With a new 6-3 majority on the U.S. Supreme Court, conservative justices appeared to side Wednesday with a religious-affiliated agency seeking a First Amendment right to reject LGBTQ couples in foster care services.
In the case of Fulton v. City of Philadelphia, Catholic Social Services argues a First Amendment right to refuse to place children with same-sex couples even though it signed a contract with Philadelphia agreeing not to engage in anti-LGBTQ discrimination through its taxpayer-funded activities.
During oral arguments, conservative justices — displaying open animosity toward non-discrimination rules for religious institutions — seemed poised to rule to allow Catholic Social Services to reject LGBTQ couples in foster care services.
In the case of U.S. Associate Justice Clarence Thomas, the animus wasn’t just directed at LGBTQ non-discrimination principles, but the very idea LGBTQ couples would be suitable parents at all.
Thomas asked, Jeffrey Fisher, a Stanford law attorney arguing on behalf of the Support Center for Child Advocates & Family Pride, if the City of Philadelphia, has an interest in ensuring children are placed into suitable homes, which implies LGBTQ couples aren’t suitable.
“Don’t you think it’s in the best interest of the the child to also have a pool, that is, that is beneficial to the child?” Thomas asked. “I don’t understand why that isn’t also in the best interest of the child.”
Fisher, rather that starting a fight with Thomas over the premise of his question, said the city “100 percent agree[s],” but shifted the argument to why the non-discrimination requirements are important.
“The city’s point is that when you enable an FCA to discriminate on the basis of orientation that will stigmatize the youth, that is a compelling interest,” Fisher said. “LGBT kids are an outsize number of people in the foster care population, and it’ll undermine the ability of the program to operate.”
In a huff, U.S. Associate Justice Samuel Alito sneered that the City of Philadelphia only terminated its contract with Catholic Social Services because of hostility toward religious views against same-sex marriage.
“If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” Alito said. “It’s the fact 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.”
The case came about in 2018 when the City of Philadelphia found out Catholic Social Services wasn’t abiding by these rules. The city terminated the contract with the foster care agency.
U.S. Associate Justice Brett Kavanaugh criticized the City of Philadelphia, saying governments should be trying to find “win-win” solutions to accommodate same-sex marriage and religious objections.
“But when I look at this case, that’s not at all what happened here,” Kavanaugh said. “It seems like Philadelphia created a clash, it seems, and was looking for a fight, and brought that serious controversy all the way to the Supreme Court.”
With a new 6-3 conservative majority on the Supreme Court, the views conservative justices expressed would suggest Catholic Social Services is headed for a win.
U.S. Chief Justice John Roberts, however, kept his cards close to his chest compared to his more conservative colleagues.
Roberts, consistent with his recent practices of siding with the liberal justices, opened up questioning in oral arguments by suggesting Philadelphia, not the Supreme Court, is best positioned to settle this issue.
“This is a case involving Free Exercise rights, but it’s in tension with another set of rights, those recognized in our decision in Obergefell,” Roberts asked. “And whatever you think, or however you think that tension should be resolved as a matter of government regulation, shouldn’t the city get to strike the balance as it wishes when it comes to setting conditions for participating in what is, after all, its foster program?”
Attorneys arguing before the Supreme Court cited multiple decisions on religious liberty, maintaining on both sides the freedom of religion under the U.S. Constitution benefits their arguments.
Neal Katyal, a Georgetown law professor arguing on behalf of the City of Philadelphia, said the broad ruling sought by Catholic Social Services would open the door to invidious discrimination — not just against LGBTQ couples.
“This case, I think as [the late U.S. Associate] Justice Scalia might say, comes as a wolf,” Katyal said. “Petitioners’ rule would enable an FCA to exclude parents of any religion — from Buddhist to Baptist — and this court — because it can’t second guess the reasonableness of a belief — it opens the door to all sorts of claims…and it radiates far beyond foster care to hold government contracts in all 50 states.”
