Still reeling from the last Supreme Court term, in which the Court dismantled almost 50 years of abortion protections under Roe v. Wade; required taxpayer funding of religious education, and approved religious worship activity by public school employees while in their official roles; inflated individual rights of gun possession, expanding on the prior, mistaken reading of the Second Amendment; and issued other radical, deeply partisan, and legally unsound decisions, we are now entering a new Supreme Court term that could again have serious ramifications for the LGBTQ+ community and people living with HIV and beyond. With issues such as free and fair elections, religious refusals, and race-conscious college admissions policies before the Court this term, this nation’s democracy, and our individual freedoms, hang in the balance.
At Lambda Legal, we are on high alert after watching the Supreme Court provide ahistorical readings of American history and bizarre modes of legal analysis that exclude women, people of color, LGBTQ+ people, and others from equal protection. It’s clear: Radically conservative Justices have eroded public confidence in our nation’s highest court and present a threat to the rights and liberties of the public and our democratic system of government. We cannot afford to ignore what happens at the Supreme Court. Our lives and our families depend on it.
Here are six Supreme Court cases to have on your radar this term:
303 Creative LLC v. Elenis: While four years ago, the Supreme Court declined to grant a Colorado baker who refused to make a wedding cake for a same-sex couple a broad religious exemption from state antidiscrimination laws, they will hear a similar case involving a Denver-based company that wishes to offer wedding website design services to members of the public, but to refuse those services to same-sex couples. The owner, Lori Smith, also wants to post a message on her site explaining her discriminatory stance. Both actions would violate Colorado’s law that prohibits businesses that are open to the public from discriminating against LGBTQ+ people or announcing their intent to do so.
What’s at stake?: Similar to Masterpiece Cakeshop v. Colorado Civil Rights Commission, this case raises the question of whether nondiscrimination laws can be circumvented by businesses’ claims that being required to treat all customers equally violates their right of expression. It’s clear that these types of lawsuits are aimed at chipping away at hard-won civil rights secured for LGBTQ+ people and their families. We filed an amicus brief, arguing that the Supreme Court should continue its longstanding refusal to create First Amendment exemptions to anti-discrimination laws. Forcing LGBTQ+ people to just “go elsewhere” for their goods and services is not only often impossible but completely undermines the purpose of public accommodations laws, not just for LGBTQ+ people, but for everyone those laws protect. If the Court rules in favor of 303 Creative LLC, it’s likely that any business that provides goods or services of a creative or artistic nature would be allowed to turn LGBTQ+ people away if creating something for them violates the owner’s personal beliefs.
Read our amicus brief here.
Also on our radar: An Oregon baker has asked the Court to review her case, too, hoping the Court will grant broad exemptions based on both religion and expression. Lambda Legal has long represented Rachel and Laurel Bowman-Cryer, the same-sex couple she turned away. Stay tuned for updates.
303 Creative LLC v. Elenis has not yet been scheduled for oral argument.
Merrill v. Milligan: This case, which was consolidated with Merrill v. Caster, addresses a challenge to the congressional redistricting plan that Alabama’s Republican legislature set in place after the 2020 census. The state’s new gerrymandered maps would essentially give African-Americans—who account for 27 percent of Alabama’s population—the likelihood of electing only 14 percent of the state’s congressional delegation. In 2021, three federal judges—including two appointed by Trump—found that this remapping was illegal and violated Section 2 of the Voting Rights Act, which prohibits race discrimination in elections.
However, those who support the biased maps asked the Court to ignore the lower court’s ruling and leave the gerrymandered maps in place for the 2022 election, and in a 5-4 decision, the Supreme Court granted the request. This term, the Court will decide whether to make the maps permanent, or at least until the next redistricting cycle in 2031.
What’s at stake?: Free and fair elections are at stake. Alabama’s congressional maps are racist. They are designed to disempower and marginalize Black voters and make it difficult for Black communities to elect leaders that represent their interests. If the Court allows the congressional maps in question to stand, it will make it easier for state legislatures to design similar maps and rob Black and brown communities of representation in their governments.
