In the final weeks before the election, it’s worth bearing in mind Fulton v. City of Philadelphia, which begins arguments in front of the court on November 4th.
The case involves Catholic Social Services (CSS), a faith-based organization that contracts with Philadelphia to provide multiple social services, including foster care. After the CSS refused to place foster children with same-sex couples citing religious objections, the city notified CSS that they would no longer make referrals to agencies that discriminated against LGBTQ+ couples, as those companies were in violation of the city’s nondiscrimination ordinance. CSS and three foster parents sued. A Pennsylvania district court and later the Third Circuit Court of Appeals both ruled in favor of the city, as the nondiscrimination ordinance did not target any specific religion. However, CSS then appealed to the Supreme Court, which agreed earlier this year to hear the case.
A ruling in Fulton v. Philadelphia will undoubtedly impact the LGBTQ+ community, although in two possible and radically different ways. A SCOTUS ruling that upholds the lower courts’ rulings would further cement the anti-discriminatory stance the court had taken in recent landmark cases. However, a ruling in favor of the CSS would grant religious exemptions to anti-discriminatory policies and effectively give anyone the right to refuse services to another based on religious objections.
The possibility that Amy Coney Barrett will likely join the Supreme Court before arguments in Fulton v. Philadelphia begin is disconcerting for many proponents of LGBTQ+ rights. Her record on issues relating to same-sex marriage gives further pause for concern. Her rushed confirmation through the Senate in the waning days before the 2020 election makes the situation even more bitter. It’s the end-game of an obstructionist policy by conservative lawmakers to pack the courts with conservative judges just before a landmark case that could redefine American policy for decades.
It’s also the most striking example of the power the Trump administration has on shaping our federal court system. In just one term, Trump will have appointed three of the nine SCOTUS justices, putting him on par with Ronald Reagan — who appointed three in two terms — and above Barack Obama, Bill Clinton, and both George H.W and W Bush — each with two nominees.
The administration has also been gifted control over the lower court system, thanks in part to the obstructionist policies that Senate Republicans used to prevent the confirmation process from advancing after Merrick Garland’s nomination to the Supreme Court by President Obama in 2016. According to data provided by the Pew Research Foundation, as of July 2020, one-quarter of all federal judges — 194 out of 792 — were Trump appointments. Trump nominees accounted for 24% of the federal district courts, the statewide and regional courts that are the first stop for cases that enter the federal system — still below the 39% that consists of Obama appointments. However, 53% of current judges on the appellate courts, where cases often go once they leave the district courts, are Trump appointments — “an unusually large number,” according to Pew researchers.
The numbers are a possible harbinger of things to come for the dozens of LGBTQ+-related cases that are currently working their ways through the lower tiers of the federal system. Most of these cases are in the discovery, or pretrial stage, in the district courts — the lowest tier in the federal court system — and while they aren’t as immediately impactful as Fulton v. Philadelphia, they’re likely to shape the landscape of LGBTQ+ rights over the next four years. Many are challenging discriminatory policies of the Trump administration, which now has the power to appoint judges who may potentially hear their arguments.
While there is no guarantee that any of these cases will inevitably draw a Trump judge or that the Trump judge is bound to rule for or against any one side, the outcomes of these cases could either preserve or further erode LGBTQ+ rights.
So what’s at stake if Trump is given another four years as president? Possibly a lot for the LGBTQ+ community.
Brute Political Force
The problem isn’t that Republican presidents get to nominate federal judges; the balance of power dictates that any presidential administration can and should nominate federal judges. The balance of power also assumes that judicial appointments, regardless of the nominee’s personal political convictions, will be neutral adjudicators of the law once appointed.
The problem lies in how partisan the process has become, beginning with Republican lawmakers’ efforts to stall the appointment process in the second term of the Obama administration. The refusal to consider Merrick Garland for SCOTUS was the most public example.
