November 28, 2018 at 2:53 pm EST | by Chris Johnson
Anti-LGBT petitions before Supreme Court could make for dire term
Kirby v. North Carolina State University, Supreme Court, gay news, Washington Blade

A number of anti-LGBT petitions are pending before the U.S. Supreme Court. (Washington Blade file photo by Michael Key)

A number of anti-LGBT petitions are before the U.S. Supreme Court, although legal experts say adjudication of these cases — if justices agree to take them up — may not be as bad as some observers fear.

With one exception, each of the petitions before the court calls for a rollback of LGBT rights or a reversal of decisions from lower courts affirming LGBT rights within those jurisdictions.

James Esseks, director of the LGBT project for the American Civil Liberties Union, said the petitions before the court “set up a potentially very consequential term for LGBT people nationwide,” but they may not necessarily lead to harmful decisions.

“The petitions are here, by and large, because we have been winning in lower courts, right?” Esseks said. “The lower court, including some conservative lower courts have ruled for LGBT equality in a bunch of different contexts.”

The most recently filed LGBT petitions are requests from the U.S. Justice Department calling for a fast-track decision on President Trump’s transgender military ban, insisting justices take up the issue to ensure resolution before their current term ends. Although Trump tweeted in July 2017 he’d ban transgender people from serving in the military “in any capacity,” four courts have issued preliminary injunctions enjoining enforcement of Trump’s ban.

It would be a rare move for the Supreme Court to adjudicate at this time. The U.S. Ninth Circuit Court of Appeals and the D.C. Circuit Court of Appeals haven’t yet issued their decision on whether the ban should remain in place in the aftermath of Defense Secretary James Mattis’s recommendations affirming Trump’s policy.

Esseks said the Supreme Court takes up cases at this stage “once a decade” and “there’s no reason” for justices to take up the cases before federal appeals courts render their decisions at the behest of the Trump administration.

“One of the reasons they want the Supreme Court to take the case is they don’t want to produce information in the trial courts,” Esseks said. “They don’t want to go through that discovery process and explain how and why they got to their decisions. They’re trying to short-circuit the normal process that would allow for full understanding about what was behind this.”

Three other petitions before the court are asking for clarification on whether Title VII of the Civil Rights Act of 1964, which bars employment discrimination on the basis of sex, also applies to cases of discrimination against LGBT people in the workforce.

As of earlier this week, those petitions were set for consideration in conference scheduled for Friday, but the Supreme Court’s website now indicates those petitions were removed Monday from the docket and will be considered at a later time.

One of the petitions was filed by the anti-LGBT legal group Alliance Defending Freedom on behalf of Harris Funeral Homes in Michigan, which terminated the employment of transgender funeral director Aimee Stephens after she told the employer she’d transition on the job.

After the U.S. Sixth Circuit Court of Appeals ruled in Stephens’s favor, Alliance Defending Freedom filed the petition before the Supreme Court, asking justices to clarify whether Title VII bars workplace discrimination based on gender identity.

Two other petitions seek clarification on whether Title VII bars discrimination on the basis of sexual orientation. One was filed by Altitude Express, which fired now deceased gay skydiver Donald Zarda allegedly because he was gay. The U.S. Second Circuit Court Appeals ruled the termination could be found unlawful under Title VII.

The other petition — the only one before the Supreme Court seeking to advance LGBT rights — was filed in the case of Bostock v. Clayton County and seeks reversal of recently established precedent in the Eleventh Circuit that anti-gay discrimination isn’t covered under Title VII. The petition — which risks a Supreme Court ruling affirming anti-gay discrimination is legal — was filed by private attorneys, not LGBT legal groups.

Even if the Supreme Court were to take up cases on LGBT workplace rights, Esseks expressed optimism the Supreme Court would ultimately rule in favor of non-discrimination, pointing to polls showing widespread opposition to anti-LGBT discrimination (and in some cases, belief it’s already unlawful).

“These are also cases that are not only in synch with a bunch of lower courts, but completely in synch with the American public,” Esseks said. “Supermajorities of the American public think that it’s wrong and unlawful to fire people because they are LGBT. For the Supreme Court to take those protections away would be really quite a radical act, and so, that all gives me hope about how some of these cases could all come out.”

Jocelyn Samuels, executive director of the Williams Institute for the University of California, Los Angeles, said the Supreme Court has already ruled for an expanded view of laws against sex discrimination and the “increasing consensus” of lower courts is sex discrimination covers discrimination based on sexual orientation and gender identity.

“I think analytically, and from a core understanding of the conduct intended to prohibit, the cases that find sexual orientation and gender discrimination are prohibited under current law rest on extremely strong grounds, so I would hope that the Supreme Court would understand the power of those arguments and the importance of respecting its own precedent,” Samuels said.