Merrill v. Milligan is scheduled for oral argument on Tuesday, October 4, 2022.
Moore v. Harper: In another gerrymandering-related case, the Supreme Court will decide whether North Carolina’s Supreme Court has the authority to overturn its legislature’s illegally gerrymandered congressional map for violating the state’s Constitution. Last year, the mostly GOP-run state legislature created an extreme partisan map favoring Republicans in as many as ten of the state’s fourteen congressional districts, in blatant disregard of the actual population makeup of the state. Democratic voters sued, and the North Carolina Supreme Court struck down the map as a violation of the state constitution. But Republican proponents of the biased map have challenged the state Supreme Court’s authority to even consider the map. They argue that the U.S. Constitution grants state legislatures exclusive authority over federal elections, claiming that state courts are powerless in issues related to federal elections—a theory that has been previously rejected.
What’s at stake?: If the Supreme Court rules in favor of the state legislators, no state laws or constitutional provisions protecting voters could ever be enforced against state legislators’ gerrymandering. It would give the most partisan efforts to control federal elections a free pass to disenfranchise voters of the minority parties or populations, not only in congressional races but in choosing electors for presidential races. It would bar elections commissions or secretaries of state from taking action to safeguard voters and would leave federal courts as the only venue to review claims of gerrymandering or voter suppression. Most concerning, it likely would allow state legislators who are dissatisfied with how state elections officials are running an election to refuse to certify the results and instead to choose their own slate of electors—the very thing allies of former President Trump attempted to do after losing the presidential election in 2020.
Moore v. Harper has not yet been scheduled for oral argument.
Student for Fair Admissions, Inc., v. President & Fellows of Harvard College and Students for Fair Admission v. the University of North Carolina (consolidated): Thanks to the Court’s 2003 decision in Grutter v. Bollinger, the University of Michigan and other colleges and universities have been able to continue considering race as a factor—a small one—in their admissions processes to ensure diversity. But now, with these two cases, race-conscious admissions policies are back on the docket, with the goal of overturning Grutter and barring any consideration of race by either public or private colleges or universities.
In addition to whether schools may consider race as a factor in admissions, the Court is asked to decide if a university may reject a race-neutral alternative process because it would change the composition of the student body—specifically, by reducing diversity—without providing proof that the alternative would dramatically impact academic quality or that student-body diversity has educational benefits.
What’s at stake?: The Court has allowed universities to consider race as one part of their admissions policies for decades, in recognition of the need to ensure equal educational opportunity and to emphasize the importance of racial diversity. The Court’s willingness to hear these cases signals eagerness by at least some justices to overturn these established precedents. We joined an amicus brief emphasizing that barring schools from considering race at all results in a less racially diverse student body, which is necessary to counter harmful stereotypes, foster the exchange of ideas, and prepare students for a diverse society. The inclusion of people of color, including those with overlapping LGBTQ+, immigrant, disabled, or other identities, is essential to creating educational settings that embody the benefits of diversity.
Read our amicus brief here.
Students for Fair Admissions, Inc., v. President & Fellows of Harvard College and Students for Fair Admission v. the University of North Carolina are scheduled for oral argument on Monday, October 31, 2022.
Health and Hospital Corporation of Marion County, Indiana v. Talevski: This case continues the trend of asking the Court to limit the remedies available to people harmed by recipients of federal funding, including last term’s ruling in Cummings v. Premier Rehab Keller LLC, which held that no emotional distress damages are available in such cases. Although this case is specifically about whether the family of a patient can sue when a state-run nursing home receiving Medicaid funding violated his rights under the Federal Nursing Home Reform Act, it asks the Court to reconsider long-standing precedent affirming the underlying principle that private parties can enforce rights established in laws enacted under Congress’s Spending Clause authority through Section 1983, the civil rights enforcement statute.
