Civil and Human Rights

#PurpleChairChat: Advancing LGBTQ Rights

To mark Pride month, CAC’s Elizabeth Wydra and National Center for Lesbian Rights’ Legal Director Shannon Minter discuss the ongoing work to secure equal rights for LGBTQ persons. 

SHOW TRANSCRIPT

ELIZABETH WYDRA: Hello, I’m Elizabeth Wydra, President of the Constitutional Accountability Center and welcome to today’s Purple Chair Chat. We call these conversations purple chair chats because normally, we would be coming to you from the iconic purple wing chairs in CAC Washington, DC offices, but we like so many of you have been working from home during the Covid-19 pandemic and making due. So many of us have lost so much during these difficult times and I sincerely hope that you are staying safe and well and seeing a light of hope at the end of the tunnel.  

Purple Chair Chats tackle the important legal, political, constitutional issues of the day. And today, I am absolutely thrilled that, especially during pride month, we are joined by Shannon Minter the Legal Director for the National Center for Lesbian Rights. NCLR is one of the nation’s leading advocacy organizations for lesbian, gay, bisexual and transgender people and a valued ally and coalition partner of all of us at CAC.  

Now, Shannon himself is a veteran of many of the most important legal battles for the rights of LGBTQ people over the last several decades, including serving as lead counsel for same-sex couples in the landmark, California marriage, equality case, that affirmed the fundamental right to marry. Shannon. I’m so thrilled that you could join us today. Welcome.  

SHANNON MINTERThank you, Elizabeth. It’s great to be here. 

ELIZABETH WYDRA: So, there’s so much talk about. I went to dive right in. In addition to your path-breaking work on marriage equality, you, of course, have also been a leading advocate on cases, including at the Supreme Court level, that deal was religious liberty claims that some have said amount to a license to discriminate against LGBTQ individuals couples or families. And that brings us right up to this week’s Supreme Court ruling and Fulton v. City of Philadelphia. Can you explain for our viewers, what is at stake at Fulton and what the court decided?  

SHANNON MINTER: I’ll give it a shot. I mean, we’ve been seeing these cases emerge in for quite a while now. All the way back to a case that was decided by the New Mexico Supreme Court several years ago, which I think was the first one to pose this question of potential conflict between anti-discrimination protections for LGBTQ people and religious liberty. Then eventually just now, of course, the case that issue reach the U.S. Supreme Court, in the Fulton case that you are asking about. So in Fulton, the issue was whether a religious adoption agency that entered into a contract with the city of Philadelphia, had a free exercise right under the First Amendment to not comply with the anti-discrimination provisions in the contract when it came to prohibitions on sexual orientation discrimination because the provider Catholic Social Services was not willing to place or evaluate potential adoptive homes for same-sex couples because it conflicted with their religious beliefs. So, oh my goodness. I mean, there’s been so much anticipation, anxiety, worry. And the, you know, the many many months that it takes for a case to get briefed in the U.S. Supreme Court, and then the oral argument. And then we’re all waiting and waiting for the decision. And then finally, it has it came down and to everyone’s shock. It was a real, very big surprise. It was a unanimous decision authored by Chief Justice Roberts. Now, it was in favor ruled in favor of the adoption agency but on extremely narrow grounds that has everyone who cares about these issues talking and debating. But I would just say and there’s different perspectives on it and we’ll talk about that I’m sure but my two cents on it is that I do think we dodged a real bullet here. The court very well, could have, for the first time, recognize some broad, sweeping religious liberty exemption to anti-discrimination laws but it did not do that. It issued a ruling very narrow based on very specific facts in that case that I think will have very little application to other contexts.  

ELIZABETH WYDRA: Yeah, so I think, you know, not to get too much into the weeds but so that they’re, there was this very kind of bold conservative position. That said, as you mentioned Shannon that, you know, there should be a broad sweeping exemption when you have a religious liberty claim to complying with anti-discrimination laws, and that would have overruled a long-standing precedent authored by Justice Scalia. That’s called Smith v. Employment Division and Smith stands for the proposition right now that if there is a generally applicable neutral law that has an incidental burden on religious liberty that that’s okay. And so the narrow position that you’re talking about allowed liberal Justice, more liberal justices to join us of the more conservative justices and say well this law isn’t a generally applicable law because it allowed for some exceptions and discretion etcetera. So that so that’s the narrow part that you’re talking about and you know I certainly see still some ominous clouds on the horizon. I totally agree with you. That it could have been a worse decision but it also could have been a lot better, you know, there. I feel like and we argued in our brief that you know it has been a long-standing that there’s been a recognition that when you have competing constitutional rights and values here the First Amendment Religious free exercise, the Constitution’s 14th Amendment among others guarantee of equality and equal treatment under the law, that if it’s a general neutral law that you have to comply with the anti-discrimination law. And you know, it was to me it was concerning and maybe it’s because we don’t have Justice Kennedy anymore, that there didn’t seem to be this real grappling with the equal protection rights of the couples at issue here. What do you see on the horizon I guess. You know there’s been some good case law coming out of this conservative Supreme Court in the Bostock case that applied Title 7 to LGBTQ individuals but also some concerning signals that there could be these big religious-based exceptions to LGBTQ rights.  

