The Supreme Court Weighs the First Amendment and Minority Rights

The case of a Christian website designer from Colorado who opposes same-sex marriage reached the Supreme Court on December 5. Because the Court said it would only address freedom of speech issues, the hearing pitted concerns over discrimination against freedom of artistic expression.1

Why Did This Case Reach the Supreme Court?

Lorie Smith wants to expand her web design business (303 Creative LLC) to include wedding websites, which she says she has dreamed of doing since childhood.2 Smith has religious objections to same-sex marriage and wants to post that message on her website, but doing that would likely violate the Colorado Anti-Discrimination Act. That law prohibits businesses open to the public from discriminating against customers on the basis of legally protected characteristics (in this case, sexual orientation) or communicating that such groups of people are unwelcome.3

Smith says that she has LGBTQ-identifying clients and would “happily” design graphics for their other endeavors, but creating their custom-made wedding websites would imply her approval of their marriage.4 Smith considers her artwork a form of speech, explaining, “It matters not to me how an individual identifies. What’s important to me is what message is I’m being asked to create and design for. And those messages must be consistent with my convictions.”5

Colorado argues that its law looks only at sales, not speech, to prevent marketplace discrimination, consistent with a longstanding legal tradition of ensuring public accommodations for all groups of people.6 Colorado argues that many businesses could claim their work is creative, and thus “speech,” thereby excusing discriminatory treatment.7 According to the state’s lawyer, “Your product can be a book or a painting, but once you make your product you can’t discriminate against certain customers based on who they are.”8

Lower courts have ruled for Colorado, citing “dignity interests” of members of marginalized groups.9 Many observers point to similarities between Smith’s case and the 2018 case of a baker (represented by Smith’s same lawyers) who claimed free speech and religious exercise should allow him to avoid serving same-sex couples.10 Then, the Supreme Court did not address freedom of speech and reaffirmed a precedent that prevents business owners from denying services due to religious objections.11 In 2021, the Court chose not to hear a similar objection from a florist who declined service for a same-sex wedding.12

What Arguments Shaped the Supreme Court Hearing?

The lengthy hearing considered whether Colorado’s law compels an artist to speak or stay silent, in violation of Free Speech rights.13 To address that question, the justices posited numerous hypothetical situations—a common tactic used to make a point or consider implications the specific case might have for other laws.14 Justice Amy Coney Barrett asked if Smith would design a website for a heterosexual couple marrying after divorcing previous spouses.15 In Justice Barrett’s words, “It’s about the message and not about the sexuality of the couple that asked her to express it.”16

Justice Ketanji Brown Jackson offered a hypothetical asking if a mall photographer who wanted to take “nostalgia photographs” of children with Santa evoking the 1950s could enact a policy “that only white children can be photographed with Santa.”17 Smith’s lawyer indicated that it would depend if the objection related to the speech or to the person’s demographics, noting, “When there is an overlap between message and status, message does win.”18 The lawyer also said, “There are difficult lines to draw, and that may be an edge case.”19 When Justice Samuel Alito expanded on the hypothetical, asking if a Black Santa would have to take a photo with a child in a Ku Klux Klan outfit, Colorado’s lawyer said no, since the clothing is not a protected characteristic.20 When Justice Elena Kagan pointed out that in this case, the child’s race would not matter, Justice Alito joked about Black children in KKK outfits (this and other comments have drawn public backlash).21

Justice Sonia Sotomayor argued that the message was the couple’s “story,” but Justice Neil Gorsuch likened it to a freelance writer who declines to work for clients of a different faith.22 Justice Kagan noted that denying a same-sex couple a standard website would be different than refusing to create one saying “God blesses this union,” and Colorado’s lawyer agreed that such “direct speech” is “trickier.”23

The hearing also considered how sweeping an exemption would be. Justice Clarence Thomas observed, “This is not a hotel. This is not a restaurant. This is not a riverboat or a train.”24 Considering whether caterers or chair vendors could claim a speech exemption, Smith’s lawyer argued that “art is different.”25 Justice Sotomayor wondered who else could be denied service, asking, “How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?”26 Smith’s lawyer called the scenario “highly unlikely” and said, “The line is that no one on any side of any debate has to be compelled to express a message that violates their core convictions.”27

Regarding broader implications, Justice Sotomayor said, “This would be the first time in the Court’s history that it would say that a commercial business, open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.”28 The lawyer for President Joe Biden’s administration warned that a ruling for Smith could allow a private school to exclude children on the basis of race by saying their teaching message changes when delivered “to students of a different race.”29 By contrast, Chief Justice John Roberts noted that the Supreme Court has never approved efforts to compel speech that is contrary to the speaker’s belief.30

What May Happen Next?

