By James Esseks, Director, National LGBTQ & HIV Project

Today the Supreme Court issued a narrow ruling that one taxpayer-funded religious agency in Philadelphia has a right to renew its contract to provide foster care services to the city, despite its unwillingness to comply with the city’s non-discrimination requirement, because the city’s contract had a mechanism for allowing individualized exceptions to its non-discrimination policy that it did not grant to that agency. Importantly, the court did not rule (as the agency asked) that there is a constitutional right for government contractors such as the foster care agency to discriminate in their work for the city based on religious beliefs. This means that governments can and should continue to enforce their non-discrimination laws in all contexts.

The ruling comes in Fulton v. Philadelphia, in which the city of Philadelphia refused to renew a contract with Catholic Social Services, an agency that the city had hired to evaluate prospective foster parents, when the city discovered that CSS was unwilling to approve same-sex couples, in violation of the city’s non-discrimination requirement. CSS then sued, arguing that it had a constitutional right to change the terms of its contract with the city because of CSS’ religious objection to complying with the city’s non-discrimination rule. CSS also argued that Philadelphia’s decision not to renew CSS’ contract was unconstitutional because the city didn’t enforce its non-discrimination rule uniformly, but instead had the discretion to allow individualized exemptions that it refused to extend to CSS.

The ACLU represents two organizations, the Support Center for Child Advocates and Philadelphia Family Pride, that intervened in the case to help the city defend its non-discrimination policy that applies to government services contractors.

The Supreme Court ruled for CSS, but on the ground that its policy was not even-handed, not on the right to discriminate ground. The Fulton ruling is therefore somewhat akin to the Supreme Court’s 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a bakery claimed a right to refuse to sell a cake to a same-sex couple for their wedding. In Masterpiece, as in Fulton, the court issued a narrow opinion that avoided the right to discriminate issue and instead ruled that the government agency involved — in Masterpiece it was the Colorado Civil Rights Commission — had made anti-religious comments at an early hearing in the case. That violated the Constitution and meant that the commission’s judgment against the bakery had to be overturned. In Fulton, the court once more ruled for the religious plaintiff on narrow grounds and refused to create a constitutional right to discriminate.

Since Masterpiece, in a series of cases, anti-LGBTQ advocates have tried to get courts to rule that businesses, health care providers, employers, and government contractors all have a constitutional right to discriminate because of their religious objection to LGBTQ people.

Today’s ruling in Fulton is now the second time that the court has refused to do so, although anti-LGBTQ advocates continue to pursue other cases in an effort to tee this issue up for the high court. And we know any loss — even this narrow one — will be painful to the LGBTQ community, particularly in the wake of a record number of anti-LGBTQ bills moving in state legislatures this year.

The legal fight about whether, and in what context, the Constitution gives some people a right to discriminate is one of the most important legal issues for the LGBTQ community. It has consequences for how every single non-discrimination law and regulation operates, and could allow all of the civil rights laws that our community struggled for decades to establish to be undermined and side-stepped and ultimately rendered close to irrelevant. It could also result in discrimination not just against LGBTQ people, but against religious minorities, people of color, people with disabilities, and all women. Similar claims of a constitutional right to discriminate have been made in the context of foster care agencies that exclude prospective families that do not share their faith, including the largest state-contracted foster care agency in South Carolina, which accepts only evangelical Protestants and has turned away Catholic and Jewish families.

This is not the first time that people have asserted a constitutional right to discriminate in violation of civil rights laws, but courts have repeatedly rejected the claim. In the 1980s, religious schools were sued for paying women less than men who did the exact same job. They sought to defend the discrimination by saying that their religion required them to treat men and women differently, and that it would violate their freedom of religion to apply the civil rights law to them. The courts had no trouble rejecting their argument. Back in the 1960s, a South Carolina restaurant was sued for serving Black customers only through a side door, while white customers could come inside and be served. When the restaurant tried to defend against a civil rights suit by saying that its religion required the discrimination and that applying the non-discrimination rule would violate their religious freedom, the Supreme Court called the argument “patently frivolous.”

Nothing in today’s Fulton decision suggests that a constitutional right to discriminate that the court has rejected in other contexts exists in the context of anti-LGBTQ discrimination. So governments can and should still enforce their non-discrimination laws.

By Emily Dindial, National Advocacy and Policy Counsel & Nicole Zayas Fortier, National Policy Counsel

Last week, Nevada Gov. Steve Sisolak signed into law a bill to decriminalize minor traffic violations. This move will ensure all traffic tickets no longer lead to warrants and incarceration for people who cannot afford to pay fines and fees imposed on them for simple traffic infractions, like speeding and driving with a broken tail light. While this victory means that Nevada is now leaving behind 12 states that continue the practice of treating every single traffic code violation as a crime, the national practice of raising revenue from residents’ wallets by imposing vast fines and fees for other traffic infractions and low-level offenses remains widespread. The result: over-criminalization and over-policing for profit across the country.

It’s not cheap running our country. In 2018, state and local governments spent about $3.67 trillion. The federal government spent $3.8 trillion. Elected officials face daunting tasks when balancing governmental checkbooks, facing increasing debts and angry constituents who demand lower taxes but more local support simultaneously. Other government actors also feel pressure as their budgets get tighter — especially in the overburdened criminal legal system as it contends with the financial consequences of mass incarceration. For example, local courts with declining funds must still process the ever-increasing cases coming through their doors, and local jails must afford to house all the people sent their way by police and courts. That’s when these stakeholders start getting creative: enter the monstrous system of fines and fees.

