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  • Victoria A. Brownworth

Obamacare, voting rights, LGBTQ rights mark Supreme Court’s final month

June 1, 2021 Philadelphia Gay News

The Supreme Court. (Photo: Scott Drake)

June marks the final month of the U.S. Supreme Court calendar. This is when all the most momentous and far-reaching cases are decided and often cataclysmic laws revealed. This term was delineated by the pandemic and a rushed confirmation of Amy Coney Barrett just days before Donald Trump was voted out of office.

Several cases with monumental impact on civil liberties and civil rights were argued earlier this term before the SCOTUS. In the run up to the congressional midterm elections, how the court rules on hot-button culture wars issues will bolster the right, regardless of outcome.

With three appointees of former President Donald Trump on the nine-member court — Neil Gorsuch, Brett Kavanaugh and Barrett — conservative Justices Samuel Alito and Clarence Thomas can propel five-justice majorities even without the vote of Chief Justice John Roberts, who is a sometime swing voter.

The Trump justices represent both a shift of ideology on the court and a shift of power. Where Roberts was once the deciding vote in a four-four split, now the chief has lost that edge. And since the death of Ruth Bader Ginsburg, only three liberal justices remain: Stephen Breyer, Sonia Sotomayor and Elana Kagan. Not enough to yield a victory without two conservatives crossing over — a scenario that has yet to occur.

The Affordable Care Act, also known as Obamacare, is before the court yet again. The law forces the private health insurance industry to cover a host of pre-existing conditions including the most common — diabetes, asthma, heart disease and HIV — as well as provide accessible, affordable health insurance plans through the healthcare marketplace.

The ACA also expanded Medicaid to cover working poor Americans.

But Republican-led legislatures like Pennsylvania’s, as well as the Republican governors of some states, want the court to invalidate former President Barack Obama’s most significant legislative achievement, which Joe Biden helped secure as Vice President.

This case will be the third challenge to the ACA since its inception in 2010 and could overturn the law altogether, leaving millions with no healthcare in the midst of the worst global pandemic in a century.

In one of his first acts as president, Biden informed the court that his administration was reversing the position taken by the Trump administration, which had proposed the case. Trump was intent on overturning the ACA. Roberts has sided with the liberals in the past on the ACA. But his vote would not be enough without another conservative like Kavanaugh, who sometimes votes with Roberts.

One of the pivotal culture wars cases for the court centers on Philadelphia and a Catholic foster care agency, with so-called religious liberty laws at its heart. The case of Fulton v. City of Philadelphia could have lasting — and cataclysmic — impact on LGBTQ civil liberties.

In recent years the SCOTUS has exhibited increasing latitude towards religious freedom, finding in favor of religious groups with regard to healthcare (Hobby Lobby) and lesbian and gay rights (Masterpiece Cake Shop). Now the new conservative majority has been highly focused on protecting religious rights under the Free Exercise Clause of the Constitution, assertively arguing for churches and other houses of worship during the pandemic.

Fulton was argued the day after the election and was the first case in which Barrett — with her long anti-LGBTQ history — participated. The case pivots on the City of Philadelphia freezing the contract of a Catholic foster agency because the agency refused to work with same-sex couples as potential foster parents. The agency, Catholic Social Services, sued under the First Amendment.

The City of Philadelphia argued that the agency violated anti-discrimination laws in the city that are applicable to everyone.

The LGBTQ rights argument is clear: the city froze the contract because an organization receiving taxpayer funds was turning away same-sex couples, violating anti-discrimination laws in the city.

The concern in this case is that if the court finds in favor of CSS, precedent then exists for religious organizations to get other exemptions from non-discrimination laws.

Conservatives argue that religious liberty is a foundational aspect of the Constitution and must be protected if the First Amendment is to have any real meaning.

Another major case is voting rights. With the notable exception of the pandemic, nothing has defined the past year more than voting rights issues. Pennsylvania was at the heart of the debate over voting regulations during the 2020 primary and general election.

That GOP fight against the outcome of the election is — incredibly — ongoing, with a third audit now being conducted in Arizona, the state at the locus of a voting rights case awaiting a SCOTUS ruling.

In this case the Democratic National Committee asserts that two provisions of an Arizona law violate the Voting Rights Act and put voting rights at risk. That law prohibits any other laws that cause or create racial discrimination in voting. This case parallels issues raised by the GOP-led Pennsylvania legislature and bills that are being considered.

At issue in the Arizona case is that one part of the state law requires in-person Election Day voters cast their votes in their assigned precinct. Another provision says that only certain persons — family, caregivers, mail carriers and elections officials — may deliver another person’s completed ballot to the polling place.

In 2013, Roberts wrote the majority opinion in a 5-4 decision in Shelby County v. Holder. Ginsburg wrote the dissent. That case vitiated Section 5 of the Voting Rights Act, which required federal preclearance before implementing any changes to state voting laws or practices.

So now the GOP target is Section 2 of the law, that holds that no voting regulation can be imposed that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”

The argument being made by Democrats is that a GOP intent on winning elections regardless of whether voting rights are abridged will weaken Section 2 of the Voting Rights Act to limit the rights of voters of color who represent 40% of the Democratic voting base.

Remaining major cases include so-called “dark money,” the sources of which conservatives want hidden. That case involves non-profits Americans for Prosperity (a Koch-affiliated group) and the Thomas More Law Center. Both challenge a California law requiring charitable organizations that solicit donations to disclose a list of their contributors to the state attorney general.

Also awaiting a ruling is a Fourth Amendment case related to warrants and when a police officer needs a warrant to enter the constitutional sanctity of an individual’s home. At issue is the question of “hot pursuit” — or whether there are circumstances in which it is acceptable to forgo a warrant.

The historic Bowers v. Hardwick sodomy law case initially hinged on this — whether there was a valid warrant to enter Michael Hardwick’s home unannounced and thus discovering him engaged in consensual sex with another man.

The rulings will be released over the next few weeks.

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