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Catholic agency seeks right to anti-LGBT discrimination from Supreme Court

Becket Fund filed behalf on behalf of Philadelphia agency .

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A new Supreme Court petition seeks a First Amendment right for Catholic agencies to discriminate against LGBT people. (Washington Blade file photo by Michael Key)

A new petition filed before the U.S. Supreme Court on behalf of a Catholic adoption agency seeking to refuse placement into LGBT homes calls for a ruling that could enable anti-LGBT discrimination in the name of “religious freedom” — even if justices affirm in separate pending litigation LGBT protections are included under federal civil rights law.

The petition was filed Monday by the Becket Fund for Religious Liberty — an organization that takes up religious freedom lawsuits, such as the Hobby Lobby and Little Sisters of the Poor cases  — and seeks to establish a First Amendment right for Catholic Foster Services in Philadelphia to refuse to place children into LGBT families.

“Here and in cities across the country, religious foster and adoption agencies have repeatedly been forced to close their doors, and many more are under threat,” the petition says. “These questions are unavoidable, they raise issues of great consequence for children and families nationwide, and the problem will only continue to grow until these questions are resolved by this court.”

The petition presents three questions:

1. Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?

2. Whether Employment Division v. Smith should be revisited?

3. Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?

The case came about after the City of Philadelphia learned in March 2018 Catholic Social Services, which the city had hired to provide foster care services to children in the child welfare, were refusing to license same-sex couples despite a contract prohibiting these agencies from engaging in anti-LGBT discrimination.

When the city said it would terminate the contract, Catholic Social Services sued on the basis it can maintain the contract and refuse placement into LGBT homes for religious reasons under the guarantee of free exercise of religion under the First Amendment.

A federal judge in Pennsylvania and the U.S. Third Circuit Court of Appeals denied a preliminary injunction in favor of Catholic Adoption Agencies. The Third Circuit, which declined to revisit the case “en banc” before the full court, based its decision in part on the 1990 ruling in Employment Division v. Smith, which says states are aren’t required to accommodate otherwise illegal acts in the name of religious liberty under the First Amendment.

A key component of the Becket Fund petition is reconsideration of the Smith decision. Although the petition insists Smith doesn’t support the Third Circuit decision, it says “the propensity of lower courts to read Smith so narrowly is powerful evidence that Smith has confused rather than clarified the law and should be reconsidered.”

Catholic Social Services also seeks a religious right to refuse placement into LGBT homes in a broader sense under the First Amendment — which could affect not just city contracts, but federal non-discrimination law against anti-LGBT discrimination — asserting the current situation “effectively denies CSS a license if it does not speak and act as the government prefers.

A ruling from the Supreme Court on the free exercise claim presented in third question could give justices wriggle room in separate litigation to determine anti-LGBT discrimination is a form of sex discrimination under federal law. Those cases — Bostock v. Clayton County, Zarda v. Altitude Express and EEOC v. Harris Funeral Homes — call on the Supreme Court to clarify whether Title VII of the Civil Rights Act of 1964, which bars employment discrimination on the basis of sex — also applies to cases of anti-LGBT discrimination.

A ruling from the Supreme Court in favor of the idea Title VII covers LGBT people would make Catholic institutions liable if they deem it necessary to fire a worker for being gay, much like Catholic schools have fired gay teachers for entering into same-sex marriages.

Conceivably, if this ruling gives pause to justices like U.S. Chief Justice John Roberts and U.S. Associate Justice Brett Kavanaugh — who are Catholic, but could be swing justice on the Title VII — they could find Title VII applies to cases of anti-LGBT discrimination, but also give Catholic institution an out from the decision in the Fulton case by finding they have a First Amendment right to discriminate.

Meanwhile, the Becket Fund is drawing the 2015 Obergefell decision in favor of same-sex marriage nationwide as evidence of the need for the court to take up the Fulton case.

“Just as no LGBT couples are prevented from marrying because a particular church does not perform same-sex weddings, no LGBT couples are prevented from fostering because a particular church cannot provide an endorsement,” the petition says. “Yet many churches will be prevented from exercising religion by caring for at-risk children, all due to a disagreement with the government about marriage. That is not the live-and-let-live world Obergefell promised.”