Government actors use fines and fees to attempt to offset the costs of their operations, and threaten strict penalties for not paying up. Through it, the criminal legal system relies heavily on collecting money from the very people targeted by the system. When people can’t pay, they face mounting penalties: more fines and fees, driver’s license suspensions, longer terms of probation, and even arrests and incarceration. If someone is then caught driving when their license is suspended or breaking a probation rule, they face arrest and incarceration again. Police are then charged by the courts to enforce these punishments, acting as debt collectors on behalf of the state and giving them a reason to target people the system has already harmed. Thus, these penalties inextricably link fines and fees to over-policing, criminalization, and mass incarceration.

The human toll is devastating, often sparked by small infractions. In a recently published ACLU report, one person interviewed on how fines and fees impacted them said it all started with a $175 fine for illegally tinted windows. After additional court fees were added to that ticket, he owed over $1,000. When he couldn’t afford to pay, he lost his driver’s license, faced arrest warrants, incarceration, and additional fines and fees amounting to thousands of dollars. As a result, he lost his job and health insurance, his credit score declined, he was hospitalized multiple times for anxiety attacks, and he still struggles five years later when deciding whether to pay this debt or buy food. His experience is typical for millions of people who cannot afford to pay their tickets.

Without intervention, the fees and fines system will continue to spin out of control. One recent study estimated that judges have the choice of whether to impose a fee or fine in well over 30 million low-level cases per year — not even including traffic cases. Courts already take advantage of this option often — the percentage of people convicted in the U.S. who received court-ordered fines grew from 25 percent to 66 percent from 1991 to 2004. The amounts charged snowball, making it impossible for some people to afford paying them off. In 2019, the Federal Reserve reported that 6 percent of adults had outstanding legal or court debt. But this doesn’t impact everyone equally — Black adults (12 percent) and Latinx adults (9 percent) are more likely to have these debts than white adults (5 percent). The more people that cannot afford to pay and are punished with police intervention and time behind bars, the less money these local governments make as they spend significantly more to enforce the debt than they will receive.

Now is the time to stop balancing budgets through ticketing. Nevada’s latest reform is a significant step in that direction: Decriminalizing minor traffic offenses so that nonpayment cannot result in warrants for arrest will decrease policing for profit and debtor’s prisons. It will also alleviate police, court, and incarceration costs across the state.

But this is only the first step — all state legislatures should pass laws to:

• Decriminalize all low-level offenses, including but not limited to traffic violations
• Remove fees as an option for local stakeholders to impose on remaining offenses
• Make fines more affordable and equitable by considering a person’s income
• Require proportionality of a fine compared to the offense
• Ban police from enforcing payments, thereby reducing unnecessary police contact
• End warrants and penalties for failure to pay

The system of fines and fees to collect revenue for local governments is broken. It pulls people into lifetime cycles of debt and incarceration. Courts and other public services should be fully funded through tax dollars, not through predatory fees and over-policing. The criminal legal system’s solution to tighter budgets must instead be a resounding rejection of mass incarceration tactics that only increase the number of people in the system, how long they are there, and the costs to keep them behind bars and under supervision. It’s time for us to let our governments know our demand: No more taxation through citation.

This week the U.S. Supreme Court is scheduled to consider taking up the case of Cates v. Stroud. The case illustrates the failures of qualified immunity incredibly well, and the ACLU of Nevada and colleague organizations filed a friend of the court brief urging the Supreme Court to grant the case a hearing.

In Feb. 2017, Tina Cates went to visit her boyfriend at High Desert State Prison. According to court documents, the couple had been friends for nearly 20 years, and she had been visiting him once a week for several months.

That time however, the Las Vegas woman was approached by investigators with the Nevada Department of Corrections and told to follow them without explanation. She was taken into a restroom and told to strip naked. She was told to take out her tampon. She was told to bend over and spread her cheeks.

She complied because she didn’t know she could refuse.

Strip searches are humiliatingly intrusive and dehumanizing. Nevada Department of Corrections’ policies recognize this: Before conducting a strip search of any visitors, they are to tell the visitor they have the option to refuse to be searched. Every NDOC employee who conducts searches is required to know this policy.

The Fourth Amendment also prohibits warrantless searches without consent. The Ninth Circuit ruled that Cates’ Fourth Amendment rights had been violated. But here’s the rub: The court ruled the Department of Corrections staff named in the lawsuit could not be held accountable — even though they violated NDOC policies and Cates’ rights — because of qualified immunity.

SCOTUS has not taken any action on the petition for an appeal, but Nevada needs the court to review qualified immunity.

The actions of the Nevada Department of Corrections that this case brought to light are certainly shocking. Investigators violated a woman’s constitutional rights with a dehumanizing strip search, never presented a warrant, didn’t find any contraband, and banned her from future visits anyway.

But there is also a deeper question that Nevada needs addressed. If there’s no state-level mechanisms for addressing civil rights abuses, and the federal courts won’t do it because of qualified immunity, how does our community protect their constitutional rights?

There aren’t any adequate avenues in our state law to pursue claims of civil rights violations, yet Nevada statutes grant many, many protections to police and corrections officers — even more protections than people facing the loss of their liberty because they’ve been charged with a crime. And these are government actors for whom civil rights violations can mean dehumanization or even death.

Qualified immunity was originally intended only for good faith actors, but the standards have drifted over time and pushed accountability even further out of reach. Here we have NDOC staff violating the agency’s own regulations and a court ruling that violated a woman’s constitutional rights — but still the officers are shielded under qualified immunity.

The qualified immunity doctrine is broken, and something needs to be done about it. Nevadans deserve processes for accountability that work.