SCOTUS with Amy Coney Barrett and the ACA and LGBTQ Rights, Oh My!

Newly-appointed Supreme Court Justice Amy Coney Barrett has a proven track record of being a very conservative judge on issues like sexual violence, the Affordable Care Act, LGBTQ+ rights, and reproductive health and rights. In her confirmation hearing, Justice Barrett refused to answer many questions surrounding abortion, in vitro fertilization, and birth control. Caroline Reilly, legal fellow with Rewire News Group, talks to us about Justice Amy Coney Barrett’s past experience and personal views could certainly influence the future of health and rights in the United States.

Justice Barrett is the third Trump-appointed judge to the Supreme Court, turning the court into a 6-3 supermajority conservative makeup. This means that, in order to pass a liberal ruling with Justice Robert’s support, the court would also need to pull Justice Kavanaugh, Gorsuch, Alito, or Thomas over to the liberal side. There are many cases that will face this supermajority court this term including those that cover LGBTQ+ and family discrimination, abortion bans, the ACA, and more. Ultimately, these fundamental rights hinge on whether or not Justice Roberts and one of the more conservative members on the bench rules with the liberal judges.

For example, the Affordable Care Act case that is on the roster this term alleges that the since the individual mandate of the ACA was originally ruled constitutional by the Supreme Court because it was a tax and now individual mandate is a zero dollar tax it invalidates the entire Affordable Care Act. Oral arguments on Monday, November 9th, 2020, discussed whether or not the individual mandate is severable from the ACA. Justice Kavanaugh made positive comments that indicated support for severing the tax mandate and not repealing the ACA in total. While this is surprising, it is in no way indicative of how he will rule. Fulton v. City of Philadelphia is a case that arose due to Catholic Social Services not allowing LGBTQ+ families in Philadelphia to take children in to their foster homes. This case calls into question issues of LGBTQ+ rights and religious refusals, and set the precedent for other organizations that receive government subsidies to discriminate and point to this case as their free pass to do so. These cases are prime example of how the rightward shift of the court will impact the likelihood of the court handing down a liberal decision.

Links from this episode

Rewire News Group on Twitter
Rewire News Group on Facebook
Caroline Reilly on Twitter
More information on California v. Texas
More information on Fulton v. City of Philadelphia

Transcript

Jennie: Welcome to RePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: Welcome to this week's episode of RePROs Fight Back. I'm your host, Jennie Wetter, and my preferred pronouns are she/her

Jennie: How's everybody doing? Y'all, we made it through election season. Well, mostly… there's the Georgia runoffs, but we have made it through and there is going to be a huge swing in reproductive rights policy that comes out of a Biden/Harris administration from what we are seeing with the Trump administration. And that is going to be wonderful, but even more exciting is we have the first woman vice president, the first Black woman vice president, the first South Asian vice president. That is so amazing. There's been so much stress in the last weeks that we haven't had a chance to really let that sink in. I mean, I know I haven't, it's just so wonderful that we are having the first woman of color vice president, and that is really something to celebrate. I had just got so much joy from listening to DC celebrate. It was something… my neighborhood just erupted into cheers, and they would spontaneously erupt off and on throughout the day, there were horns honking. There were fireworks. The joy in the area was just unreal and it brought me happiness to see the relief, and joy coursing through our neighborhood. It was something… it'll be great to see what policies we're going to get around reproductive health and rights coming out of a Biden/Harris administration. I'm not going to focus on that today. We'll talk about it in a future episode. What are the hopes for the repro community? What do we hope that we can get out of a Biden/Harris administration? And we'll talk about that because we have high hopes on the election. I don't know that too much exciting has been happening in my life. Still, basically staying at home. I'm not going out a ton and still baking. So let's see what have I done? I tackled another recipe that intimidates me. So I don't know what came over me all of a sudden night decided that I really needed to try to make bagels. I made cinnamon raisin bagels and y'all, they were delightful. They weren't as scary as I thought they were. So again, lesson learned, quit being so intimidated by recipes. You haven't tried yet just because they seem like they might be a little scary. Doesn't mean they are. They're delightful and I will absolutely be making them again. So that's the biggest thing, starting to look at the holidays. And I know my parents really would love for me to go to Wisconsin, but I just, it doesn't seem like it's the best choice at the moment. And so that's going to be a real bummer. That'll be the first year ever I won't be home for the holidays, but I would rather keep everybody safe than put people at risk. So I know it's the right thing to do, and we'll be able to get together when things are safe and have a big celebration then, but it's still a little sad, but everybody's health is worth it.