The Fulton case has reached the Supreme Court before. Last year, Catholic Social Services sought injunctive relief from the Supreme Court — even before the case had been fully briefed in lower courts — to refuse placement into LGBT homes as its litigation against the City of Philadelphia moved forward. The Supreme Court rebuffed this request, although U.S. Associate Justices Samuel Alito, Clarence Thomas and Neil Gorsuch signaled they would have granted the injunctive relief.

Faced with the prospect of having to place children into LGBT homes — which studies are shown are just as capable of raising children as non-LGBT homes — Catholic Social Services threatens to close down services if it doesn’t get its way.

“Here, if CSS declines the contract, it will be completely excluded from Philadelphia’s foster care system,” the petition says. “It might serve families in other ways, like its residential programs or temporary care for unaccompanied minors, but it cannot support Philadelphia children through the difficult process of entering foster care, finding families who can care for them for weeks to years, and supporting those families as they care for children through the uncertainties of family reunification or adoption.”

The American Civil Liberties Union has intervened in the case and is representing the Support Center for Child Advocates and Philadelphia Family Pride.

Leslie Cooper, deputy director of the ACLU LGBT & HIV project, said adoption agencies shouldn’t be able to obtain taxpayer funds and engage in anti-LGBT discrimination under a religious litmus test at the same time.

“Catholic Social Services wants to force every state and local government to allow exactly that,” Cooper said. “With more than 400,000 children in the foster care system across the country — a quarter of whom are waiting for a family to adopt them — no family willing and able to open their hearts and home to a child should be rejected. When agencies choose to accept taxpayer dollars to provide this critically important government service to children, the needs of children must come first.”

It remains to be seen whether the Supreme Court will take up the case, and if it does whether justices will a render a decision in this case in conjunction with the Title VII litigation. The Supreme Court is out of session for the summer, so this soonest justices could decide whether to take it up is during the long conference in September, which would mean decision in the case by June 2020.

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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards

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Puerto Rico Pulse nightclub victims, gay news, Washington Blade

 

A Puerto Rico Senate committee on Thursday killed a bill that would have banned so-called conversion therapy on the island.

Members of the Senate Community Initiatives, Mental Health and Addiction Committee voted against Senate Bill 184 by an 8-7 vote margin. Three senators abstained.

Amárilis Pagán Jiménez, a spokesperson for Comité Amplio para la Búsqueda de la Equidad, a coalition of Puerto Rican human rights groups, in a statement sharply criticized the senators who opposed the measure.

“If they publicly recognize that conversion therapies are abuse, if they even voted for a similar bill in the past, if the hearings clearly established that the bill was well-written and was supported by more than 78 professional and civil entities and that it did not interfere with freedom of religion or with the right of fathers and mothers to raise their children, voting against it is therefore one of two things: You are either a hopeless coward or you have the same homophobic and abusive mentality of the hate groups that oppose the bill,” said Pagán in a statement.

Thursday’s vote comes against the backdrop of continued anti-LGBTQ discrimination and violence in Puerto Rico.

Six of the 44 transgender and gender non-conforming people who were reported murdered in the U.S. in 2020 were from Puerto Rico.

A state of emergency over gender-based violence that Gov. Pedro Pierluisi declared earlier this year is LGBTQ-inclusive. Then-Gov. Ricardo Rosselló in 2019 signed an executive order that banned conversion therapy for minors in Puerto Rico.

“These therapies lack scientific basis,” he said. “They cause pain and unnecessary suffering.”

Rosselló issued the order less than two weeks after members of the New Progressive Party, a pro-statehood party  he chaired at the time, blocked a vote in the Puerto Rico House of Representatives on a bill that would have banned conversion therapy for minors in the U.S. commonwealth. Seven out of the 11 New Progressive Party members who are on the Senate Community Initiatives, Mental Health and Addiction Committee voted against SB 184.

