Closing a Discriminatory Loophole

BY Advocate Contributors

June 28 2010 1:40 PM ET

The decision has even more important implications for LGBT rights,
however. The court’s analysis strongly supports the position that when
the government provides funding to private groups, it can require that
the recipient agree not to discriminate against LGBT people. This is
significant because for years, faith-based groups providing purely
secular social services funded by government contracts or grants have
maintained that they have a right to discriminate against LGBT people
despite receiving public funds. The court’s decision suggests that
faith-based grant recipients have no right to a special exemption from
nondiscrimination requirements.

Another aspect of the court’s decision is also likely to have an impact in a wide variety of LGBT rights cases. The court rejected CLS’s argument that it wasn’t discriminating on the basis of “sexual orientation” but was simply enforcing its view that sexual conduct should occur only in a marriage of two different-sex partners. This status-conduct distinction has been used for years by antigay forces to claim that laws and policies punishing same-sex conduct do not discriminate against gay people. The Supreme Court rejected the status-conduct distinction in 2003 when it invalidated a state sodomy law in Lawrence v. Texas, and it did so again in Monday’s opinion. The court’s decision will provide strong ammunition in challenges to laws that claim to regulate conduct but in fact discriminate against LGBT people, such as the military’s “don’t ask, don’t tell” policy.

Monday’s decision is a serious defeat for antigay groups that have been working aggressively to establish the radical proposition that antidiscrimination laws—particularly those that include sexual orientation — violate the First Amendment. At the same time, antigay groups have mounted an aggressive propaganda campaign, falsely claiming that basic equality protections pose a threat to freedom of speech and religion. The court’s holding Monday will help put a stop to those efforts to roll back crucial antidiscrimination protections for LGBT people.

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