Jennie: So with that. I guess that we’ll turn to this week's episode. So I know we've talked a little bit about the Supreme Court recently and with the passing of Justice Ginsburg, but we haven't had a chance yet to talk about the new Justice Amy Coney Barrett. So today we are going to do that. We're going to talk about her. And we're also going to talk about two of the cases that have been before the court already, since she's been on it. And that's an LGBTQ rights case and a challenge to the Affordable Care Act. So helping me do that, I have Caroline Rilley at Rewire News Group, and we have a wonderful conversation about all things SCOTUS. So with that, I'm going to turn to the interview. Hi Caroline. Thank you so much for being here today.

Caroline: Thank you for having me.

Jennie: Before we get started do you want to take a second and introduce yourself and include your pronouns?

Caroline: So my name is Caroline Rilley. I'm a legal fellow with Rewire News Group and my pronouns are she/her.

Jennie: I'm so excited to have you on today to talk about a lot of things SCOTUS, which I feel kind of a lot of recently, but there's been a lot indeed. So, so far on this podcast, we haven't had a chance to talk about Amy Coney Barrett yet because there've been a lot of other repro things happening that we've had to talk about. So maybe let's start there. Can you tell us a little bit about Justice Amy Coney Barrett? Oh boy. We're not used to saying that yet.

Caroline: No, I think it's going to take a while for that to register in the brain as a real thing. I mean, first of all, just the fact that we've had this administration nominate three Supreme Court justices is really to be frank kind of sickening and Barrett is no different than Gorsuch and Kavanaugh in that she has a proven track record of being a conservative judge, even though she was only a judge for a very, very short time before she was nominated to the bench. I think that's sort of unique about her. Usually there's a little bit more judicial experience, but I think she was nominated for a specific reason. And that was to further the agenda of this administration. We've seen this administration, we talk a lot and we talked about this at Rewire this week, but we've heard a lot of talk, especially during the election, about packing the courts and who's going to pack the courts. And I think it's really critical to say that for four years, that Trump and conservatives have packed the courts. They might've not expanded the bench. They might've not added judges to panels, but they have stacked the courts with justices that they know will uphold their agenda. And so Amy is just an extension of that. She's someone who has been not clandestine about her opinions on abortion in the past. She has not a great track record and by not great, I mean really terrible track record on a lot of progressive issues. We found out a couple of weeks ago, horrible rulings on things like sexual violence and LGBTQ rights. I mean, she is just everything you would expect from a Trump appointee. And so she was not a judge for very long. She is now a Supreme Court justice. She famously forgot one of the protections in the first amendment at her hearing, which I think that is really everything you need to know about her. And it was the right to protest, which again, pretty telling. And what we've seen from her in the first couple of cases of this term is that she is exactly the person we thought she was. She is someone who is going to parrot conservative, talking points. She is an overtly conservative judge in her questioning and in the rulings that we've seen from her, I think one of the more notable, maybe not notable, but in this repro space is that she's someone who has been vocal about her disdain for abortion. And even though when asked at the hearings, how would you rule in Roe, she invoked the Ginsburg rule, which I think she sort of twisted, to say it is an uncommon for SCOTUS judges to not elaborate on hypotheticals of cases that could possibly come before them. That is what the Ginsburg rule is, is that they won't indicate how they would rule on an issue that would come before them.