Many Supreme Court observers anticipate a ruling in favor of Smith.31 According to Notre Dame Law School professor Rick Garnett, justices spent the hearing asking about lines and limits when public accommodations laws tangle with First Amendment rights.32 The Court will provide its answer by July 2023.33

Discussion Questions

  1. During the hearing, Justice Brett Kavanaugh said, “The case comes down to a fairly narrow question of, how do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like the publishing houses and the other free speech analogues that are raised on the other side?”34
    1. Do you think a restaurant, jeweler, tailor, florist, or caterer’s work is creative enough to represent their freedom of expression? Why or why not?
    2. Do you think a restaurant, jeweler, tailor, florist, or caterer should be able to deny service on the basis of sexual orientation because of their religious beliefs? Why or why not?
    3. Do you think a website designer’s work is so creative that it represents their free speech? Why or why not?
  2. Imagine a custom-made Smith wedding website that includes photos, stories, and details about wedding event times and places. Which of this website content, if any, is Smith’s speech and which, if any, is her clients’ speech? Why?
  3. Do you think a freelance writer should be able to deny service to someone on the basis of their political viewpoint? Why? Do you think that writer can deny service to a group of people on the basis of race or sexual orientation? Why or why not?
  4. People supporting Smith worry that ruling against her would mean that other Christian and religious business owners will not be able to open businesses without having to violate their speech and/or religious beliefs by serving clients whose viewpoints or identities they oppose. People opposing Smith worry that ruling for her would allow a wide variety of businesses to use speech or religious grounds for discriminating against minority groups (akin to the Jim Crow era). Which set of consequences are you more concerned about? Why?
  5. If you had final legal authority to decide this case, would you allow Smith to create wedding websites only for heterosexual couples? Why or why not?
  6. What principles would you use to determine which businesses could deny service to groups of people and which, if any, could not claim an exemption to public accommodation laws based on free speech?

Additional Resources

  • LISTEN to the Supreme Court oral argument of 303 Creative LLC v. Elenis and download the audio file and transcript.
  • WATCH Smith and her lawyer comment on the case.
  • WATCH a civil rights attorney and a progressive judicial activist comment on the hearing and its implications.
  • REVIEW a chart of every state’s public accommodation laws from the National Conference of State Legislatures (NCSL).
  • DISCUSS other controversial issues in the current Court term. See this blog’s posts on cases addressing the Voting Rights Act, affirmative action, and the Indian Child Welfare Act.
  • READ previous posts from this blog with discussion questions on the Respect for Marriage Act and a proposed 2019 Labor Department religious exemption rule for more on LGBTQ+ rights and religious exemptions.

As always, we encourage you to join the discussion with your comments or questions below.

 

