While much of the country was in an uproar over the nomination (and confirmation) of Brett Kavanaugh to the U.S. Supreme Court, anti-LGBTQ religious extremists in Texas filed a federal lawsuit against the city of Austin targeting its anti-discrimination ordinance protecting LGBTQ people, claiming it infringes on their religious liberty. Two days later, another anti-LGBTQ group in Texas filed a second, separate and even broader lawsuit attacking the Austin ordinance in state court.
Like many municipalities and less than half of U.S. states, Austin protects gay, lesbian, bisexual and transgender people broadly from discrimination in housing, employment and public accommodations. This has been the reality in many localities throughout the country going back several decades.
However, if the U.S. Supreme Court ― or individuals’ state Supreme Courts ― were to rule such laws in violation of “religious liberty,” hundreds of such laws protecting LGBTQ people across the United States could be wiped out.
The Supreme Court did, in fact, have a chance to do that earlier this year ― or to do the opposite and make it clear that LGBTQ people are constitutionally protected ― in its Masterpiece Cakeshop v. Colorado Civil Rights Commission decision. But it punted on either outcome. The court ruled for the baker on a technicality ― saying the particular baker’s religious beliefs weren’t respected, evidenced by comments made by two members of the Colorado Civil Rights Commission when it deemed the baker in violation of the law. The court did not, however, address the underpinnings of Colorado’s statute protecting LGBTQ people.
And while Justice Anthony Kennedy, writing for the majority, said that Colorado and ostensibly any other state or locality “can” protect LGBTQ people from discrimination, he and the court didn’t emphatically state that those protections are constitutionally guaranteed, leaving it for another case to decide the issue.
The optics of the case, however, were terrible ― seen as a victory for anti-LGBTQ extremists, no matter how narrow, and emboldening them moving forward.
With Kennedy gone, the Supreme Court could indeed clarify the issue when another case reaches it; and it could quite possibly be a very dark decision.
So on Oct. 6, as the Senate narrowly confirmed the hard-right Kavanaugh to replace Kennedy, the Houston-based U.S. Pastor’s Council, representing 25 churches, filed its lawsuit in federal court in Austin seeking to overturn the city’s employment protections based on sexual orientation and gender identity, claiming they violate the U.S. Constitution, the Texas Constitution and the Texas Religious Freedom Restoration Act.
The following Monday, as the national controversy surrounding Kavanaugh’s confirmation continued, Texas Values (a conservative Christian group) filed a separate and much broader lawsuit in state district court, claiming that Austin’s housing and employment protections for LGBTQ people violated the Texas Religious Restoration Freedom Act.
“I firmly believe they waited to file until [Kavanaugh] was confirmed,” Meghan Stabler, a noted Austin LGBTQ activist and former board member of the Human Rights Campaign, told me. She thinks the groups had been working on their respective filings for some time and coordinated their efforts. It’s “a clear indication of what is to come with regards to the religious liberty issue” and the high court, Stabler said.