Caroline: But something like Roe, which is precedent, and it has been precedent since the seventies, we have had judges in hearings, pass comment on it, and she was not up for that. She said, I'm not going to talk about hypotheticals, but we don't really need her to answer that question because we have her name on a public letter that called for the prosecution of abortion providers. She publicly affiliated herself with a religious right group that not only oppose abortion, but through their support for personhood opposes the destruction of embryos, which is a common and critical part of IVF. So we don't really need to hear it from Amy, how she feels about abortion at the hearings. We know how she feels about these issues and it's really bad, not to sugar coat. It it's really bad. And we have an abortion case coming before the Supreme Court coming from Mississippi. It keeps being rescheduled. Where wondering if maybe that's because they're going to try to tie in the Kentucky ban with it. We're not sure yet why the court keeps rescheduling it. But I personally, I think I speak for people in the repro world, I'm really scared of her getting a 15 week ban in front of her. So that's, yeah.

Jennie: Thinking back to her confirmation hearing, which feels like forever ago, it was so striking to me the question she wouldn't answer, not even directly, but around IVF and others. I feel like there was a birth control related one that just were really concerning thinking about the future for reproductive health and rights.

Caroline: Yeah. I mean her performance at her confirmation hearings was despicable. It was days of watching Republicans lob questions at her to make her look like a sacred mother figure who would do no wrong. And a couple of Democrats being slightly easier on her than I think some of us would have liked to have seen. And then a couple of Democrats really pointing out that this was true with a lot of the conservative judges that Trump has appointed. She has been handpicked by organizations like the Federalist Society. This is not this idea that judges and the court in general that are in traditionary lower courts, Supreme Court, isn't a political government body is just a farce. It's not true. I think it was Senator Whitehouse who pointed it out. But when you look at the funding and you follow the money of where her nomination came from, I mean, it's incredibly unusual for someone with two years, or I think it was two years…it was a very short amount of time of judiciary experience to be appointed to the highest court in the land. Like something is really weird. And when you look at the people who pushed her nomination and you follow that track, what you see is that it is rooted in these dark money organizations that when I was in law school, the Federalist Society person was a very specific type of person. And it was not the type of person that you wanted to go to parties with. For starters, it's not the type of person I was friends with, which I'm sure comes as no surprise, shocking. It was the kind of person who was like, “can I just play devil's advocate for a minute?” It was like, you're not playing devil's advocate. This is what you actually think. You actually think that Roe is not precedent. And just say that, and these are the people who are behind her nomination is a partisan group. It is, even if it's not explicitly saying that it's places like the Thomas Moore Law Center, it's places like the Federalist Society, it's these conservative, many of them religious organizations that have their ties in conservative money that launched her. And I think that was aside from her… sidestepping of every basic question that would actually reveal who she really is. This revelation that some of the Senate Judiciary Democrats made about how her nomination came to be. I think really says a lot, really everything about her, which is that she's been appointed for a very specific reason. Her hostility towards the ACA was a huge feature of the hearings. And again, something that she repeatedly declined to speak on, but again, we don't really need her to speak on that. We have her decisions on it. We have, we are not at a loss for an understanding of her opinion of the ACA. And that is completely in line with a judge that the Federalist Society would appoint and would favor is someone who would oppose something, the ACA or abortion access or birth control or any number of progressive issues, not even progressive basic human rights. Let's be honest.

Jennie: It’s frustrating thinking about what this is going to mean to the court. So, we already had a five-four conservative majority, and this turns it into a six-three majority. And that kind of fundamentally changes where the center of the court is and what this means for decisions coming down the line to me, we'll talk a little bit about what Amy Coney Barrett being on the court is going to mean for the court.