Another filing from Alliance Defending Freedom calls on the Supreme Court to undo a Pennsylvania school district’s policy allowing transgender kids to use the restroom consistent with their gender identity and seeks a reversal of a Third Circuit decision that it is unlawful under Title IX of the Education Amendment of 1972.

Although the consensus among the courts is that the law prohibits discrimination against transgender students, Alliance Defending Freedom draws on that statute to argue students shouldn’t be forced to share facilities with transgender students.

Another petition is a follow-up to the Supreme Court’s ruling in the Masterpiece Cakeshop case in favor of Jack Phillips, a Colorado baker who refused to sell a custom-made wedding cake to a same-sex couple out of religious objections. That ruling, which was based on the facts of the case, fell short of Phillips’s call for the Supreme Court to find a First Amendment right for him to refuse service to same-sex couples for religious reasons.

The new petition before the Supreme Court was filed by Texas-based law firm First Liberty on behalf of Aaron and Melissa Kline of Sweetcakes in Gresham, Ore., who were fined $135,000 after refusing to make a wedding cake for a lesbian couple.

The petition seeks a First Amendment right to refuse service to LGBT people. Additionally, the petition calls for the court to revisit precedent in the case of Employment Division v. Smith, which found states may accommodate acts that would otherwise be unlawful if they’re performed in pursuit of religious beliefs, but aren’t required to do so.

Another religious freedom petition was filed by Aloha Bed & Breakfast in Hawaii, which was penalized under state law for refusing to provide accommodations for a lesbian couple. The Hawaii Supreme Court refused to take up the case, which opened the door for the bed and breakfast to file a petition with the U.S. Supreme Court.

Yet another petition could come in the case of Fulton v. Philadelphia, which is based on the City of Philadelphia terminating its contract for foster care with Catholic Social Services after discovering the agency denies placement in LGBT homes. The agency is seeking a First Amendment right to maintain its contract despite terms in that agreement not to discriminate against LGBT people.

A ruling from the Third Circuit on a trial court’s denial of a preliminary injunction for Catholic Social Services is expected soon. That could lead the Becket Fund, which is representing the agency, to file a petition for review before the Supreme Court.

The Becket Fund has already filed a preliminary request for relief from the Supreme Court, but the court in August refused to intervene at this stage in the legal process. Notably, U.S. Associate Justices Neil Gorsuch, Samuel Alito and Clarence Thomas indicated in the order from the court they would have granted the relief.

Samuels said the court for religious freedom petitions may defer to its earlier resolution in the Masterpiece Cakeshop case and decline to issue sweeping decisions.

“I think in the Masterpiece Cakeshop decision, Justice Kennedy made very clear that the dignity of LGBT people is at stake and that is a critical interest for the government and one well worth protecting,” Samuels said. “Given the fact that decision was reached less than a year ago and that it reflects a uniformity of Supreme Court views because the dissenters would have done further to deny the religious liberty interests that were presented in that case, I would hope that that would suggest that that recognition of the core importance of LGBT equality and rights would continue to prevail even given the changing composition of the court.”

It remains to be seen whether the Supreme Court will review any of these lawsuits. It takes a vote of at least four justices to grant a writ of certiorari, or agree to take up a case.

Whether the Supreme Court takes up these cases could depend on the views of recently confirmed U.S. Associate Justice Brett Kavanaugh, whom President Trump selected from a list of picks coordinated by the Federalist Society and the anti-LGBT Heritage Foundation and whose confirmation LGBT rights groups vehemently opposed.

As a judge for the U.S. Circuit Court for the D.C. Circuit, Kavanaugh had a scant record on LGBT rights prior to his confirmation to the Supreme Court. During his confirmation hearing under questioning from Sen. Kamala Harris (D-Calif.), he read a statement from the Masterpiece Cakeshop rejecting discrimination against gay people, but wouldn’t say whether he agrees with that statement.

Jon Davidson, chief counsel for Freedom for All Americans, said whether the Supreme Court will take up the petitions remains uncertain and “the results are far from preordained,” citing Kavanaugh as well as U.S. Chief Justice John Roberts.

“Because Justice Kavanaugh has never ruled on an LGBTQ rights case and has made very few public statements on LGBTQ issues, we do not actually know what his views are,” Davidson said. “He also may be disinclined to lead in very different directions than Justice [Anthony] Kennedy, who was his mentor, for whom he clerked, who swore him in, and whose seat he is filling. It also is possible that Chief Justice Roberts, who is very concerned about the court’s reputation, will be disinclined to have the court turn in directions dramatically inconsistent with national public opinion.”

CORRECTION: An earlier version of this article had the wrong title for Jon Davidson and incorrectly stated the Aloha Bed & Breakfast petition wasn’t yet filed. The Blade regrets the errors.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

© Copyright Brown, Naff, Pitts Omnimedia, Inc. 2018. All rights reserved.