SHANNON MINTER: Yeah, I mean, let me be clear. I think we dodged a bullet in this case, but as you noted, there are there’s a lot of things that are somewhat ominous about the decision. I think that it is very clear that while the court was willing on this one to punt this issue for when they.. the sort of constitutional merits of whether or not there can be constitutionally based exemption to anti-discrimination laws under the free exercise clause, they’re going to say that, yes, there can be. I mean, I think all of the signs are there that they have that the court has, there’s a majority of justices on the Supreme Court who are ready to do that. And I think in some ways the decision in Fulton was intended and should be received by us, LGBTQ advocates and people who care about LGBTQ equality as some kind of a warning that we need to be prepared that that is probably going to happen at some point. There’s a several cases teed up right now that present this very same issue that the court has yet to decide whether it’s going to accept cert on any of these cases is but there’s there’s like half a dozen of them. They don’t all involve, actually a conflict between religious liberty and LGBTQ rights, either. Some of them involve just involve religious liberty, and some more kind of traditional conventional context, but that would also allow the court to revisit the Smith decision. But I mean Elizabeth, I know, and I know not everyone agrees with this, I know, but I think given that we have been sent, I think a very clear warning about what is to come. I think it would behoove us as a movement and as a community to try to where we can work out accommodations with people who are seeking and entities and organizations who are seeking religious liberty exemptions, I would rather do that voluntarily, I’d rather do it even legislatively, or even based on policies then to have the Supreme Court hand down a sleeping constitutionally-based, categorical rule, that is going to potentially wreck a lot of havoc.  

ELIZABETH WYDRA: That’s interesting. So the idea that you try to work out the accommodations before, you know, as you’re crafting the policies because certainly the signals are very clear from the Supreme Court that if that isn’t done, then they will probably do it for folks. And as you mentioned, you know, this is something that has, you know, come up in other contexts, this Fulton case, of course, comes up in the context of foster care and government contracting with religious-based, social services organizations. But a lot of folks might remember the Masterpiece cake shop case from a couple years ago, that involved, obviously a private business and that case a baker who refused to bake cakes for same-sex couples. And you know, in that case again, the court kind of took a more narrow, you know, not the worst case scenario based on you know kind of a factual distinction in that case and that seems to be where we are. You know, fortunately it seems as if the Court is not going to even with this new conservative majority, you know, knock out from under us the crucial important precedents like Obergefell that recognizes the fundamental right to marriage equality, you know. We saw in Bostock, again a positive case that applies employment anti-discrimination principles to LGBTQ individuals, but there does seem to be this kind of chipping away and that is very concerning. And, you know, I’m interested in your thoughts on how we know what we’re seeing with respect to the fallout from the Masterpiece cake shop. Because I will say, you know, one thing about this kind of fact-based incremental approach which again, is better than a broad, bad sweeping ruling, is that there is lots and lots of litigation and that can kind of be unsettling.  

SHANNON MINTER: And yeah, I mean, if I think I can’t, I’m really aware that this is, you know, maybe going to be a somewhat controversial view among some other LGBTQ advocates. I’m not sure, but I do think there’s also people who agree with me. I think that we need to listen when the Court is telling us that they are very inclined to recognize new constitutionally-based religious exemptions. Now they ducked, it twice. They gave us a break and Masterpiece Cake Shop avoided, the issue they just did it again and Fulton. But I mean seriously, the writing is on the wall. And, and I think instead of just like doubling down and going right back and pushing the same issues in exactly the same way. We’re going to end up right back to the Supreme Court. And we are eventually going to lose with the current Court. We will eventually lose. I think we should be trying to keep these cases out of the Court and we should be trying to reach a cultural legislative accommodation around religious liberty, that will be, it’ll be something we can negotiate, it’ll be I actually think it could even be healthy for our democracy for us to make greater efforts to engage with people who are seeking out these exemptions and try to do some  de-escalation, try to address and mitigate some of the cultural conflict and tension that has built up around these cases. But we’re not, you know, we so far we’re not, we’re not really doing that too much, there’s another case in front with that, same baker, and Masterpiece Cake Shop, a new discrimination claim, brought by transgender woman who, you know, he wouldn’t make a cake to celebrate her, the anniversary of her gender transition. He lost in front of the Colorado Human Rights Commission. In that case is working its way back up you know, through the courts and on the one hand sure that, you know, that individual has every right to bring a claim like that. On the other hand, you know, to be honest, I wish he hadn’t. I really think we need to just pause take a step back. Re-think our political and legal situation and recognize that as you pointed out the courts not going to. There has shown no inclination to undermine these core rulings like Obergefell. We just got another huge victory and Bostock to a large extent, we have won these, these legal, and cultural battles in a very big sense. And I think we just think it would behoove us to try to be more gracious winners and to recognize that it would be good for us to try to be a little more open. Let’s just say, open to conversation and understanding of people who, you know, have these deep-seeded religious beliefs that are giving them, you know, causing them to want to, you know, get involved in these legal conflicts with us. I think we can do more to do head them off. 