Caroline: Yeah, absolutely. I mean, like you said, okay. So, before I was in my first or second year of law school, when Scalia died, because my first year and the nomination of Merrick Garland, I remember my classmates being like, cool, like a centrist white guy. Great. I mean, better than Scalia, to be honest, but nothing radical. And then we watched that seat stay open. And when Trump appointed Gorsuch, it was horrific, but we were like, okay, it was Scalia's seat. So we still had Brier and Kagan. So, to my point, are Ginsburg and Roberts who, he tends conservative, but we've seen him rule with the more liberal judges on occasion. And that is somewhat of a dark comfort. We'll call it. And then the retirement of Anthony Kennedy. I mean, I think a lot of people, the court hit hard and yeah, the court definitely turned with Barrett. I mean, I think we had five-four prior to Ginsburg's passing, but one of those five was Roberts and like Roberts penned the Obergefell opinion, right? So he's not someone who is as reliably conservative as a Alito or Scalia was, or Thomas or even Kennedy-- he's occasionally useful. But when Kennedy stepped down, it was that I think was really the turning point for the court. Not more so than Barrett, but that's when things started to become a lot of the stuff is going to be pretty irreparable for at least a long time to come. Let's be honest. But I remember I was working in a nonprofit in Massachusetts for survivors of sexual violence. When that news announcement came out, I remember sitting my office and the whole office, just the hallway is just filled with profanities. Cause everybody was like, what are you doing Kennedy? I mean, everybody knows what he was doing. He was stepping down to make room for someone like Kavanaugh. And then we had to watch the cabinet hearing, which was a national trauma for all of us. I think Gorsuch, there could be an argument can be made…it's weird because Gorsuch is a very conservative judge, but compared to Kavanaugh and Barrett, and maybe it's because we've been going through this for so long, I think he didn't seem as egregious at the time, but he is still very firmly conservative. And then we got Kavanaugh on who I think Imani, she has a wonderful name for him, I think she calls him justice keg stand, which is really correct, you know? And then we got Kavanaugh on again, like we still had Roberts to sort of hold on to, and now we have a six-three super majority of conservative judges. So even if we have Roberts rule with the liberal judges, we still have a conservative majority. So in order for us to get a ruling, not on the conservative side of the issue, we have to pull a Alito, Thomas, Gorsuch, Barrett, or Kavanaugh over to a liberal side, which is a lot different than even pulling Kennedy over.

Jennie: That's a real heavy lift.

Caroline: Right? This is not pulling. I mean, I don't even really think it's like pulling Scalia over. It's just this brand of conservative judge, I think is more, I don't want to use the word firebrand because that has like almost too positive a connotation, but it's dogmatic. Exactly. That's sort of looking for it. You know, I think what you learn in law school is to a certain extent, there's the principle of originalism and textualism and Scalia was really in love with that. And occasionally it meant that he ruled in a way that was unexpected because he respected the process of law. That's not to say that he was good, if there is anything it's just specifically a commentary on how he practices as a judge and how he used the law. And I think what you're going to see with someone like Barrett or Kavanaugh, or even Gorsuch is more of a district guard for basically the principals precedent and just how the reverence of the court works. And of course, that's not unique to Trump appointees or say in Clarence Thomas, his wife is like an out now political person, which is not supposed to happen in the family of Supreme Court justices. They're supposed to be, we're not supposed to be, to be like, “Oh, that person has someone who hates the ACA in their house.” That's not supposed to be the case. So on the one hand, this is not unique to Trump, but a conservative majority on the court is a nightmare. It really, really is. And it's just stomach turning to think about what is going to happen when some of these cases are being decided. We can get some glimpses of that when we listen to oral arguments, as we have been for the last couple of weeks, but it's anybody's guess, I mean, we don't really know much about Barrett and how she'll rule because she doesn't really have a storied judicial career. And what we do know is a great, so

Jennie: I really, when the news came about Justice Ginsburg, we just could see it all coming right? That we were going to get somebody so terrible to replace her and what that would mean for so many issues that we care about. And I feel like I had my like week of mourning and rage and falling apart. And then now I just can't even think that far ahead. Right. I need to get through the next fight and not think about it's bad and it's going to be bad for a while.