Sources

Featured Image Credit: Caitlyn Kim, Colorado Public Radio (CPR) News
[1] Roll Call: https://rollcall.com/2022/12/05/supreme-court-hears-arguments-in-same-sex-wedding-website-clash/
[2] Associated Press: https://apnews.com/article/us-supreme-court-religion-colorado-discrimination-360d60888809823779d033acce40c9bf
[3] Oyez: https://www.oyez.org/cases/2022/21-476
[4] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/01/this-colorado-web-designer-doesnt-want-to-make-wedding-sites-for-same-sex-couples-the-u-s-supreme-court-will-decide-whether-thats-legal/
SCOTUSblog: https://www.scotusblog.com/2022/12/colorado-web-designers-first-amendment-supreme-court-lgbtq-anti-discrimination-laws/
[5] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/01/this-colorado-web-designer-doesnt-want-to-make-wedding-sites-for-same-sex-couples-the-u-s-supreme-court-will-decide-whether-thats-legal/
[6] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/uscode/text/42/2000a
SCOTUSblog: https://www.scotusblog.com/2022/12/colorado-web-designers-first-amendment-supreme-court-lgbtq-anti-discrimination-laws/
U.S. Department of Justice: https://www.justice.gov/crt/title-ii-civil-rights-act-public-accommodations
[7] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/01/this-colorado-web-designer-doesnt-want-to-make-wedding-sites-for-same-sex-couples-the-u-s-supreme-court-will-decide-whether-thats-legal/
[8] Ibid.
[9] Associated Press: https://apnews.com/article/us-supreme-court-lifestyle-religion-couples-a5edfc7184a85dde5775994b8bd86a7c
[10] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/wedding-cake-lawyer-back-to-supreme-court-in-new-same-sex-case
[11] Oyez: https://www.oyez.org/cases/2017/16-111
Slate: https://slate.com/news-and-politics/2022/03/supreme-court-303-creative-coordinated-anti-lgbt-legal-strategy.html
[12] USA Today: https://www.usatoday.com/story/news/politics/2021/07/02/same-sex-marriage-supreme-court-religious-fight-weddings/2836274001/
[13] Politico: https://www.politico.com/news/2022/12/05/lqbtq-supreme-court-arguments-00072468
Supreme Court of the United States: https://www.supremecourt.gov/oral_arguments/calendars/MonthlyArgumentCalDecember2022.html
[14] Politico: https://www.politico.com/news/2022/12/05/lqbtq-supreme-court-arguments-00072468
USA Today: https://www.usatoday.com/story/news/politics/2013/10/23/supreme-court-hypothetical-questions/3108881/
[15] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/
[16] MSNBC: https://www.msnbc.com/opinion/msnbc-opinion/lgbtq-rights-case-gets-conservative-supreme-court-treatment-rcna59800
[17] NPR: https://www.npr.org/2022/12/05/1140824371/supreme-court-gay-marriage-colorado
[18] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/05/supreme-court-seems-poised-to-side-with-colorado-web-designer-in-303-creative-case/
[19] MSNBC: https://www.msnbc.com/opinion/msnbc-opinion/lgbtq-rights-case-gets-conservative-supreme-court-treatment-rcna59800
[20] Associated Press: https://apnews.com/article/us-supreme-court-entertainment-religion-race-and-ethnicity-discrimination-9f2a76e9c72b6e0dc2a513a968328799
[21] Associated Press: https://apnews.com/article/us-supreme-court-entertainment-religion-race-and-ethnicity-discrimination-9f2a76e9c72b6e0dc2a513a968328799
CNN: https://www.cnn.com/2022/12/05/politics/black-white-santa-alito-jackson-kagan-ashley-madison/index.html
Deseret News: https://www.deseret.com/2022/12/6/23496821/samuel-alito-comments-black-santa-kkk
MSNBC: https://www.msnbc.com/11th-hour/watch/critical-week-for-scotus-156326469557
Reuters: https://www.reuters.com/legal/government/us-supreme-court-makes-jokes-ignores-facts-lgbtq-rights-hang-balance-2022-12-14/
The Week: https://theweek.com/laws/1019026/supreme-court-303-creative-v-elenis-whats-at-stake
[22] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/
[23] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/05/supreme-court-seems-poised-to-side-with-colorado-web-designer-in-303-creative-case/
[24] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/
[25] SCOTUSblog: https://www.scotusblog.com/2022/12/conservative-justices-seem-poised-to-side-with-web-designer-who-opposes-same-sex-marriage/
[26] Associated Press: https://apnews.com/article/us-supreme-court-entertainment-religion-race-and-ethnicity-discrimination-9f2a76e9c72b6e0dc2a513a968328799
[27] The Center Square: https://www.thecentersquare.com/national/u-s-supreme-court-hears-colorado-case-over-free-speech-lgbt-rights/article_06c66b20-74df-11ed-9cde-dfade9e2a638.html
[28] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/05/supreme-court-seems-poised-to-side-with-colorado-web-designer-in-303-creative-case/
[29] SCOTUSblog: https://www.scotusblog.com/2022/12/conservative-justices-seem-poised-to-side-with-web-designer-who-opposes-same-sex-marriage/
[30] Ibid.
[31] CNN: https://www.cnn.com/2022/12/05/politics/303-creative-supreme-court-conservatives/index.html
Deseret News: https://www.deseret.com/faith/2022/12/13/23500136/how-will-supreme-court-rule-gay-rights
Newsweek: https://www.newsweek.com/no-chance-amy-coney-barrett-will-recuse-herself-lgbt-rights-case-1761395
Reuters: https://www.reuters.com/legal/government/us-supreme-court-makes-jokes-ignores-facts-lgbtq-rights-hang-balance-2022-12-14/
Washington Examiner: https://www.washingtonexaminer.com/restoring-america/fairness-justice/justices-dive-into-wild-hypotheticals-in-free-speech-case
[32] Deseret News: https://www.deseret.com/faith/2022/12/13/23500136/how-will-supreme-court-rule-gay-rights
[33] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/
SCOTUSblog: https://www.scotusblog.com/2022/12/conservative-justices-seem-poised-to-side-with-web-designer-who-opposes-same-sex-marriage/
[34] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/