Republican lawmakers also refused to hear appointments to the lower courts during the 114th Senate (2015-2016). According to a 2018 report written by Russell Wheeler of the Brookings Institute, the 114th Senate was well behind its predecessors in judicial appointments, even for years when the executive branch and Senate were controlled by different parties. Of the 88 district and 17 appeals vacancies that Trump inherited, 71 and 7 respectively were hold-overs from the Obama administration. Other vacancies would have occurred in the latter half of 2016, when the Senate has traditionally ceased hearing court appointments — a practice that emphasizes the uniqueness of Barrett’s confirmation process. Obama had submitted nominations for all seven appeals vacancies and for 42 of the 71 federal seats. None were approved.
While the obstructionism of the 114th Senate doesn’t account for all Trump judicial appointments, many of which became vacant after Obama’s nomination period had ended, it has led to the creation of the court system in a largely partisan fashion — and has helped give Trump an edge over his predecessors where nominations are concerned. All of the appeals court vacancies have been filled, and as of October 13th, 56 vacancies remained in the district courts, with nominees pending for 33.
Of course, in an ideal system, judicial appointees — regardless of their party affiliation — remain neutral arbiters of the law. What makes Trump unique is that he’s inherited his vacancies in a largely partisan-era and many of his nominees hold more extreme conservative views, including where LGBTQ+ rights are concerned. For example, Stephen Grasz, a Trump appointee to the Eighth Circuit Court of Appeals, opposed recognizing same-sex marriage when he was Attorney General of Nebraska. He also served as the Board Director for the Nebraska Family Alliance, an organization that promotes the use of conversion therapy, and was deemed “not qualified” for appointment by the American Bar Association for his inability to check his emotions and personal beliefs when adjudicating legal issues.
Then there is Kyle Duncan, an appointee to the Fifth Circuit. Prior to his appointment, Duncan had a long history of opposing LGBTQ+ rights, including same-sex marriage, as noted by the organization Lamdba Legal in a letter sent opposing Duncan’s nomination to the senate Judiciary Committee leaders. In January this year, as a circuit judge, he ruled in the majority in a 2-1 opinion denying the right of Katherine Jett, a transgender defendant, to have her name and personal pronouns changed to reflect her gender identity on federal court documents.
But not all Trump judges have followed this trend. This past summer, Judge David Nye — a stalled Obama nominee who was then renominated by Trump to an Idaho district court — ruled against the state banning transgender athletes from women’s sports teams.
For now, with few Trump appointees ruling on LGBTQ+-related cases, it’s too early to tell if we’ll see a discernible partisan trend in their decisions. “It takes some time for cases to work their way up through the federal courts,” says Shannon Minter, Legal Director for the National Center for Lesbian Rights. “I don’t think we can say we have yet seen enough decisions by enough Trump appointees to identify a clear pattern.”
However, although non-partisanship has historically been expected of judges, Minter also notes how the nomination process itself has become increasingly partisan. “This administration has taken it to a whole new level just in a show of brute political force, refusing to entertain President Obama’s nomination of someone to replace Justice Scalia,” he tells GO. “I think there is widespread consensus that the process now is driven by brute political power to a degree that is qualitatively different than in the past.”
The obstructionist policy enforced by the 114th Senate assumes that neutrality in judges is no longer desirable. The process is only legitimized if the ruling party controls the nominees whom it believes will inevitably serve the party’s ideological interests.
Who Has Access To Justice?
While it’s too soon to tell if a partisan trend will emerge in Trump judge rulings, the administration’s policies aren’t in such doubt. Since taking office, Trump has rolled back protections for the LGBTQ+ community, particularly transgender persons.
“We have already seen such hostility against the transgender community from this administration that I would fear seeing that same hostility from courts hearing cases challenging the administration’s orders,” says Jennifer Levi, GLAD’s Transgender Rights Project Director and lead counsel in Stockman v. Trump and Doe v. Trump — two cases which challenge the transgender military ban. Although we don’t yet know what the outcome of Trump’s appointments will be, she tells GO that it’s “potentially very problematic and concerning.”