Caroline: Yeah. And I think we won't really know that we can definitely speculate on how bad it is going to be. But I think we won't really know until we start getting decisions. And then we'll really get a sense of the allegiance of these judges. Cause I mean, a lot of the cases that are coming before this term, I mean, we have the ACA case. We have Fulton, which is a case about LGBTQ and family discrimination. We have the 15-week abortion ban out of Mississippi. These are cases that are about fundamental rights as often the cases before the Supreme Court are. And it's really terrifying to think that these fundamental rights hinge on whether or not one of the most conservative members of the bench decides to wake up and rule with the liberal judges, despite a history of not doing that.

Jennie: Yeah. I feel like it's a, how bad it's going to be. Are they willing to be really super sweeping in their opinions or only bad?

Caroline: Right. And I think we saw that this week with the ACA case where the state of Texas…

Jennie: Yeah. Let's take a second, talk about that. What is the ACA case?

Caroline: The state of Texas and a number of other states, as they always do, say that the ACA is unconstitutional and an issue in this case is which we've seen again already, the individual mandate and the petition on that side is that the individual mandate is an improper use of the government's taxing power, right? So, we have to rewind for a little bit here. So the 2017 Congress, so 2010, when the ACA was passed, they made clear that the tax mandate was a critical part of that legislation. In 2017 Republicans in Congress zeroed out the tax mandate because initially they had moved to overturn the ACA and after the public was like, no, please don't do that, awful people! They were like, fine. We'll zero out the tax mandate so that there is no tax. If you're not enrolled, that's, it's basically a moot point and rendered that part of the ACA legislation moot and the way that the Republicans framed it was it's part of a tax cut, and we're doing this for you. We're going to save you money. So now Republicans are essentially challenging a tax mandate in the ACA that is a moot point because it doesn't charge anybody any money anymore because of them. And what was interesting about oral arguments on Monday was so one of the issues here is whether or not the tax mandate is severable from the rest of the ACA meaning, can the court say, sure, the tax mandate, let's scratch it, but we're going to leave the rest of the ACA intact. And there's not severability language in the ACA legislation, but that does not mean that does not preclude the court from severing the individual mandate. So really the question is can they sever the individual mandate? That would be sort of the moderate. Obviously, if we had a different court, they might be able to say the ACA is constitutional. We ruled on the individual mandate. We've done this before. Stop bringing these, leave us alone. But we don't have that court. Kavanaugh asked some questions this week that indicated some positive leaning towards the idea of severing the tax band aid and not repealing the ACA in total, which is good and surprising, but also not necessarily indicative of how he's going to rule, because we know that he can be kind of wild card, awful when he hands down rulings, when he writes decisions, concurrences, whatever. So that was interesting. The middle case scenario is they sever the tax credit. They say, fine, we'll give this one to you. It's not constitutional. And then leave the rest of the ACA intact. I think Imani explained it best this week on the Boom! Lawyered podcast. She said, basically severability is like, you have a person who has a tumor and severability would be like, let's take the tumor out. Not severing would be like, let's kill the person. So the Republicans want to kill the person. And then this argument for severability is we don't have to kill the person. Let's just take out the part you don't like and go on with our lives and challenges to the ACA already, because it reveals a real level of hypocrisy in conservatives. Because on the one hand, they're saying, we zeroed out this tax credit, we made it. So it doesn't charge you anything because we're really here to make you not pay money. We want to save you money. And now what they're doing is they're trying to repeal a piece of legislation that saves millions of people thousands of dollars on health insurance, really what was zeroing out the credit really about? It wasn't about saving anybody money. It was just about giving rise to a new claim to challenge this tax mandate in the ACA.

Caroline: So we won't know how they're going to rule, Kavanaugh’s passions were, we'll say a pleasant surprise, which is not a term I ever really liked to use about him. But again, it's not an indication of how he'll rule. It's just, we don't know.

Jennie: Yeah. I had people who were excited go this means it's going to be fine. I mean, no, no. I mean, he's, you know, he goes into chambers and he talks to Amy and he talks to Gorsuch and Alito and Thomas and you never know.