 

The Debate Over the Respect for Marriage Act

The Senate passed the Respect for Marriage Act on November 29, and the House of Representatives is expected to pass it this week. President Joe Biden has already said he will sign it. The bill is the result of months of work by congressional leaders to create legislative protections for same-sex married couples.

The History of Same-Sex Marriage in the United States

Gay marriage was legalized across the country with the Supreme Court’s decision in Obergefell v. Hodges (2015). The case decided two things: (1) states must give marriage licenses to same-sex couples, and (2) states must recognize same-sex marriage licenses issued in other states.1

Before Obergefell, the federal government passed the Defense of Marriage Act (DOMA) in 1996, which limited the definition of marriage (in the eyes of the federal government) to unions between a man and a woman. DOMA allowed states not to recognize same-sex marriages performed in other states. Couples who were married in states that licensed gay marriage could not access the federal protections and privileges of legal marriage, such as access to a spouse’s employment benefits, the rights of inheritance, and tax benefits.2

Because the right of gay couples to marry is currently protected by a Supreme Court decision, advocates for the Respect for Marriage Act argue that more permanent protections, in the form of a national law, are necessary. The Court rarely overturns its past decisions, but it did so with Dobbs v. Jackson Women’s Health Organization (2022), which overturned the constitutional right to abortion established by Roe v. Wade (1973). In Dobbs, Justice Clarence Thomas included in his concurring opinion that the Court should reconsider its previous decisions about the right to access contraception, same-sex marriage, and same-sex romantic relationships.3

What Does the Respect for Marriage Act Include?

The Respect for Marriage Act would repeal DOMA and prohibit states from denying out-of-state marriage based on sex, race, or ethnicity. It would not require all states to continue providing marriage licenses to same-sex couples, but states would have to recognize those marriages performed legally in other parts of the country. The bill is intended to act as a protection for the more than 710,000 same-sex married couples in the country in case the Supreme Court reverses its Obergefell decision.4

The bill includes an amendment guaranteeing that faith-based groups would not lose their tax-exempt status or risk losing federal grant money for their objection to same-sex marriage, and that such groups would not need to recognize same-sex unions. This amendment was a bipartisan compromise for the 12 Republicans who joined Democrats in voting 61-35 to beat a filibuster in the Senate. Several churches and religious freedom organizations that do not support same-sex marriage endorsed the bill, including the Church of Jesus Christ of Latter-Day Saints, the Seventh-Day Adventist Church, the National Association of Evangelicals, and the Union of Orthodox Jewish Congregations.

Opponents of the Respect for Marriage Act say it is an attack on religious liberty, and that it does not include sufficient protections for people and organizations who hold religious beliefs that marriage should be defined as between one man and one woman. The Catholic Church and several conservatives publicly criticized the legislation, including Senators Mike Lee (R-Utah) and James Lankford (R-Okla.). The senators stated that the bill would make churches, religious organizations, and businesses vulnerable to lawsuits if they do not recognize gay marriage.5

Discussion Questions

  1. Why do advocates of the Respect for Marriage Act believe it is important to pass?
  2. Why do opponents of the bill believe it should not be passed?
  3. Why might religious groups that oppose same-sex marriage support this bill?
  4. What are the differences between rights protected by the Supreme Court and those protected by federal law?
  5. What do you think the role of Congress should be when it comes to the issue of gay marriage?

