July 2, 2021

Advocates: SCOTUS decision emphasizes need for more LGBTQ protections

Laura Paskus

The U.S. Supreme Court.

The U.S. Supreme Court’s decision on Fulton v. the City of Philadelphia is not likely to a impact the New Mexico LGBTQ community, legal experts and advocates have said.

Fulton v. the City of Philadelphia asked the Supreme Court to decide if Catholic Social Services (CSS) could continue its contract with that city to help find foster families even though the city said it couldn’t because CSS discriminates against same sex couples in its fostering application. The Supreme Court heard the case last fall and when the U.S. Congress was considering Justice Amy Coney Barrett for nomination to the bench, members of the LGBTQ community in New Mexico worried that a more conservative bench could overturn precedent and allow discrimination, which in turn could have a ripple effect in New Mexico.

Related: U.S. Supreme Court could roll back LGBTQ equality

But, Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said the court’s decision in June was so narrow it would only apply to this particular case wouldn’t likely have an impact in New Mexico.

“I disagree with the finding but what the court said is, because the city contract contained a mechanism for offering individual discretion to the agencies, the court held the city could not refuse to extend the contract to Catholic Social Services,” she said.

Rushforth said the way the ruling was written is likely how the court was able to get a unanimous decision on this issue. The justices ruled 9-0 on the case.

She said she would not call this case “a win” but “it’s really important to understand it was not a case where religious entities have a license to discriminate.”

Marshall Martinez, executive director of Equality New Mexico, said the decision highlights the need to pass the federal Equality Act.

“It is a set of policies that prohibit discrimination based on sexual orientation and identity at the federal level,” Martinez said.

He said the best way to think of the federal Equality Act is that it would be a broad-based law that would be similar in scope to the landmark 1964 Civil Rights Act which prohibits discrimination on the basis of race, color, religion, sex or national origin. Currently, nondiscrimination laws protecting sexual orientation and sexual identity are currently a patchwork in some states, cities or counties, and not everyone is protected, Martinez said.

Rushforth said that when talking about human rights it’s worth noting that July 1 is the date the New Mexico Civil Rights Act became law, which ends qualified immunity as a legal defense when an individual’s civil rights have been violated.

Related: Guv signs New Mexico Civil Rights Act into law, ends qualified immunity

It also enables individuals whose constitutional rights have been violated to seek civil penalties, capped at $2 million and it will be up to the judge’s discretion to decide to also award lawyer’s fees.

The New Mexico Civil Rights Act is seen as a win for equal protections under the law by the bill’s supporters. The law was a response to George Floyd’s killing in June of 2020 by a police officer in Minnesota and the subsequent Black Lives Matter protests across the nation.  

Rushforth said there are two other cases the Supreme Court could take up in the 2021-2022 term that are worth watching for LGBTQ rights.

One is Minton v. Dignity Health. It involves a transgender man who was denied a hysterectomy from a hospital in California. The other is Ingersoll & Freed v. Arlene’s Flowers, Inc. In that case, a same sex couple tried to purchase a floral arrangement for their wedding in Washington but were denied because of the owner’s religious beliefs.

The Supreme Court decided Friday it would not hear Ingersoll & Freed v. Arlene’s Flowers, Inc., leaving in place a lower court’s ruling that Arlene’s Flowers’ refusal to sell to the same sex couple was unconstitutional.

Martinez said the Supreme Court decision emphasizes the need to amend the New Mexico Human Rights Act. An attempt to do so, sponsored by state Rep. Brittney Barreras, D-Albuquerque, was not heard by the Senate Judiciary Committee, and did not make it through the Legislature.

HB 192 would have amended the New Mexico Human Rights Act to include public bodies and state agencies. Currently, there is some debate about whether the New Mexico Human Rights Act makes it clear that educational institutions and other agencies are prohibited from discrimination.

“It does highlight the need for a fix at the state level,” Martinez said. 

Update: This story was updated Friday to add the new information that the U.S. Supreme Court announced it would not take up the Ingersoll & Freed v. Arlene Flower’s Inc. case.