Caroline: I mean, even if we get Roberts, that's only five-four. So we don't have to be entirely pessimistic. And you know, the fact that there is that sort of severability option where we can give a little bit of credence to the petitioner's argument, that's maybe good that we have that option and that will maybe sway someone like Kavanaugh who seemed amenable to it. But it's hard to say it's not the kind of case you want before a conservative super majority that's for sure.

Jennie: Okay. So the ACA wasn't the only case that has been in front of the Supreme Court that is of note lately, there was Fulton versus Philadelphia. Do you want to maybe tell us a little bit about what that case is?

Caroline: So Fulton city v. Philadelphia, what it is basically, it's a Catholic foster care agency in the city of Philadelphia, CSS, Catholic Social Services. They handle placements for adoption and foster care of children in the state. They are a religiously affiliated organization. They have a policy against letting training through. So, there's two processes with foster care. There's a screening, which is the initial application process to be a foster or adoptive parent, and then matching, which comes later when person has been accepted into the system and they match them with a child. And that will come up later as to why that's important. They prohibit LGBTQ families from entering into the screening process. And what happened was when you listened to oral arguments, the petitioners wanted to make this out. Like the city of Philadelphia was, as I think Jess said again this weekend, was really like fixing for a fight. They instigated this. But what actually happened was this policy was ongoing and people started reporting it to local newspapers and it became visible. So, what the court is hearing is I think what petitioner’s CSS would like you to think this case is about is religious discrimination. What it really is about is the right to parent the right to have a family and LGBTQ discrimination. Because nowhere, if the court were to side with the city of Philadelphia, which the city of Philadelphia has anti-discrimination legislation. So if you're getting state money, if you're getting government money from the city of Philadelphia, you can not engage in discriminatory practices, which is pretty standard. That's not an unusual thing. If you want to be a private entity, you want to get private school and only let it… whatever. That's a different story, but this is an organization that is getting government funds. And so they're saying, if you want to do that, you cannot tell LGBTQ parents that they can't apply to adopt. They're not telling them you have to screen and match LGBTQ parents. They're just telling them, you have to let LGBTQ parents apply to be adoptive or foster parents in your system. And what happened during oral arguments was the attorneys for CSS turned it into, this is an affront to our religious liberties, which is ridiculous. Like I said, this is not a case where if the city of Philadelphia wins, they're going to start mandating that CSS chooses gay parents. This is simply a matter of discriminatory practices. It's not a matter of instructing CSS to do anything and using public money, right? They're doing it in our name essentially. And they're using public money to say what was really, really repulsive. Listening to oral arguments was listening to the attorneys for CSS say things like it goes against our religion to acknowledge. This is not a direct quote. You know, it goes against our religion to allow a gay person to parent, or it goes against our morals… it's like we don't live in… it's 2020. That is ridiculous. And the other issue that kept coming up over and over again is this issue of what kind of precedent this case could set. And that is where again, we return to our friend, Amy, who there were a lot of instances during the hearings where the issue of interracial marriage came up because discrimination against race is met with a strict scrutiny standard, which is the highest level of scrutiny by the court.

Caroline: If a case comes before the court, and it's about racial discrimination, they have to apply the strictest level of analysis to that case. If that discriminatory practice wants to stand, which is basically to say that it is next to impossible. That's how we got interracial marriage and et cetera. So they kept saying, well, this is distinct from interracial marriage because this is about religious liberty and LGBTQ rights. It's different as if to say that the rights of LGBTQ parents are somehow less intrinsic and more inalienable than other forms of discrimination. And I think what's really important to remember… there is even if something like sexuality or gender, which is legally not a strict scrutiny application, there's still a level of scrutiny applied, right? Just because something isn't race discrimination doesn't mean that you get to decide this discrimination is fine because it's not right. That's not how this works. They have to have a compelling government interest. There's a horrific indignity and stigma to being told that your sexuality, who you're married to, who you love, dictates your right to parent. And I think the other point is that we know statistically, there are large numbers of LGBTQ youth in foster care. And so, where you're also doing is you're denying them and anybody else in foster care, the right to a loving and supportive family. And one other thing that came up over and over and in this case was that this particular agency, CSS had not discriminated against any LGBTQ family specifically. They hadn't actually turned one away. And I think it was Briar who said it. But the thing about that is if you are an LGBTQ parent and you're looking to adopt or foster, are you going to go to the agency that you know, is validly homophobic? No, of course you're not. It doesn't make sense. Of course, they haven’t discriminated because who wouldn't try to adopt through an organization that thinks that you're not a fit parent because you're in a same-sex relationship? It's just not going to happen. So, the sample size is kind of a moot point, to be honest. And also we do have instances of other religious foster care organizations turning away LGBTQ families, and the way that CSS frames, the argument was that, well, if you really against us, then we'll have to stop doing this sacred work that been doing for forever and we'll shut down and it will disadvantage children.