Additional Resources

As always, we encourage you to join the discussion with your comments or questions below.

Sources

Featured Image Credit: Jacquelyn Martin for the Associated Press

[1] Oyez. Obergefell v. Hodges. Web. 5 Dec. 2022.

[2] Cornell Law School Legal Information Institute. “Defense of Marriage Act.” Web. 5 Dec. 2022.

[3] Alfonseca, Kiara. “Supreme Court Opens Door to Overturning Rights to Contraceptives, Same-Sex Relationships and Marriage.” ABC News. 24 Jun. 2022. Web. 5 Dec. 2022.

[4] Karni, Annie. “Same-Sex Marriage Bill Passes Senate After Bipartisan Breakthrough.” New York Times. 29 Nov. 2022. Web. 5 Dec. 2022.

[5] Waters, Emma. ”Radical ‘Respect for Marriage Act’ Could Spell End of Religious Tax Exemptions.” Heritage Foundation. 30 Nov. 2022. Web. 5 Dec. 2022.

A Close Supreme Court Case Entangles Indigenous Children, Tribal Sovereignty, States’ Rights, and Race

What began as a child custody lawsuit evolved into a lengthy hearing of four consolidated cases before the Supreme Court on November 9, 2022.1 The law in question is the Indian Child Welfare Act (ICWA) and the Court’s eventual ruling on it could impact laws about race, states’ rights, and the sovereignty of Native American tribes.2

Why Did Congress Create the ICWA? What Does It Include?

Congress passed the ICWA in 1978 following over 100 years of federal policies such as American Indian boarding schools and the Indian Adoption Project. From the late 1800s through the middle-to-late 20th century, American Indian boarding schools aimed to assimilate Native American youth by forbidding tribal languages, beliefs, clothing, and names—a practice critics have labeled cultural genocide.3 From 1958 until 1967, the Indian Adoption Project operated with the stated goal of having Native American children adopted by white families.4

Extensive hearings and research prior to the ICWA’s passage showed that public and private child-welfare-oriented agencies had removed hundreds of thousands of American Indian children from their homes and placed 85 percent of them with non-tribal families.5 Few of these removals were due to abuse; most were based on social workers’ judgments that caretaking by extended family members (a common cultural practice in many Native American communities) demonstrated parental abandonment or that poverty (disproportionately present in Indian Country) amounted to neglect.6

In response, Congress passed the ICWA to stop a “white, middle-class standard” from dictating care decisions.7 The legislation set minimum standards for removing American Indian children (federal law uses the term “Indian” to refer to indigenous and Native American peoples of the United States).8 The ICWA also required states to notify tribes of an off-reservation American Indian child’s removal, and it set up a framework to give preferences for foster or adoption placements, first to extended family members, then to other tribal members, and subsequently to members of a different tribe—with some exceptions for “good cause.”9

Supporters of the ICWA say it has set a “gold standard” for other child welfare practices, both nationally and globally, especially with regard to its favoring of family placements.10 Critics argue that the ICWA places tribal needs over individual children’s needs by presuming that an American Indian tribe can always best serve the interest of an American Indian child.11 Other supporters contend that the ICWA especially benefits American Indian girls who are more likely than non-American Indian children to become human trafficking victims when placed in state foster homes.12 Still, state agencies and courts have often failed to enforce the Indian Child Welfare Act.13

READ part one of this blog’s series on the lead-up to the current Supreme Court case for more detailed historical context surrounding the ICWA.

Who Is Involved in the Current Case?

When a white Texas couple, Chad and Jennifer Brackeen, sought to foster and later adopt a 10-month-old Navajo and Cherokee boy, referred to in court as A.L.M., the ensuing legal battle led to a dispute over the boy’s half-sister, identified as Y.R.J.14 When the Brackeens learned that Y.R.J. would enter foster care, they filed for custody with the support of the child’s biological mother.15 An initial court ruling ordered shared custody between the Brackeens and Y.R.J.’s great aunt, who is of Navajo descent.16 Both parties appealed the decision, leading to the current Supreme Court case.17 In the meantime, Y.R.J., now 4, has lived with the Brackeens since infancy.18 According to Chad Brackeen, “It’s heartbreaking to us that there are laws out here that say it’s better for her to live in a tribal home, any tribal home … before she is allowed to stay in our home with her brother.”19

READ part two of this blog’s series on the lead-up to the current Supreme Court case for more information about the parties involved, the arguments at hand, and the prior legal steps of Brackeen v. Haaland.

