While much of the country was in an uproar over the nomination (and confirmation) of Brett Kavanaugh to the U.S. Supreme Court, anti-LGBTQ religious extremists in Texas filed a federal lawsuit against the city of Austin targeting its anti-discrimination ordinance protecting LGBTQ people, claiming it infringes on their religious liberty. Two days later, another anti-LGBTQ group in Texas filed a second, separate and even broader lawsuit attacking the Austin ordinance in state court.
Like many municipalities and less than half of U.S. states, Austin protects gay, lesbian, bisexual and transgender people broadly from discrimination in housing, employment and public accommodations. This has been the reality in many localities throughout the country going back several decades.
However, if the U.S. Supreme Court ― or individuals’ state Supreme Courts ― were to rule such laws in violation of “religious liberty,” hundreds of such laws protecting LGBTQ people across the United States could be wiped out.
The Supreme Court did, in fact, have a chance to do that earlier this year ― or to do the opposite and make it clear that LGBTQ people are constitutionally protected ― in its Masterpiece Cakeshop v. Colorado Civil Rights Commission decision. But it punted on either outcome. The court ruled for the baker on a technicality ― saying the particular baker’s religious beliefs weren’t respected, evidenced by comments made by two members of the Colorado Civil Rights Commission when it deemed the baker in violation of the law. The court did not, however, address the underpinnings of Colorado’s statute protecting LGBTQ people.
And while Justice Anthony Kennedy, writing for the majority, said that Colorado and ostensibly any other state or locality “can” protect LGBTQ people from discrimination, he and the court didn’t emphatically state that those protections are constitutionally guaranteed, leaving it for another case to decide the issue.
The optics of the case, however, were terrible ― seen as a victory for anti-LGBTQ extremists, no matter how narrow, and emboldening them moving forward.
With Kennedy gone, the Supreme Court could indeed clarify the issue when another case reaches it; and it could quite possibly be a very dark decision.
So on Oct. 6, as the Senate narrowly confirmed the hard-right Kavanaugh to replace Kennedy, the Houston-based U.S. Pastor’s Council, representing 25 churches, filed its lawsuit in federal court in Austin seeking to overturn the city’s employment protections based on sexual orientation and gender identity, claiming they violate the U.S. Constitution, the Texas Constitution and the Texas Religious Freedom Restoration Act.
The following Monday, as the national controversy surrounding Kavanaugh’s confirmation continued, Texas Values (a conservative Christian group) filed a separate and much broader lawsuit in state district court, claiming that Austin’s housing and employment protections for LGBTQ people violated the Texas Religious Restoration Freedom Act.
“I firmly believe they waited to file until [Kavanaugh] was confirmed,” Meghan Stabler, a noted Austin LGBTQ activist and former board member of the Human Rights Campaign, told me. She thinks the groups had been working on their respective filings for some time and coordinated their efforts. It’s “a clear indication of what is to come with regards to the religious liberty issue” and the high court, Stabler said.
“The anti-LGBTQ federal lawsuit filed in Texas this month, which could make its way to the Supreme Court via the Fifth Circuit, may find justices more open toward hearing it.”
“If this effort succeeds in the courts, it would be open season for discrimination against LGBT people not just in Texas, but across the country,” said Dan Quinn, communications director of the Texas Freedom Network, which has long battled both groups that filed the lawsuits.
“As far as Kavanaugh is concerned, this is exactly what a lot of progressives were concerned about in 2016,” he noted. “The right has been laser focused on the Supreme Court. It wouldn’t surprise me one bit if the folks who filed this against the city of Austin have [the Supreme Court] much in their thoughts moving forward.”
Quinn said the lawsuits are not about “religious freedom,” but rather an attempt at “sweeping away anti-discrimination protections that have been on the books for decades.”
The city of Austin plans to vigorously defend its ordinance in court, city spokesperson David Green reiterated to the Austin Statesman-American after the filing of the second lawsuit. And two legal observers told the Texas Tribune they weren’t worried about the lawsuits because neither presented an actual case of alleged infringement on religious freedom. One lawyer said the cases would “go nowhere.”
“In order to walk into court, you have to demonstrate some sort of injury,” Paul Castillo, senior staff attorney of LGBTQ legal group Lambda Legal, told the Tribune of the Pastors Council case. “It doesn’t appear that the city of Austin is enforcing or has enforced its anti-discrimination laws in a way that would infringe upon these religions.”