Lori Windham, senior counsel at Becket Law firm, argued on behalf of Catholic Social Services, that the City of Philadelphia is denying the placement of children in foster care into homes because it won’t allow Catholic Social Services to conduct services consistent with its religious views.
“The city has no compelling reason for excluding Catholic Social Services, which has exercised its faith by serving at-risk children in Philadelphia for two centuries, nor does it have any interest in refusing to allow the agency to step aside and provide referrals elsewhere,” Windham said.
Representing the Trump administration in the argument was Hasim Moopan, counselor to the U.S. solicitor general, who maintained the City of Philadelphia was hostile toward Catholic Social Services. (However, that argument suggests the Trump administration is seeking a ruling akin to the Masterpiece Cakeshop decision, which would be limited in nature and not a sweeping First Amendment decision as sought by Becket Law.)
“What the city has done is worse than cutting off its nose to spite its face, what it is doing is cutting off homes from the most vulnerable children in the city to spite the Catholic Church,” Moopan said.
A major point of contention was whether the Supreme Court could allow Catholic Social Services to reject LGBTQ families in foster care, but still require them to abide by non-discrimination laws on the basis of race and, for example, prohibiting discrimination against interracial couples.
In response to a question from the newly confirmed U.S. Associate Justice Amy Coney Barrett, Windham denied that allowing Catholic Social Services to reject LGBTQ families would open the door to another case allowing a foster care agency to discriminate on the basis of race.
“No, your honor,” Windham replied. “If that case were even to get to strict scrutiny, this court has been clear in Loving [v. Virginia] and other cases the government has a compelling interest in ending racial discrimination. It’s a far cry from here, where [Philadelphia Department of Human Services] Commissioner [Kimberly] Ali said that the interest is no stronger or no weaker than enforcing any other policy. It’s hard to imagine the city making that kind of concession in a case involving interracial marriage.”
U.S. Associate Justice Stephen Breyer, one of few liberal justices remaining on the bench, was irate over the idea the Supreme Court would issue a ruling discrimination is permissible, just as long as it isn’t racial discrimination, asking Moopan to clarify whether that is in fact the administration’s position.
“I want to interrupt you right here, because the two of you said this, that we should write an opinion, which says discrimination on the basis of race constitutionally speaking is different than the discrimination on the basis of gender, on the basis of gender, on the basis of nationality, on the basis of homosexuality,” Breyer said.
Without explicitly affirming that was the case, Moopan argued the Supreme Court has previously made rulings about “how race is unique in this country’s constitutional history and eradicating that type of racial discrimination presents a particularly unique and compelling interest.”
U.S. Associate Justice Neil Gorsuch pointed out the City of Philadelphia has shifted its argument to saying even without the contract Catholic Social Services was violating its non-discrimination ordinance.
Windham, responding to Gorsuch’s questioning on the matter, called that shift an “important fact.”
“If we’re going to take the city at its word there, what it means is that we’ve stepped out of the contracting context now, and we are firmly in the regulating context,” Windham said. “What the city is saying to Catholic Social Services is that it is illegal for you to do this work in the city of Philadelphia according to your religious exercise, whether you contract with the government or not.”
Another issue was whether same-sex couples had even approached Catholic Social Services for foster care services. Under questioning from Alito, Windham said the number was “zero” before the events at issue now.
Sotomayor, however, pointed out the reason LGBTQ couples weren’t going to Catholic Social Services was because it had an open policy to begin with saying it would refuse to certify them for child placement.
All eyes during oral arguments were on Barrett given she’s a new justice on the court. Although she wasn’t as harsh as some of her conservative colleagues on the bench, she nonetheless appeared sympathetic to Catholic Social Services.
At one point, Barrett invoked a hypothetical in which the city has taken over all hospitals, contracts with private entities to run them, then a Catholic hospital already in existence before the policy gets a contract, but has to perform abortions.
“In that context, do we analyze this as a licensing question, or given that the Catholic hospital can’t even enter the business without this contract, do you still say that this was the provision of a contractual service?” Barrett asked.