ELIZABETH WYDRA: It’s so interesting the, you know, strategic choices and you know, this is life and death for a lot of people and I think that it can be very difficult to grapple with those possibilities and the difficult rulings that we see possible in this conservative Supreme Court. When, you know, LGBTQ Americans, look at the Constitution and say I am owed equal protection of the laws, you know? I deserve liberty, and the pursuit of my happiness, just as every other member of the American family does. And, you know, you’re talking about some really difficult strategic choices about litigation. And I think that, you know, there is this growing support across the country, recognizing the equal dignity of our LGBTQ family members. And so, you know, I think that it’s certainly an interesting period. And so much to celebrate this month and every month in terms of how far we’ve come. But also recognizing how much work there is still left to do. And, you know, there obviously is some hope on the horizon with the Equality Act in Congress which would ban discrimination against LGBTQ Americans because even after the marriage equality victory, you know, it was you could get married on Sunday but fired on Monday for who love and choose to create a family with. So, you know, there’s a lot, there’s a lot going on. So I’m very glad that you’re here to talk about it with us and you know, we’ve been talking about the Supreme Court and the federal level but there’s also a lot going on in the states. Can you talk a little about how NCLR is engaging with these issues in the states? And you know, I know a lot of us are very concerned about these harmful laws that are targeted. You know, tragically at transgender young people in particular.  

SHANNON MINTER: Yes. Yeah. I mean we have seen just in the past couple of years just really shocking unprecedented number of state laws, proposed legislation, and then and in an unfortunate number of states, actual laws enacted that target transgender youth. These, you know, they’re mostly around banning transgender kids from playing school sports which is so cruel and just one would think just unthinkable. I would think of that how devastating that is for children, and yet, eight states now have passed laws like that. And then even more frightening, it was a whole spade of bills, that would have criminalized the provision of medical care to transgender kids. And now thankfully only one of those passed in Arkansas and it’s already a lawsuit has already been filed challenging it. I mean, the good news on the sports fans as well too is that I don’t, I do not think they will stand. I do think that legal challenges against them will be successful. The first one, Idaho is the first state to pass a law like that. They did that two years ago. And it was really challenged and very encouragingly, really conservative judge should have been appointed by President Trump joined that law. Even though he was very conservative, he looked at all the evidence and recognize that the law is so draconian and so extreme and really isn’t doesn’t have any kind of evidentiary basis. I mean, there’s no indication that transgender kids are doing anything harmful by playing sports or causing any harm to anyone. So that is encouraging, what’s discouraging is that we have to devote all these resources and energy to fighting these horrible laws. I would much rather have all that you know that the energy and resources going towards more proactive endeavors, but be that as it may, as we as we have the, you know, face moments like this so many times in the past were facing a moment of just extreme targeted at backlash this time against trans kids and yeah NCLR is preparing litigation, all the other litigation groups are too. You know, we’ll step up and meet the challenge. But gosh, I wish we didn’t have to. 

ELIZABETH WYDRA: Yeah, Amen to that. And you know, when we think about ways in which we’re hopeful, I know that I’m hopeful knowing that people like you are fighting every day for the kids for our equal rights and, you know, so that that certainly is something I think that I celebrate and others do as well. Now we’re almost out of time. But speaking of things to celebrate, I cannot have a conversation with Shannon Minter without urging first of all, all of you to follow him on Twitter, he’s @ ShannonMinter5 because you will not only get expertise on important legal issues but you can follow the saga of Shannon’s, amazing animal rescues. So Shannon, I don’t know. I know I’m not the only one who liked got through much of these dark days over the last several years by following Albert and Sister and Squeaky. How many rescues do you have at this point? You’ve got to have have like 30.  

SHANNON MINTER: Oh my gosh I love that you actually know their names. Well I have..we have four dogs now and we’re up to seven cats. What can I tell you? It all goes back to a couple years ago and I found this little abandoned kitty and an abandoned puppy on the same day and then next thing you know more puppies showed up more kitties, pregnant feral kitties. What can I say? We have a house full now.  

ELIZABETH WYDRA: Well bless you and you know there they are. We have them up. There’s a from the night I think this is right after you found Albert and squeaky and you know if you ever have any free time I think there’s a like children’s book in the works there. Thank you so much, Shannon. Thank you so much for joining us. Thank you to everyone for watching and you can find out more About the Constitutional Accountability Center and the work we do on LGBTQ issues and more at www.theusconstitution.org. Thank you again Shannon. Please be well.  

SHANNON MINTER: Thank you so much Elizabeth. 

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