Jennie: And again, it's like, no, you're denying children the right. Like that's not your…if you're not providing the services in a way that is non-discriminatory, we don't have to pay for you to describe it.

Caroline: Right. And the other thing is this case is if the court were to rule with CSS, this would have, it seems like kind of a wonky niche case because it's foster care agency. It's the state of Philadelphia. It's really, the precedent could be so dangerous. First of all, I think it's important to note that religious foster care agencies are incredibly prevalent Catholic charities. It's not at all uncommon for a religious organization to be the preeminent foster care agency in a state and a region. It is an area that is saturated with Christian and religious organizations. And that has impacts that are really wide ranging. I mean, I've done research and reporting on how do young people in foster care get access to abortion and birth control. And if they're in a religious group home, I mean, it's difficult enough if they're not in a religiously affiliated organization, if they are it's insidious, it's everything from the messaging on the paperwork, to the pamphlets to emails, they might get the religious presence in these organizations is really, really insidious for the people who operate within them. But sort of like Catholic hospitals. There are people who adopt and foster young people through them who are not religiously affiliated, but who do so because they are the option where they live. And that's another thing to bear. It thought it was witty to bring up during the hearings where she said, well, if we side with the city of Philadelphia, then if a Catholic hospital that's getting government funds decides to not provide abortion, then there'll be able to say, no, you have to. Which first of all, first of all, yeah, no, exactly. That's a great idea. Abortions are good decision, it's healthcare. We should be able to require them to perform abortions, but also that's completely out of left field. That's something that Jess and Imani talked about on Boom! Lawyered this week, which is that her oral arguments at Fulton, we're really going to central. This is what she was here to do. She was here to distinguish LGBTQ rights from race discrimination and to be like, don't worry, we're not coming for that. We're just coming for… as if those two things are inseparable. I mean, we know that all of these rights are connected. We know that this isn't one identity of someone. She did that. And then abortion, which came out of nowhere. It's like this case isn't about abortion. So, she did that.

Jennie: Do you not know everything's about abortion?

Caroline: Everything in my life lately. And again, the precedent that this case could set foster care agencies around the country would have the ability to discriminate. And it was Briar who made the point that this inevitably will not only be about discriminating against LGBTQ families as it bends isn't bad enough, but it will be about one religious organization discriminating against another religious organization. We've seen that in, Imani interviewed one of the plaintiffs in the case who was discriminated against by a Christian foster care agency for being Catholic, which in their view was the wrong type of Christian. So, this isn't, again, if this was just about this one issue of LGBTQ parents, being able to adopt through a Christian foster care agency, that would be enough for it to matter. It is about a lot more though, and it will set the precedent for other government funded organizations. It will allow other organizations, substance abuse, treatment, healthcare, all of that, that get government subsidies to discriminate and point to this case as their excuse to do it. So again, not a case you want in front of a six-three conservative majority. I think the oral arguments at this case were slightly more worrying because Thomas, Alito, Barrett, Gorsuch, and Kavanaugh were all pretty firmly there. Questions indicated that they felt a very specific way about it.

Jennie: I'm worried about what this court is going to do around religious freedom. And we had some of those good rulings last term that I think are just waiting to have big religious liberty arguments, carved big exceptions into them. And I think we're going to see a lot of things like that coming.