Katyal rejected that idea, however, saying the hypothetical was off-base because Philadelphia isn’t monopolizing foster care services and Catholic Social Services still has a $26 million budget to conduct services on its own.
“[T]he government somehow monopolizing a private care system — health care system or hospital system — that itself would raise any number of constitutional problems and I think our intuition as to why that hypothetical sounds so horrible is because of that,” Katyal said.
Liz Cooper, a Fordham law professor and the director of the Feerick Center for Social Justice, said in a statement after the argument the resolution to the case should be simple.
“The City of Philadelphia asks no more of CSS than that it adheres to the city’s laws prohibiting discrimination,” Cooper said. “CSS, and similarly situated agencies, are free to pursue their beliefs that LGBTQ people and couples should not be parents, but not when it seeks to carry out the mission of the city — namely, to provide safe and loving homes for children and teenagers in need.
CORRECTION: An earlier version of this article misattributed a quote from Jeffrey Fisher to Neal Katyal. The Blade regrets the error.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.
D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.
Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.
According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.
Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.
An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.
“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”
The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”
Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.
Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.
In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.
“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.
Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.
The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.
In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”
At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.
The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.
The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.
In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.
The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.
It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.
Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.
The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.
The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.
Biden names civil rights veteran to U.S. Education Dept.
Catherine Lhamon’s portfolio will include LGBTQ rights, sexual misconduct, racial discrimination
The White House announced Thursday that President Joe Biden has nominated Catherine Lhamon to serve as the Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education.
Lhamon currently serves as a Deputy Assistant to the President and Deputy Director of the Domestic Policy Council for Racial Justice and Equity at the White House, where she manages the President’s equity policy portfolio. She is a former attorney for the American Civil Liberties Union, (ACLU) and served as chair of the U.S. Commission on Civil Rights from 2017 to 2021.
She has also served as Legal Affairs Secretary to California Governor Gavin Newsom.
Her portfolio at Education, where she previously served in the same position under former President Barack Obama, will include LGBTQ rights, sexual misconduct and racial discrimination in the nation’s K-12 schools, universities and colleges. Lhamon was Assistant Secretary for Civil Rights at the Department of Education, to which President Obama nominated her and the Senate confirmed her in 2013.
“I am thrilled that President Biden is nominating Catherine Lhamon to serve as Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education. Catherine has devoted her career to ensuring equity is at the core of all her work,” U.S. Secretary of Education Miguel Cardona said in a statement released by his office Thursday.
“She has a strong record of fighting for communities of color and underserved communities, whether as the current Deputy Director of the Domestic Policy Council, the former chair of the U.S. Commission on Civil Rights, or as a civil rights educator at Georgetown University. We are thrilled to have Catherine serving as Assistant Secretary for Civil Rights and know she will continue to fight for fairness, equity, and justice for all of America’s students.”
Lhamon has also litigated civil rights cases at National Center for Youth Law, Public Counsel Law Center, and the ACLU Foundation of Southern California. Lhamon taught federal civil rights appeals at Georgetown University Law Center in the Appellate Litigation Program and clerked for the Honorable William A. Norris on the United States Court of Appeals for the Ninth Circuit.
“Catherine Lhamon is the right choice to lead the Department of Education’s Office for Civil Rights at such a critical time for the country and the agency. There is much work to do in order to roll back the harmful policies and legacies of Betsy DeVos, from her attacks on transgender students to her unconscionable revocation of discriminatory discipline guidance and rewrite of Title IX rules,” Adele Kimmel, Director of the Students’ Civil Rights Project at Public Justice told the Blade in an email.
“During her previous tenure in the same job, Catherine embraced equality, enforced Title IX and ensured students had an ally inside the federal government. She will do so again, and the Senate should move to quickly confirm her so she can begin the work of restoring the Department’s commitment to protecting the civil rights and dignity of students and implementing the Biden Administration’s pledge to undo the damage that DeVos has done,” Kimmel added.
