The American Bar Association filed two amicus briefs in mid-August, asking the U.S. Supreme Court in separate cases to affirm long-standing principles in civil rights law as they apply to sexual orientation and uphold a 44-year-old federal law intended to protect against the separation of Native American families.
On August 19, the ABA asked the justices to affirm lower court decisions that private businesses cannot rely on the First Amendment to claim a right to be exempt from state public-accommodation laws barring discrimination against would-be customers based on sexual orientation. The case involves a Colorado marketing and graphics firm, which contends that a public-accommodation law compelling it and its employees to provide service to gay clients violates the free speech clause of the First Amendment.
The case addresses free speech questions left unresolved by the Supreme Court’s 2018 decision in the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which the court ruled on narrow grounds that the Colorado agency did not employ religious neutrality in its handling of the case, violating the owner’s rights.
In the current case, the ABA brief outlines numerous ABA policies against discrimination based on sexual orientation adopted since 1973. It also traces a half century of Supreme Court decisions rejecting challenges to public-accommodation laws based on personal beliefs that conflict with those laws, including the high court’s Heart of Atlanta Motel decision in 1964 that required private businesses to abide by the Civil Rights Act of 1964.
In the second brief, the ABA urged on August 18 that the court uphold the constitutionality of the Indian Child Welfare Act (ICWA), which sets minimum standards for the removal of Native American children from their families and creates a preference that they be placed with extended family or in Native foster homes when they are removed. A federal appeals court struck down parts of the law, holding they violated the 10th Amendment by impermissibly commandeering the states.
In four consolidated cases, the ABA brief asks the Supreme Court to uphold the ICWA, asserting that child placement proceedings are not the exclusive province of the states because the federal government has long played a role in child welfare cases, particularly on Native American lands, and that the ICWA builds on existing child welfare laws.
The cases will be heard by the Supreme Court in its new term, which begins October 3.
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