“It’s appalling. It’s shameful that the senators didn’t have the strength and the courage that our LGBTQ youth have, and it’s to be brave and to defend our dignity and our humanity as people who live on this island,” said Pedro Julio Serrano, founder of Puerto Rico Para [email protected], a Puerto Rican LGBTQ rights group, in a video. “It’s disgraceful that the senators decided to vote down this measure that would prevent child abuse.”

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Undocumented LGBTQ immigrants turn to Fla. group for support

Survivors Pathway is based in Miami

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Survivors Pathway works with undocumented LGBTQ immigrants and other vulnerable groups in South Florida. (Photo courtesy of Francesco Duberli)

 

MIAMI – The CEO of an organization that provides support to undocumented LGBTQ immigrants says the Biden administration has given many of his clients a renewed sense of hope.

“People definitely feel much more relaxed,” Survivors Pathway CEO Francesco Duberli told the Washington Blade on March 5 during an interview at his Miami office. “There’s much hope. You can tell … the conversation’s shifted.”

Duberli — a gay man from Colombia who received asylum in the U.S. because of anti-gay persecution he suffered in his homeland — founded Survivors Pathway in 2011. The Miami-based organization currently has 23 employees.

Survivors Pathway CEO Francesco Duberli at his office in Miami on March 5, 2021. (Washington Blade photo by Yariel Valdés González)

Duberli said upwards of 50 percent of Survivors Pathway’s clients are undocumented. Duberli told the Blade that many of them are survivors of domestic violence, sexual assault and human trafficking and victims of hate crimes based on their sexual orientation and gender identity.

“Part of the work that we have done for years is for us to become the bridge between the communities and law enforcement or the justice system in the United States,” said Duberli. “We have focused on creating a language that helps us to create this communication between the undocumented immigrant community and law enforcement, the state attorney’s office and the court.”

“The fear is not only about immigration,” he added. “There are many other factors that immigrants bring with them that became barriers in terms of wanting to or trying to access the justice system in the United States.”

Duberli spoke with the Blade roughly a week after the Biden administration began to allow into the U.S. asylum seekers who had been forced to pursue their cases in Mexico under the previous White House’s “Remain in Mexico” policy.

The administration this week began to reunite migrant children who the Trump administration separated from their parents. Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the coronavirus pandemic, remains in place.

Duberli told the Blade that Survivors Pathway advised some of their clients not to apply for asylum or seek visa renewals until after the election. Duberli conceded “the truth of the matter is that the laws haven’t changed that much” since Biden became president.

Survivors Pathway has worked with LGBTQ people in U.S. Immigration and Customs Enforcement custody in South Florida. American Civil Liberties Union National Political Director Ronald Newman in an April 28 letter it sent to Homeland Security Secretary Alejandro Mayorkas called for the closure of the Krome North Service Processing Center in Miami, the Glades County Detention Center near Lake Okeechobee and 37 other ICE detention centers across the country.

The road leading to the Krome North Service Processing Center in Miami on June 7, 2020. (Washington Blade photo by Michael K. Lavers)

Survivors Pathway responded to trans woman’s murder in 2020

Survivors Pathway has created a project specifically for trans Latina women who Duberli told the Blade don’t know they can access the judicial system.

Duberli said Survivors Pathway works with local judges and police departments to ensure crime victims don’t feel “discriminated, or outed or mistreated or revictimized” because of their gender identity. Survivors Pathway also works with Marytrini, a drag queen from Cuba who is the artistic producer at Azúcar, a gay nightclub near Miami’s Little Havana neighborhood.

Marytrini and Duberli are among those who responded to the case of Yunieski “Yuni” Carey Herrera, a trans woman and well-known activist and performer from Cuba who was murdered inside her downtown Miami apartment last November. Carey’s boyfriend, who had previously been charged with domestic violence, has been charged with murder.

“That was an ongoing situation,” noted Duberli. “It’s not the only case. There are lots of cases like that.”

Duberli noted a gay man in Miami Beach was killed by his partner the same week.

“There are lots of crimes that happen to our community that never gets to the news,” he said. “We got those cases here because of what we do.”