But in fact, a video production company filed a very similar lawsuit last year in Minnesota, and the case has gotten quite far. The company wanted to preemptively make sure it didn’t have to film same-sex weddings, even though no gay or lesbian couple had sought the company’s services.
The lawsuit was dismissed in federal district court, just as Texas legal observers believe the Texas lawsuits would be dismissed. But the Alliance Defending Freedom, the evangelical law firm representing the media company ― which also represented baker Jack Phillips, owner of Masterpiece Cakeshop ― appealed to the 8th U.S. Circuit Court of Appeals, which took the case (Telescope Media v. Lindsey) and heard oral arguments last Tuesday.
With a conservative George W. Bush appointee and an appointee of President Donald Trump on the three-judge panel, whose lines of questioning tipped their hands, that court “looks poised to use Telescope to hobble civil rights laws,” Mark Joseph Stern reported for Slate. Stern, who covers the courts and law, warned that “decades of precedent protecting Americans—including racial minorities—from discrimination could be in grave peril.”
As with abortion rights issues, the larger goal of anti-LGBTQ groups is to keep filing these kinds of lawsuits until they hit judges or justices who will help them score a win, overturning any precedent or narrowing previous Supreme Court rulings.
The road through Texas seems like a strategic decision. The lawsuits are two-pronged: One is challenging the law in state court, the other in federal court. If the very conservative and anti-LGBTQ Texas Supreme Court were to rule in favor of the religious extremists ― which doesn’t seem like a stretch ― Texas Freedom Network’s Dan Quinn speculated other states hostile to LGBTQ rights would move in the same direction. And one of these cases would eventually reach the federal courts ― and, ultimately, the U.S. Supreme Court.
The federal lawsuit, meanwhile, could find its way to the Supreme Court via the 5th U.S. Circuit Court of Appeals, which turned away a challenge by LGBTQ advocates to Mississippi’s broad and discriminatory Religious Freedom Restoration Act in 2017, ironically ruling that the groups filing the suit didn’t have standing and that any challenge would have to be by someone claiming discrimination.
That law, viewed by many legal advocates as among the most discriminatory anti-LGBTQ laws ever passed, allows businesses that offer wedding-related services to refuse them to LGBTQ people and allows religious groups to discriminate in employment and housing. It allows adoption and foster agencies to discriminate against gay and lesbian couples. And it even allows doctors and mental health counselors to turn away LGBTQ people simply based on the practitioners’ religious beliefs.
A federal district court judge in Mississippi blocked the law from going into effect in 2016, deeming it unconstitutional. But the 5th Circuit reversed the decision. Two judges on the court strongly dissented, rightly arguing that simply having such extreme laws on the books promotes discrimination, period. The “stigmatic harm that flows from the enactment of a law or adoption of official policy that deems a non-adherent plaintiff an ‘outsider’ in his own community,” Judge James L. Dennis wrote, “is sufficient to confer standing.”
LGBTQ advocates then appealed the decision to the Supreme Court, which, in January of 2018 ― with Kennedy still on the court ― jarred advocates when it refused to hear the case, letting the horrendous Mississippi law stand.
The anti-LGBTQ federal lawsuit filed in Texas this month, which could make its way to the Supreme Court via the 5th Circuit, may find justices more open to hearing it. No matter what happens in the lower courts, the Supreme Court might decide to take it, just as it might decide to take the Telescope Media case ― and then hand down a devastating decision.
Neil Gorsuch is a religious liberty crusader who is chomping at the bit, waiting for such a case. His past writings and a dissenting opinion on the court last year have made that clear. And Kavanaugh’s own record and his responses to questions about marriage equality during his confirmation hearings ― not to mention the partisanship and anger at “the left” he displayed during the hearing on the sexual assault allegations against him ― show that he can’t be relied upon to be a swing vote to protect LGBTQ rights.
The Texas lawsuits could also be timed to galvanize religious conservatives, as the Texas legislature is set to meet next year. Conservative legislators have promised to introduce anti-LGBTQ bills, as they have in every session of the recent past.
But with Kavanaugh on the Supreme Court, the timing of the suits ― filed as he was confirmed and sworn in as a justice ― should also be a blaring siren for everyone who cares about civil rights for LGBTQ people.
Michelangelo Signorile is an editor-at-large for HuffPost. Follow him on Twitter at @msignorile.