U.S. Supreme Court. Credit: Mike Scarcella / NLJ

After the U.S. Supreme Court's historic decision barring employers from firing workers based on their sexual orientation or gender identity, a series of cases pending before the justices asks them again to confront discrimination against LGBT individuals.

On Monday, the justices formally requested the views of the U.S. solicitor general in a case brought by Texas against what it calls California's "blacklisting" of states with certain laws allowing discrimination against LGBT persons. The court also has set oral arguments for next term in the case Fulton v. City of Philadelphia. That dispute centers on the city's anti-discrimination rules regarding foster care services.

The two disputes, and others, including one where a court clerk refused to grant a marriage certificate for a same-sex couple, raise questions involving the intersection of religion and anti-discrimination laws, an issue left unresolved by the justices' decision in Bostock v. Clayton County, Georgia, and their application of Title VII's anti-discrimination bar to protect gay, lesbian and transsexual workers.

"If the question in the workplace discrimination cases brought by Aimee Stephens, Donald Zarda, and Gerald Bostock was what the law means, the question in these next cases is when and whether the law matters," Rose Saxe, deputy director of the ACLU's LGBT & HIV Project, said in a blog post Wednesday. The win for LGBT rights in the workplace, Saxe continued, "is fragile and will be eroded if the court furthers the agenda of the Trump administration by giving anyone who objects on religious grounds a free pass to violate the law."

In the Texas case, the state challenges a California law that prohibits California agencies from approving state-funded or state-sponsored travel to a state that, after June 26, 2015—when the U.S. Supreme Court ruled in support of gay marriage—enacted a law that authorizes or requires discrimination on the basis of sexual orientation, gender identify or gender expression.

The California attorney general is required to keep a list of states whose actions trigger the restriction on state-funded travel. Eleven states are on the California list, according to briefs filed in the case. Texas was included because of a state law that protects foster-care or adoption agencies that discriminate—for religious reasons—on the basis of sexual orientation or gender identity.

Texas, represented by state solicitor general Kyle Hawkins, has argued the California law was born of religious animus and violates the privileges and immunities, interstate commerce and equal protection clauses. California deputy solicitor general Samuel Harbourt countered that the law does not bar any commerce or prohibit any travel into or out of California; it instead limits what out-of-state travel California will pay for. "A state's control over its own public fisc is a core aspect of state sovereignty," Harbourt wrote in urging the justices to reject original jurisdiction over the dispute.

In the Philadelphia case, Catholic Social Services and several foster parents challenge the city's policy of barring referrals of foster children to that agency because it refuses, for religious reasons, to license same-sex couples as foster parents. They argue the city's policy violates their First Amendment free exercise and free speech rights.

The petition also urges the justices to revisit their 1990 ruling in Employment Division v. Smith. In that ruling, Justice Antonin Scalia, writing for the majority, said the free exercise right does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.

Mark Rienzi of The Becket Fund for Religious Liberty is representing the challengers to the city's policy. Gupta Wessler partner Deepak Gupta is counsel to the city. The ACLU's Leslie Cooper represents intervenor-respondents Support Center for Child Advocates and Philadelphia Family Pride.

More than 30 amicus briefs supporting the challengers have been filed by the Trump administration, religious and conservative organizations as well as a number of states. Amicus briefs supporting the city are not yet due. No date has been announced yet for the arguments.

Jeffrey Harris, a Consovoy McCarthy partner. Credit: Diego M. Radzinschi/ ALM

In March, Dignity Health, a Catholic hospital represented by Consovoy McCarthy partner Jeffrey Harris, filed a petition asking the justices to review a California Court of Appeal decision that rejected its First Amendment defenses to a lawsuit brought under the California Unruh Civil Rights Act. Evan Minton sued the hospital because it refused to perform an elective sterilization procedure.

In the petition, Harris argues that performing the procedure was prohibited by ethical and religious directives that govern Catholic health care institutions. The state court, he wrote in the petition, relied on the U.S. Supreme Court's decision in Employment Division v. Smith. If the justices do not grant review outright, Harris added, they should hold the petition pending their decision in the Fulton case.

A response to the hospital petition is not due until July 15. Minton is represented by the ACLU's Amanda Goad.

The court also has a petition that mixes religious beliefs, same-sex marriage and qualified immunity. In that case, Kim Davis, a Kentucky county clerk, refused to issue marriage licenses to same-sex couples after the Supreme Court's landmark same-sex marriage ruling in 2015, Obergefell v. Hodges.

Two same-sex couples sued for damages against Davis, former clerk of Rowan County, Kentucky, when she refused, for religious reasons, to issue any marriage licenses under her name and authority following the justices' 2015 decision. The U.S. Court of Appeals for the Sixth Circuit rejected her arguments that she was entitled to qualified immunity.

"This case has always been about whether the law forces an 'all or nothing' choice between same-sex marriage on the one hand, and religious liberty on the other, with no regard whatsoever for any reasonable accommodation," Davis' lawyer, Mathew Staver of Liberty Counsel, wrote in the case Davis v. Ermold.

But the case does not involve whether people of good conscience may disagree with the justices' same-sex marriage decision or whether private businesses can refuse to provide goods or services in connection with same-sex marriages, Adam Pulver of Public Citizen Litigation Group countered.

"The straightforward issue in this case is whether, after Obergefell, it was clearly established that a state official cannot deprive citizens of their right to marry based solely on personal disapproval of same-sex marriage," Pulver told the justices. "Thus, the allegations that Petitioner Kim Davis denied respondents marriage licenses solely because of her personal opposition to same-sex marriage—even after a district court and the Sixth Circuit told her she could not do so—support a denial of qualified immunity."

Human Rights Campaign delivered an amicus brief in support of equality and gay couples in the case "Masterpiece Cakeshop v. Colorado Civil Rights Commission," on Oct. 30, 2017. Credit: Diego M. Radzinschi / ALM

And lingering on the court's docket for nearly a year is the return of Arlene's Flowers v. Washington in which a floral designer, citing her religious beliefs, refused to create a floral arrangement for a same-sex wedding.

In June 2018, the justices granted Arlene's Flowers first petition, vacated the judgment of the Washington Supreme Court and remanded the case for further consideration in light of the justices's ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The latter case involved a baker who refused on religious grounds to make a wedding cake for a same-sex couple. Both cases involved state anti-discrimination laws.

In June 2019, the Washington Supreme Court again rejected free speech and free exercise arguments by Arlene's Flowers.

Governments "across the country have continued to slur, shun, punish, and threaten to imprison those whose faith compels them to honor their religious beliefs about marriage," wrote Arlene's Flowers counsel Kristen Waggoner of Alliance Defending Freedom in the latest petition.

The state supreme court "fully embraced" the Masterpiece Cakeshop ruling and call for respect for sincere religious beliefs and for gay persons seeking goods and services in an open market, countered state solicitor general Noah Purcell. "The court carefully reviewed and reconsidered its prior decision in light of this principle, ultimately reaffirming the trial court in a unanimous decision," he wrote in urging the justices to deny review.

The ACLU's Ria Tabacco Mar represents the gay couple in the case is also opposing review.