Yunieski “Yuni” Carey Herrera was murdered in her downtown Miami apartment in November 2020. (Photo courtesy of social media)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Patrick O’Connell, acclaimed AIDS activist, dies at 67

Played key role in creating red ribbon for awareness

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Activist Patrick O’Connell was instrumental in creating the red ribbon to promote AIDS awareness. (Photo courtesy of Allen Frame; courtesy Visual AIDS)

Patrick O’Connell, a founding director of the New York City-based AIDS advocacy group Visual AIDS who played a lead role in developing the internationally recognized display of an inverted, V-shaped red ribbon as a symbol of AIDS advocacy, died on March 23 at a Manhattan hospital from AIDS-related causes, according to the New York Times. He was 67.

Visual AIDS said in a statement that O’Connell held the title of founding director of the organization from 1980 to 1995.

During those years, according to the statement and others who knew him, O’Connell was involved in the group’s widely recognized and supported efforts to use art and artist’s works to advocate in support of people with HIV/AIDS and efforts to curtail the epidemic that had a devastating impact on the art world.

Thanks to a grant from the Art Matters foundation, Visual AIDS was able to retain O’Connell as its first paid staff member in 1990, the group said in its statement.

“Armed with a fax machine and an early Macintosh computer, Patrick helped Visual AIDS grow from a volunteer group to a sustainable non-profit organization,” the statement says. “A passionate spokesperson for the organization, he helped projects like Day Without Art, Night Without Light, and the Red Ribbon reach thousands of people and organizations across the world,” the group says in its statement.

“We were living in a war zone,” the statement quoted O’Connell as saying in a 2011 interview with the Long Island newspaper Newsday. “But it was like a war that was some kind of deep secret only we knew about,” O’Connell said in the interview. “Thousands were dying of AIDS. We felt we had to respond with a visible expression,” he told the newspaper.

With O’Connell’s help, Visual AIDS in 1989 organized the first annual Day Without Art in which dozens of galleries and museums in New York and other cities covered art works with black cloths to symbolize the mourning of those who died of AIDS. Among those participating were the Brooklyn Museum, the J. Paul Getty Museum in Los Angeles, and the Metropolitan Museum of Art in New York, which replaced a Picasso painting with a “somber informational placard,” according to the New York Times.

In 1990 O’Connell helped Visual AIDS organize the first Night Without Light, which was held at the time of World AIDS Day. New York City’s skyscraper buildings, bridges, monuments, and Broadway theaters turned off their lights for 15 minutes to commemorate people who lost their lives to AIDS, the New York Times reported.

In the kickoff of its Red Ribbon Project in 1991, McConnell helped organize volunteers to join “ribbon bees” in which thousands of the ribbons were cut and folded for distribution around the city, the Times reports. Those who knew McConnell said he also arranged for his team of volunteers to call Broadway theaters and producers of the upcoming Tony Awards television broadcast to have participants and theater goers display the red ribbons on their clothes.

Among those displaying a red ribbon on his label at the Tony Awards broadcast was actor Jeremy Irons, who was one of the hosts. In later years, large numbers of celebrities followed the practice of wearing the red ribbon, and in 1993 the U.S. Postal Service issued a red ribbon stamp.

The Times reports that O’Connell was born and raised in Manhattan, where he attended Fordham Preparatory School and later graduated from Trinity College in Hartford, Conn., in 1973 with a bachelor’s degree in history. According to Visual AIDS, O’Connell served as director of the Hallwalls arts center in Buffalo, N.Y. from 1977 to 1978 before returning to New York City to work for a gallery called Artists Space.

The Times reports that O’Connell learned in the middle 1980s that he had contracted AIDS and began a regimen of early AIDS treatment with a cocktail of over 30 pills a day. His involvement with Visual AIDS, which began in 1989, ended on an active basis in 1995 when his health worsened, the Times reports.

As one of the last remaining survivors of his New York contemporaries who had HIV beginning in the 1980s, O’Connell continued in his strong support for AIDS-related causes through 2000s and beyond, people who knew him said.
Visual AIDS says it is gathering remembrances and photos for a tribute post for O’Connell on its website. It has invited people to share their memories of him by sending written contributions and images via email to: [email protected].

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