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What Ginsburg’s Death Means for Upcoming Fights Against Sex Discrimination

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25.09.2020

The Washington Post/Getty

Just a few months ago, 86-year-old Supreme Court Justice Ruth Bader Ginsburg was deftly smacking down oral arguments by supporters of a Louisiana abortion restriction, demonstrating the meticulous approach to the law and women’s rights that had earned her canonical status among feminists. Since her death last Friday, the existential threat to reproductive rights from an expanded conservative majority on the court has come into sharp relief. Yet while access to abortion is a cornerstone of gender equality—”central to a woman’s life, to her dignity,” as Ginsburg put it in her confirmation hearings in 1993—it’s far from the only issue where her absence will be felt.

The broader fight against discrimination based on sex, which defined Ginsburg’s career prior to her appointment to the federal bench, remains riddled with unsettled legal questions, some of which will come before the Supreme Court in short order. “A lot is on the line,” says Emily Martin, vice president for education and workplace justice at the National Women’s Law Center. “There are a lot of active fights about what does the law mean when it prohibits sex discrimination, and who has to follow that law.”

Legal experts and gender justice litigators say one of the most immediate fights is a religious freedom case scheduled to be heard by the Supreme Court the day after the presidential election. The case, Fulton v. City of Philadelphia, began in 2018, after a Catholic foster care agency told a newspaper reporter it would not certify same-sex couples to be foster parents. In response, the city of Philadelphia stopped referring foster children to the agency, Catholic Social Services, which in turn sued the city. The agency, along with some foster families, argues that it has a First Amendment right to be exempt from local laws and contractual requirements that it not discriminate against people based on their sexual orientation.

The outcome of the case could affect the ability of same-sex couples to become foster parents, and children to find foster homes, anywhere local governments contract with religious agencies for foster care services. But depending how the court rules, its effects could also be far broader—potentially weakening anti-discrimination laws across the country, says Diana Flynn, litigation director of Lambda Legal, an........

© Mother Jones


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