What’s at stake?: Many laws protecting LGBTQ+ people from discrimination are Spending Clause statutes, that is, federal laws authorized by Congress’s power to allocate funding. These laws include the Rehabilitation Act (barring discrimination based on disability in federal agency employment and programs, federally funded programs, and federal contractors’ employment practices), Title IX (barring discrimination based on sex, including sexual orientation and transgender status, in educational institutions and activities that receive federal funding), Title VI (barring discrimination based on race, color, and national origin in federally funded programs or activities), and Section 1557 of the Affordable Care Act (barring discrimination based on all of these factors plus age in federally funded health care programs or activities). A ruling that private individuals cannot sue under Section 1983 when their rights are violated by a federally funded entity would remove a major source of protection. More narrowly, a ruling that individuals cannot sue to enforce the Federal Nursing Home Reform Act would deprive LGBTQ+ older adults of an important tool to vindicate their rights in long term care settings.
Health and Hospital Corporation of Marion County, Indiana v. Talevski is scheduled for oral argument on Wednesday, November 9, 2022.
Haaland v . Brackeen, et al.: The Court will hear four cases challenging the constitutionality of U.S. laws created in response to the historical attacks on Indigenous culture and gross mistreatment of American Indians. Specifically, the 1978 Indian Child Welfare Act (ICWA) was meant to prevent the removal of Indigenous children from their homes, families, peoples, and cultures.
ICWA establishes a preference that American Indian and Alaska Native (AI/AN) children removed from their families be placed with extended family members or in Native foster homes. The plaintiffs in these cases—which include non-Native families who have adopted AI/AN children, and three Republican states— argue that ICWA’s requirements unconstitutionally impose duties on the states and violate Equal Protection.
What’s at stake?: If the Court rules that ICWA is unconstitutional, it will open the door to indiscriminate removals of Native children from their families and their culture. This threatens the very existence of Native tribes who will be robbed of their future generations. The elimination of ICWA protections would also exacerbate existing harms for LGBTQ+ AI/AN youth by increasing the likelihood they are placed away from their family, community, and culture while in care and if adopted out of care. There is no nationwide data regarding the prevalence of LGBTQ+ AI/AN youth in the foster care system, but numerous studies show that both LGBTQ+ youth and AI/AN youth are overrepresented in the system and suffer disproportionately from a wide range of negative outcomes because of their system involvement compared to their non-LGBTQ+ and non-indigenous peers. Given these data, it is likely that LGBTQ+ AI/AN youth are at especially high risk of harm while in care, and a loss of ICWA protections would only aggravate those harms.
Haaland v . Brackeen, et al. is scheduled for oral argument on Wednesday, November 9, 2022.
As the Supreme Court embarks on this new term, we want to stress the importance of not just keeping an eye on these cases, but understanding that we may be watching our democracy crumble in real-time. In order for democracy to remain intact, we need a judicial system that is non-ideological to ensure fairness and impartiality and make good on the constitutional promise of equal access to justice for all. But in reality, that is not the Supreme Court we currently have, given their demonstrated disregard for legal precedent and apparent loyalty to an extreme far-right conservative agenda rather than to the Constitution.
Whatever the outcomes of the cases above may be, restoring the integrity of our democracy and protecting our civil rights requires court reform. Lambda Legal is calling for immediate, essential reforms of the U.S. Supreme Court, including adding four more seats to match the number of federal Circuit Courts of Appeals and adopting an enforceable ethics code for Supreme Court Justices. Expansion of the lower federal courts to better manage the burden of today’s caseloads and reforming the Senate’s filibuster to allow votes on these proposals also are essential steps.
Unless faith is restored in the Supreme Court and the rest of the federal judiciary through court reform, our legal system will remain dangerously out of balance with our civil rights and other protections at risk of being taken away. Our families, our relationships, our self-determination, our privacy, and our very identities are all under threat. Now is the time to act.
Want to learn more about court reform and what you can do? Read this.