Born in Virginia and raised in California, Lhamon graduated from Amherst College and Yale Law School. Lhamon and her husband and two daughters are transitioning between California and Maryland.
IDAHOBiT events to promote intersectionality, resilience, allyship
HRC president to participate in virtual panel in Canada
Intersectionality, resilience and allyship are among the themes that this year’s International Day Against Homophobia, Biphobia and Transphobia events will highlight.
Dignity Network Canada and the Black Coalition for AIDS Prevention on May 17 will hold a virtual panel that will feature Human Rights Campaign President Alphonso David, Canadian Center for Gender and Sexual Diversity Executive Director Debbie Owusu-Akyeeah, Kaleidoscope Trust Executive Director Phyll Opoku-Gyimah, COC Nederland Executive Director Marie Ricardo and Rainbow Railroad Executive Director Kimahli Powell. The British High Commission and the Dutch Embassy in Canada have co-sponsored the event.
“We hope that this will be a really interesting and important conversation on intersectionality and transnational solidarity — and what it means for these leaders and their organizations during these times,” reads a description of the event.
The U.N. LGBTI Core Group on May 17 will host a virtual IDAHOBiT event that will focus on ways to develop an “inclusive and diverse post-pandemic world.” The World Bank Group, the International Monetary Fund, the European Bank for Reconstruction and Development, the Inter-American and Asian Development Banks host a similar IDAHOBiT commemoration.
“In order to heal from the economic, social, and public health dire impact the pandemic has had and still has, every plan of recovery must take into account a human-rights based, intersectional and gender responsive approach that addresses the specific needs of LGBTI persons in order not to leave them further behind,” reads a description of the U.N. LGBTI Core Group event.
Several Russian LGBTQ rights groups on May 17 will hold a “Vaccine for Acceptance” event that seeks to bolster allyship in the country.
Retired South Africa Constitutional Court Justice Edwin Cameron on May 16 will moderate a virtual panel that will focus on religion and anti-LGBTQ violence.
Workplace Pride and the Dutch Embassy in Budapest on May 17 will host a symposium on LGBTQ-inclusive workplaces in Hungary. M.V. Lee Badgett, an economics professor at the University of Massachusetts, on the same day will participate in a webinar the U.S. Embassy in Singapore is hosting with Oogachaga, a local LGBTQ advocacy group.
Haver Srbija, a Serbian NGO, on May 15-16 will hold Falafel, a film festival that seeks to build “bridges and promotes Israeli, Jewish and LGBTQI culture and communities” and highlight “various social issues in the context of the fight against prejudice, discrimination, anti-Semitism, homophobia and xenophobia and encourages the audience to develop critical thinking on the issue of these topics.” Proud Lebanon is slated to hold a series of six webinars between May 17-22 that will focus on feminism, LGBTQ rights and other topics.
The National Center for Sexual Education in Cuba will hold a series of virtual forums and other events through the month to commemorate IDAHOBiT.
CENESEX Director Mariela Castro, whose father is former Cuban President Raúl Castro, during a May 4 press conference in Havana said the IDAHOBiT events are part of the process of amending the country’s family code to make it more equitable for LGBTQ Cubans. Mariela Castro said a bill to amend it will be introduced in the Cuban Parliament in July.
“I was able to appreciate that the majority of the population … is in favor of recognizing the rights of LGBTI+ people and especially the rights in the family sphere that include the possibility, the option, of marriage,” said Mariela Castro during the press conference, according to Tremenda Nota, the Washington Blade’s media partner in Cuba.
IDAHOBiT commemorates the World Health Organization’s 1990 decision to declassify homosexuality as a mental disorder.
This year’s events will take place against the backdrop of a pandemic that continues to exacerbate existing inequalities for LGBTQ people and other vulnerable groups around the world.
Consensual same-sex sexual relations remain criminalized in dozens of countries. Violence based on gender identity and sexual orientation remains rampant in the U.S. and throughout the world.
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