With the expected confirmation of Amy Coney Barrett to the U.S. Supreme Court approaching, cries have emerged that she poses a threat to marriage equality — and leading that charge is the named plaintiff and defendant in the lawsuit that extended marriage rights for gay couples throughout the country.
Concerns over the potential vulnerability of same-sex marriage were heightened this month after Justices Thomas and Alito issued a statement ostensibly challenging the same-sex marriage decision, citing religious liberty grounds. If Barrett were to replace Ruth Bader Ginsburg, the court would have a 6-3 conservative majority in any re-evaluation of the case.
But the most imminent opportunity for Barrett to adjudicate a case related to LGBTQ rights is the issue of foster care. Catholic Social Services, in Fulton v. City of Philadelphia, is arguing a First Amendment right to refuse to place children with same-sex couples — even though it had a contract with Philadelphia in which it agreed not to engage in anti-LGBTQ discrimination through its taxpayer-funded activities. The case is set for oral argument on November 4, the day after the presidential election.
Speaking with Washington Blade, David Flugman, who has litigated LGBTQ issues, said the rollback of same-sex marriage with Barrett on the Supreme Court is “all too real” and the foster care case will be the canary in the coal mine.
“While I take some comfort in the notion that LGBTQ equality enjoys broad popular support in this country, the court could very well use the scalpel of religious liberty to kill the reality of equality with a thousand cuts,” Flugman said. “All Americans who believe in equal rights under law should rightfully be concerned.”
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