On the last day of the 2020-21 session, the U.S. Supreme issued relief and worry for the LGBT community.
On the relief side, the court on July 1 indicated it would not hear the appeal of a florist who wants to deny service to a same-sex couple getting married. The case, Arlene’s Flowers v. Washington, purported to be the “ideal vehicle” for resolving the original question skirted in Masterpiece v. Colorado.
In Masterpiece, in 2018, the U.S. Supreme Court voted 7 to 2 in favor of a baker who refused to sell wedding cakes for a same-sex wedding because, he said, to do so violated his religious beliefs. But the court did not say the baker had a First Amendment free exercise right to violate Colorado’s law against sexual orientation discrimination.
By refusing to hear Arlene’s Flowers, the Supreme Court is avoiding that issue for now and leaving intact a decision of the Washington State Supreme Court, which ruled against the florist twice — once before and once after the Masterpiece decision.
Ria Tabacco Mar, an ACLU attorney who represented the gay couple in the Arlene’s Flower case, applauded the court’s denial of review.
“No one should walk into a store and have to wonder whether they will be turned away because of who they are,” said Mar. “Preventing that kind of humiliation and hurt is exactly why we have nondiscrimination laws. Yet 60% of states still don’t have express protections for LGBTQ people like the kind in Washington State. Our work isn’t over yet.”
On the downside, the Supreme Court Friday agreed to hear a case where, once again, religious entities are trying to find work-a-rounds to laws and policies separating church and state. The court granted review to Carson v. Makin, which is not an LGBT-related case but is yet another case in which religious entities are seeking special dispensation under ordinary law. It’s also a case that echoes the arguments religious entities have been making to avoid complying with non-discrimination laws: that the religious person isn’t discriminating against a gay person, but discriminating against a person because his or her partner is of the same sex.
In Carson, the parents of five children in Maine are fighting a state policy of providing public funding for parents to send their children to private schools that are willing to provide “nonsectarian education.” Maine does not provide funding for parents to send their children to schools providing religious education. The First Circuit U.S. Court of Appeals said Maine could withhold funding to sectarian schools because the exclusion was not based on any school’s religious affiliation but on “what the school teaches through its curriculum and related activities, and how the material is presented.”
The Supreme Court did not indicate Friday whether it will review an appeal from a Catholic-run California hospital that refused to perform a hysterectomy for a female-to-male transgender patient. The case, Dignity Health v. Minton, was on the court’s list of cases to review in its private conference July 1.
But the court did refuse to review a lower case decision, Hoggard v. Rhodes, brought by the anti-LGBT Alliance Defending Freedom. In the case, a student at the Arkansas State University said her First Amendment rights were violated when the school refused to let her ignore university rules regarding the setting up of a table to form a chapter of a group on campus. The student lost in the lower courts on procedural grounds.
Friday’s orders list also disposed of a case similar to Americans for Prosperity v. California, which was decided Thursday. The conservative Institute for Free Speech appealed its case against California to stop the disclosure of donors. The Supreme Court order’s list July 2 granted the appeal and sent the case back to the Ninth Circuit for consideration in light of the high court’s ruling in Americans for Prosperity.
Lisa Keen is the Chief Correspondent for Keen News Service, a professional news organization specializing in national political and legal news that involves or affects gay, lesbian, bisexual, and transgender people.