Caroline: Yeah. I think it's important to note that, especially with the makeup of this court, when we talk about religious liberty, we're talking about a specific religion. We're talking about white Christianity that needs to be said, we're not talking about religious liberty. We're talking about a group of people who were nominated by a president who banned Muslims from coming into the country. So this is not a matter of religious liberty. This is a matter of white supremacy, as far as I'm concerned. I mean, there are a lot of LGBTQ parents who are practicing Christians. Like these are not mutually exclusive things.

Jennie: It's very less about protecting your individual religious liberty than someone else being able to use it against you.

Caroline: Exactly. Nobody is imposing anything on CSS by saying, Hey, you just can't do this one thing. You just can't tell gay people they can't be foster parents. There's very little being asked of them except to be decent at the most basic level. And to pit this as religious rights versus LGBTQ rights is just so transparently tailored to appeal to this chord.

Jennie: Okay. A small sampling of what has already come up in front of the court. So let's not end on a bummer. Let's talk about what can we do? What actions can people take right now to fight back on all of this stuff.

Caroline: I mean, the court is both a government body that I think we have some say in, because I think a lot of times people feel like the court and judges are removed from public input because they're appointed and that's true. It does feel sort of out of, and that's a hard thing to grapple with, I think, but I think it's important to remember that the people that we elect have a say. And so if you want to have a say in who gets not only to the Supreme Court, but we really, really have to think about the lower courts because a ruling from a lower court judge, or that might not hold the binding precedent that a SCOTUS decision does. But these don't just matter because these are the judges that they play a role in what goes up to the Supreme Court. They play a role in what's allowed at the state level. This is not just about these nine people. And that's why local elections matter. That's why your elections for your state house reps matter. It sounds overwrought but vote. And it's tough to be like, this is what you can do because you can't go out and canvas against Amy Coney Barrett. I always take some comfort in educating people, which I'm probably really annoying, but I think educating people on the impact of the courts and the impact that elections have on the courts. And we don't need to really look further than the last four years to see what an election can do to the court. It is in many ways of public forum, these plaintiffs in the Fulton case, their families who had their rights trampled on by a group in the name of religious liberty, right? They're just regular families who were like, Hey, what the hell with all the darkness of these cases? I think that's something to remember; these cases aren't about politicians or, I mean, some of them are, you know, what we're seeing going on right now, but they're about the rights of regular people. And that means that you don't have to be in the Senate to take part in one, not advocating for people to let their cases in the Supreme Court, but we can be active members of our court system, whether it's through voting or staying informed or being advocates in our community for why the courts matter. I think they're all really important things to do. And also, to remember that it's a brand that's balanced by Congress. So we might not be able to say who gets appointed, but we might have a say in the legislation that is being decided the 15 week ban out of Mississippi, that ban out of Kentucky, that's legislation that elected officials decided on. And those elected officials were just that-- elected. So there are things we can do.

Jennie: It feels so unsatisfying in the court realm, but there is one thing that we know will be coming up is we can expect that Mitch McConnell is going to try and put through more Trump appointed judges in the lame duck, keep your eye out and make sure that you are calling your Congress people to stop more appointments of lower court judges during this lame duck session, because they will, I'm sure be terrible.

Caroline: Yeah. They all are. And that's the thing is even if you have a Senator who you think is liberal, yeah. They didn't get all those judges through on Mitch McConnell alone. We see that there are some conservatives who are they teeter a little bit. They're like, Oh, well, you know, I didn't vote for him or whatever, but your center left senators have to hear it. Don't think that because you live in a blue state or make it clear that, and again, I think it's hard to make the lower court sexy. SCOTUS is very, I mean, it's not sexy now, but the idea of SCOTUS is very sexy. It's like the ninth circuit doesn't like, instill excitement. I think a lot of people when they hear that term, these things really matter. So yeah, I think keep the pressure on your local officials to remember who they work for.

Jennie: Well, Caroline, thank you so much for being here today and for talking to us.

Caroline: Thank you for having me. It was a pleasure.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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