Officials from the national LGBTQ-rights advocacy Lambda Legal held an online discussion Sept. 23 to discuss the implications for both the judiciary and the LGBTQ community following the death of United States Supreme Court Justice Ruth Bader Ginsburg.
"We are facing a Supreme Court vacancy not only when we are facing an election, but when we are in the midst of an election," said Chief Strategy Officer and Legal Director Sharon McGowan. "People are voting right this minute."
McGowan was joined in the discussion by Litigation Director Diana Flynn, Senior Counsel and Seniors Strategist Karen Loewy and Senior Attorney and Health Care Strategist Omar Gonzalez-Pagan.
McGowen noted that Lambda has already done a significant amount of work defending the integrity of the judiciary, which she said has been 'under assault' over the course of the Trump administration. She added that President Donald Trump's shortlist of potential justices, published a few weeks prior to Ginsburg's death, contained an "extraordinary number of individuals hostile to LGBT issues."
The conversation centered on two individuals whose names have come to the fore as being Trump's most likely picks: Judge Amy Coney Barrett, whom Lambda had also opposed when she was appointed to a previous appeals-court post, and Judge Barbara Lagoa. Even without knowing yet whom Trump will pick, advocates "know what is at stake for people in the LGBTQ community and people living with HIV," McGowan added.
Flynn said that the most imminent threat to the LGBTQ community's legal rights at the moment is religious objections to compliance with civil-rights laws, and noted that one such matter is before the Court right now, Fulton v. City of Philadelphia. In that case, Catholic Social Services [CSS] refuses to comply with a local statute that requiring non-discrimination in foster-care referrals.
"If they are able to obtain the freedom to discriminate here, it is going to have substantial impact in this factual scenario," she said. "But the impact could even be broader than that. Because in order to make the argument that they should be free to discriminate against LGBTQ people, CSS is arguing that the Supreme Court should overrule prior precedent" saying that religious organizations were obligated to follow the same anti-discrimination rules as other organizations and individuals.
Loewy noted that harms in the LGBTQ community might be felt not just by young people who are charges in a church-run social-service agencies but by LGBTQ seniors as well, who are often also living under the auspices of church-run agencies. She further explained that that advocates are fighting to clean up the legal damage associated with historical discriminations that might have been overturned.
"We're really at a critical moment," she said, noting that the Social Security Administration is still battling to not pay out survivor-benefits to Americans whose spouses might have passed away before before marriage-equality was legal across the country, or before their marriage could have been legally recognized by SSA.
McGowan said that any nominee is sure to be hostile to the Affordable Care Act ( ACA ), and Gonzalez-Pagan noted that a relevant case—one ostensibly concerning the striking down of the individual mandate, but which could imperil the entire ACA—was scheduled to be argued before the Court Nov. 10.
"This will be enormous consequence to everybody," said Gonzalez-Pagan. "What they're trying to strike down here is people with pre-existing conditions, insurance marketplace reforms, the non-discrimination provisions of the Affordable Care Act and the ability to design plans that affect women more and the elderly more."
He further noted that Coney-Barrett has already expressed her hostility to the ACA: "Her being seated on this Court…really is a threat to the ability of people to have healthcare. … It's really a matter of life-and-death."
He also noted that numerous ACA provisions provide legal protections to marginalized Americans, among them LGBTQ persons, and the federal government has repeatedly flouted previous decisions by courts enforcing those protections. Flynn said that the government has asserted at times that employees of particular firms—such as a pharmacist or an ambulance driver—can assert that they cannot be compelled to serve transgender persons, for example.
"This is a campaign that has so far been using religious-rights as a sword, and not a shield, so as to interfere with the willing provision of services … to LGBT recipients," she said. Gonzalez-Pagan reminded them that those rights are inextricably tied to reproductive-rights, another historical litmus test for judges.
"This is why this election matters so much," said McGowan. "A big piece of why the courts matter so much is that they set the parameters for what is allowed. … Once they know what is allowed, a lot of the bad actors are emboldened."
"You're always threatened by a court that doesn't recognize your inherent dignity," Flynn concluded. "Regardless of what the test is, or the narrow legal principle that is applied, a court that is hostile to your very existence in society can, and would be inclined to, rule against you. That's a danger we might well face if one of these individuals is confirmed."