It’s also harmful that the administration hasn’t been transparent in its policy-making decisions. The courts are one place where it can be held accountable. In May 2019, Lambda Legal and the Education Fund filed a suit against the Department of Health and Homeland Security (HHS) to release information regarding the department’s coordination with anti-LGBTQ+ groups in deciding healthcare policy, including the Denial of Care Rule, which effectively grants providers the right to refuse care based on religious grounds. Lambda Legal, in conjunction with other organizations, has also filed suit challenging the HHS policy in Santa Clara County, California; in 2019, the Rule was struck down in three federal courts across the country.
In Stockman and Doe, which are both in the discovery process, “We are trying to press the government to provide the facts and the information that it reportedly relied upon to adapt a ban on transgender people serving in the military,” Levi tells GO. “The government has really tried to throw up a lot of roadblocks to keep us from getting information about the process and about the work that the military did to basically put into effect the ban that it was told to implement by the president.”
As in the case of Santa Clara County v. HHS, the lower courts have been instrumental in halting administrative policies that are problematic or discriminatory. However, even in the discovery stage, each side can appeal pretrial decisions made by a lower court judge, which may decide levels of transparency with information-gathering or pause the implementation of policy.
In the case of Karnoski v. Trump, which also challenges the military ban, a district judge ordered a halt to the ban in 2017. The administration responded by releasing a revised plan — one targeting not transgender individuals, per se, but those with “gender dysphoria” — which, it claimed, made the ruling against the original no longer applicable. The revised plan, too, was rejected by a federal court, as was the government’s request for a stay on the injunction halting the ban, which it had appealed in the Ninth Circuit Court of Appeals, and then to the Supreme Court. SCOTUS split along ideological lines, allowing the ban to go into effect while the case remained in the lower courts.
This last example brings us back to where we started: with the Supreme Court. Even favorable rulings for the LGBTQ+ in the lower courts could end up on appeal before the highest court in the land, which will likely soon have a 6-3 conservative majority. In Fulton v. Philadelphia, both federal and appellate courts ruled in favor of Philadelphia. Will SCOTUS uphold the lower court rulings or issue into effect religious exemptions that have the potential to discriminate broadly?
The last possibility gives cause for concern, thanks to the change in dynamics Trump, and the Republican-led Senate, have brought to the judicial appointment process. “A significant number of [Trump] appointments are people who hold very extreme views, and that’s really changing the very nature of the federal judiciary in a way that will be very harmful and alienating to many different groups in our society,” Shannon Minter of NCLR tells GO. “And if people lose confidence in the courts, and have to [have] faith that they’ll have a fair hearing or that they have any chance of having their rights vindicated, it’s just a dangerous development.”
For Levi, “certainly this administration has had a huge number of appointments in the federal and district courts, and it definitely has changed the potential access to justice at the trial level of our federal courts.”
While Fulton is already before the Supreme Court, the next four years will likely decide the fate of cases still in the lower courts — how they move forward, and in some cases, whether they need to.
“I think that a lot will turn on the election,” says Levi, when asked if she’d anticipate an appeal should a lower court rule in favor of either Stockman or Doe. “The ban can be reversed by another administration. So the outcome of the next election is potentially quite significant.”
Joe Biden has announced that he would dismantle the transgender military ban and change the law to protect transgender and LGBTQ+ rights should he win the election in 2020. He’s run on a record of being a consensus-builder who can work with colleagues across the party aisles, but should he win the election, and Republicans maintain control of the Senate, what would keep them from using the same obstructionist policies they employed in the final years of the Obama administration?
What’s not in doubt is the Trump administration’s hostile treatment of the LGBTQ+, especially with regards to transgender persons. It has authorized policies that have written transgender persons out of government institutions, and as with the Denial of Care Rule, has promoted religious exemptions to allow for further discrimination of LGBTQ+. It has also been given unprecedented control over the federal judiciary, where many of these policies are now, or will soon be, on trial.
So far, these policies have not held up well in the court system. But the cases which challenge these policies are in the opening stages. Should he win re-election in November, Trump would have more opportunities to fill the courts with judges who may be ideologically sympathetic to his positions — which could be a devastating blow to the LGBTQ+ community.