What Could the Supreme Court Decide?

The case presents multiple legal questions that the Supreme Court may address.20 One is whether the ICWA can allow tribes to establish child placement preferences that state courts would have to follow.21 Texas argues that this unlawfully delegates a state’s legislative power to tribes, but President Joe Biden’s administration contends that the ICWA incorporates tribal preferences into federal law.22 Two related constitutional arguments also question state and federal authority: one asks if Congress’ Article I powers over Native Americans include child custody; the other asks if the ICWA violates the 10th Amendment’s “anticommandeering doctrine” by forcing state courts to implement a federal law.23

A separate legal question is over the Constitution’s equal protection guarantee, notably included in the 14th Amendment, which prevents racial, ethnic, and gender discrimination.24 The tribes and the Biden administration claim that the ICWA treats American Indians politically, based on their status as sovereign tribes, but the challengers argue that the law treats indigenous children and prospective adoptive parents on the basis of race.25 The distinction is significant because if the law is based on race, it must pass the stringent legal test of strict scrutiny rather than a lower bar called rational basis.26

What Implications Could This Decision Have?

Challengers to the ICWA note that Native American children are disproportionately represented in the foster care system, and they argue that the ICWA’s placement preferences add additional barriers between American Indian children and loving adoptive homes.27 “There are Americans out there who are eager to help these children out, and the Indian Child Welfare Act says they are not allowed to because their skin is the wrong color,” said Timothy Sandefur, an adjunct scholar at the libertarian-leaning Cato Institute.28 Texas Attorney General Ken Paxton wrote, “Knowing the difficulties that await them if they attempt to adopt a Native child, many couples simply turn elsewhere at the outset.”29

Kate Fort, director of the Indian Law Clinic at Michigan State University, said the Supreme Court’s decision could “lead to a fundamental re-understanding of how Congress can or cannot pass laws for tribes.”30 She pointed to a case in Washington, where challengers are echoing Brackeen’s arguments in opposition to an alleged gambling monopoly by Native Americans.31 According to Mary Kathryn Nagle, a Native American rights attorney, “For Indian country, it is maybe one of the most important cases that has ever gone before the Supreme Court.”32 Nagle has noted the oil and gas experience of the Brackeens’ law firm, suggesting it as a motivating factor in its work on the case.33 Robert Miller, a member of the Eastern Shawnee Tribe, tribal court judge, and Arizona State University professor of federal American Indian law, extended concern more broadly, saying, “All of a sudden, lands would be owned by ‘a race of Indian people,’ not a tribal government. Your borders, your police laws, everything on the reservation would be in question. I’m not being hyperbolic. I am afraid of this case.”34

What Did the Supreme Court Hearing Reveal?

Given the number of parties involved, the Supreme Court scheduled an extended hearing of one hour and 40 minutes, but the arguments exceeded three hours.35 Texas’s lawyer argued that Congress lacks the authority to enlist state governments in enforcing the ICWA, but Justice Sonia Sotomayor cited other laws with federal impact on state custody hearings, such as those involving deployed service members.36 Justice Amy Coney Barrett noted possible commandeering with regard to recordkeeping duties and the “active efforts” that the ICWA requires states to use to avoid breaking up Native American families.37 Justice Neil Gorsuch expressed disagreement, suggesting that since the “active efforts” provision applies to both state and private entities, it doesn’t attempt to co-opt state government.38 While Justices Barrett and Gorsuch, along with Justice Elena Kagan, indicated support for upholding Congress’s authority over American Indian affairs as “plenary,” or near-absolute, Justice Samuel Alito and Chief Justice John Roberts indicated concern that this could give Congress unlimited power over Native American law.39 In response, the Biden administration’s lawyer contended that Congress holds such power only if there is a rational relationship to Congress’ unique responsibilities regarding Native Americans.40

