Amy Coney Barrett has been fueling the fears of LGBTQ advocacy groups since President Donald Trump first nominated her to the federal bench in 2017. Now, with Barrett officially confirmed as an associate justice of the Supreme Court, advocates worry that she and the court’s five other conservatives could start stripping away gay rights imminently.
The most immediate concern for national LGBTQ and civil rights groups is Barrett’s presence on the court for next week’s arguments in Fulton v. City of Philadelphia, a case that looks at whether faith-based child welfare agencies can refuse to work with same-sex couples and other people whom they consider to be in violation of their religious beliefs.
Currey Cook, a lawyer with Lambda Legal, said Barrett’s “history and prior statements” about religious exemptions are “alarming” and have led him to conclude that Barrett would “be inclined to grant certain groups special permission because of their faith.”
Rachel Laser, CEO of Americans United for Separation of Church and State, called Barrett’s record on church-state separation “deeply problematic.”
“She has shown that she would allow claims of religious freedom to be misused to harm women, LGBTQ people, religious minorities and the nonreligious, among many others,” Laser said in a statement.
A number of LGBTQ and civil rights groups have also expressed concern about Barrett’s ties to the Alliance Defending Freedom, a conservative legal group that has been at the forefront of litigation arguing for an expansive view of religious freedom.
Over several years, Barrett delivered a series of lectures funded by the group, which submitted legal briefs against same-sex marriage inObergefell v. Hodges and successfully argued a Supreme Court case on behalf of Masterpiece Cakeshop owner Jack Phillips, the Colorado baker who refused to bake a cake for a same-sex wedding because he said it would violate his religious beliefs.
The Human Rights Campaign, the country’s largest LGBTQ rights group, said Barrett’s confirmation “threatens LGBTQ equality,” and it said her previous claim that she was “not aware” of the discriminatory history of the Alliance Defending Freedom was “rather incredible.”
When questioned about her association with the group by Sen. Patrick Leahy, D-Vt., during her confirmation hearing, Barrett described her experience as “a wonderful one.”
The Human Rights Campaign warned in a report this month that the court’s ruling in Fulton v. City of Philadelphia “could have a sweeping impact on the lives of LGBTQ people.”
“If the Supreme Court undermines nondiscrimination laws in Fulton, it could erode the efficacy of nondiscrimination protections that LGBTQ people enjoy across a wide spectrum of issue areas, including veterans’ services, public accommodations, economic security programs, and housing,” the report said. “Such a result would set a devastating precedent and create a significant roadblock on the path to full equality.”
The Human Rights Campaign and Lambda Legal were among 185 primarily LGBTQ organizations that sent a formal letter to the Senate last week opposing Barrett’s confirmation due to her approach to “issues like privacy, equal protection, and religious liberty.”
‘A time bomb waiting to go off’
Arthur Leonard, a professor of labor and employment law at New York Law School, said Barrett’s presence on the Supreme Court could have a profound impact on LGBTQ rights.
Regarding Fulton v. City of Philadelphia, Leonard said, “That case is sitting there like a bomb waiting to go off, and I’m concerned how the court will deal with it with the addition of Amy Coney Barrett.”
Leonard said he expects Barrett to favor an “expansive view” of the free exercise of religion and to favor overturning lower court rulings that sided with the city of Philadelphia, which terminated its contract with Christian Social Services for foster care services after it refused to work with same-sex prospective parents.
Although they are seemingly unrelated, Leonard said, the ruling in Fulton could have implications for the right to marry.
Leonard said that while an outright overturning of Obergefell v. Hodges, the landmark case that made gay marriage legal across the U.S., is not on the horizon, the conservative court could “begin chipping way” at the right to marry by carving out a religious exemption that undermines the equal treatment of same- and opposite-sex couples mandated by the Obergefell decision.
“This case already gives the court the chance, within the current term, to say, ‘No, Obergefell does not require equal treatment for same-sex and different-sex couples.'”
Leonard said the Fulton case could also affect another landmark decision: Bostock v. Clayton County, Georgia, in which the court ruled in June that nondiscrimination law in Title VII of the Civil Rights Act of 1964 covers sexual orientation and gender identity and extends protections to millions of LGBTQ workers.
“Depending on how Fulton is decided, depending on how broadly they rule, it is possible to tear a big exception in Title VII,” Leonard said. Such a ruling, he said, could result in the “dangerous undermining of civil rights law,” which would affect not only LGBTQ people, also but people of color, women and religious minorities.
A decision in the Fulton case could come as early as the spring.