-sponsored agency’s religious doctrine. The agency’s religious-based policy is directly contrary to the city’s law forbidding discrimination on the basis of sexual orientation. Nevertheless, the agency contends that the city’s refusal to contract with them violates the Free Exercise Clause of the First Amendment.

It’s pretty clear that the agency has at least five votes in the Supreme Court and will prevail. Justice Samuel Alito made his views known from the bench. “[I]f we are honest about what’s really going on here,” the case is “not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents.” It is rather, that the city “can’t stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.” Justice Brett Kavanaugh (remember him?) took the view that the city’s insistence on even-handed treatment of same-sex couples was an “absolutist and extreme position.” Add Clarence Thomas and Amy Coney Barrett to the mix, and the outcome of the case does not appear to be in doubt.

Were it not for the fairly obvious reality that matters touching on religion and gender roles are uniquely capable of making people crazy, there is no sound reason why the religiously-affiliated agency should prevail in this case, and some good reasons why it should not.

For one thing, allowing the agency to maintain its policy of discrimination against same-sex couples and still obtain contract money from the city is easily seen as requiring taxpayer money to be paid to the agency to support its religious views about marriage and proper child-rearing, in violation of the Establishment Clause of the First Amendment, as Dean Choper of the University of California Law School has argued in similar cases.

In addition, religious groups that enter into activities outside their faith communities that cause harm to non-adherents to the groups’ religious views, such as same-sex couples who wish to foster or adopt children, should not be able to complain that their voluntary engagement in the “secular” world comes with a duty to comply with laws of general application. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” United States v. Lee, 455 U.S. 252, 261.

The religiously-based foster care agency in the Philadelphia case contends that requiring it to process applications from same-sex couples the same way it does any other application forces the agency to convey the impression that it approves allowing these couples to provide care for children. (Horrors!) But that claim is easily seen as threadbare. My religious beliefs do not exempt me from paying taxes to support Attorney General William Barr’s unspeakable rush to execute black men on his way out the door. Obviously, the taxes that I pay under compulsion in no way signal approval of the serial killings Barr has organized. The Supreme Court had no trouble recognizing this in Rumsfeld v. FAIR, 547 U.S. 47. “We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy.”

If there were any doubt that the “Gay exception” is at work in the Philadelphia case, it should be put to rest if one considers the reality that courts, even the Supreme Court as currently constituted, will impose some limit to the extent that religious beliefs can be used to justify exemption from anti-discrimination laws. It cannot be seriously argued that an adoption agency that refused to consider an adoption or foster care application because of the race of one or both members of the applicant couple could successfully justify this discrimination on the basis of religious belief. That point was pretty well settled nearly 40 years ago in Bob Jones University v. United States, 461 U.S. 574. “[A] private school — even one that discriminates — fulfills an important educational function; however, . . . [that] legitimate educational function cannot be isolated from discriminatory practices . . . . [Discriminatory] treatment exerts a pervasive influence on the entire educational process.”

No doubt, the immediate retort will be that racial discrimination is different from other types of invidious discrimination. After all, “race, color, or previous condition of servitude” are specifically singled out for condemnation in the Fifteenth Amendment. I completely agree that systemic racism, along with the genocide of first nation peoples, are the foundational wrongs of our nation. What I fail to see is why that reality has any bearing on why demonstrable harms caused by other forms of wrongful discrimination should be given a pass simply because they are presented as religious values, unless, as Justice White once suggested, this judgment reflects an underlying “view that those in the burdened class are not as worthy or deserving as others.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440.

On the contrary, the correct principle seems to be that the courts should step in to defend fundamental rights whenever the political process marginalizes or shuts out some group — whether it be LGBTQ people or people of faith. Justice Stone said as much in 1938 in a footnote that has been called the most important footnote in U.S. constitutional history. United States v. Carolene Products, 304 U.S. 144, 152, fn. 4. Constitutional protection is not, or should not be, a zero sum game. When courts, as the current Supreme Court majority is set to do, overvalorize claims that come bearing the label religious and disregard or downplay the harm that such claims cause to less favored groups or individuals, they undermine the integrity of the judging process by prioritizing the judge’s own values — usually unspoken — without being particularly honest about it.

It seems to me ironic that LGBTQ persons who seek to live their lives openly and in fidelity to their deepest values, like people of faith who are trying to do the same thing, are are adversaries rather than allies. Queer folk are often treated with disrespect or outright contempt in our culture. So are people of faith who rock the boat. Would that this commonality could build a bridge between the two groups instead of digging a moat. I wonder what it will take for this to happen. Hopeless tilter after windmills, I believe that it can.