The “rational” standard seemed to draw criticism from justices who focused on race and equal protection questions, thereby implying a need for strict scrutiny in this case. Justice Brett Kavanaugh suggested Congress “couldn’t give a preference for white families for white children, for Black families for Black children, for Latino families for Latino children, for Asian families for Asian children.”41 The lawyer representing the Biden administration agreed that those decisions would be based on race but noted that the ICWA treated Native Americans as sovereign tribal entities rather than a racial group.42 Justice Kagan seemed to agree, noting the Supreme Court’s “long history of cases where we’ve understood legislation relating to the tribes as political.”43 Justice Sotomayor compared the ICWA to an existing international treaty that addresses child abduction and removal across national borders.44

Several justices questioned the racial/political distinction regarding the ICWA’s “third preference” that would place an American Indian child with a different tribe before a non-American Indian family.45 Justice Barrett said, “Let’s assume I agree with you that these are political classifications—this is just treating Indian tribes as fungible.”46 In response, the tribes’ lawyer noted that the Supreme Court could strike down that third preference alone and let the ICWA stand otherwise.47 He also said that the hypothetical transfer of an American Indian child from a tribe in Arizona to one in Maine “has never happened that we’ve been able to find or that counsel on the other side has been able to find.”48

Justice Gorsuch seemed to side with tribal lawyers over the implications of treating the ICWA as a race-based law, expressing concern that much of Title 25 of the U.S. Code (a section of laws governing Indian Country) wouldn’t survive an equal protection challenge.49 “There’ll be a lot that would be bitten out of Title 25,” said Justice Gorsuch. “We’d be busy for the next many years striking things down.”50

Justice Kavanaugh encapsulated the debate as a choice “between two fundamental and critical constitutional values.”51 On one side, Justice Kavanaugh described respecting tribal government and recognizing “the history of oppression and discrimination against tribes.” On the opposing side, he noted “the fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry.”52

How Does This Case Relate to Other Supreme Court Cases This Year?

Supreme Court observers have noted that many of the current term’s significant cases deal with race, either directly or indirectly.53 The Court has already heard cases on affirmative action and congressional redistricting (as related to the Voting Rights Act), and the December schedule features a case on the power of state legislatures over election law and voting restrictions (which often disproportionately affect people of color).54 Also in December, a case requesting a religious freedom exemption for a business that seeks to deny service to same-sex couples could see the Court discuss why that same exemption would or would not apply on racial lines.55

In the three cases the Supreme Court has already heard, one side was arguing for a “color-blind” application of the Constitution, to the perceived detriment of a minority group.56 In the Voting Rights Act case, for example, Alabama argued that a state cannot use race to benefit Black voters in drawing district maps.57 Supporters of a color-blind constitutional view see racial discrimination in all three cases, but opponents note that the post-Civil War Reconstruction amendments were never intended to be race-neutral but rather to use race-conscious laws to protect newly freed slaves.58 Those on both sides of the debate have pointed to the current makeup of the Court as potentially receptive to a color-blind constitutional reading.59

READ this blog’s posts on the Voting Rights Act case and the affirmative action cases for further discussion about this term’s Supreme Court cases focused on race.

What May Happen Next?

The ICWA has drawn significant support, with briefs in support of the law coming from hundreds of tribes and tribal organizations, over two dozen child welfare and adoption organizations, a bipartisan group of 87 members of Congress, and more than 20 states (ten of which have created state laws that mirror or exceed the ICWA’s standards).60 States could bolster those laws if the Supreme Court narrowly strikes down portions of the ICWA for federal overreach.61 Tribal advocates have said they will continue to fight for American Indian children, regardless of the Court’s decision.62

Based on the hearing, Supreme Court observers have speculated that Justice Gorsuch, a tribal rights proponent, could join with the three justices appointed by Democratic presidents in upholding portions of the ICWA, but that the group of four seems unlikely to draw the needed fifth justice to their side.63 A 5-4 ruling could chart a middle path that would uphold portions of the ICWA, strike down others, and avoid some of the far-reaching implications of a more sweeping decision. But such an outcome remains speculative until the Court issues its decision around June 2023.64

Discussion Questions

  1. During the hearing, Justice Kagan said, “The first thing you need for self government is a functioning polity,” and that Congress clearly “thinks that this statute is critical to the continuing existence of the tribe as a political entity.”65 In response, the Brackeens’ lawyer said that placing a Native American child with a white family wouldn’t change the child’s membership or reduce the size of the tribe.66
    1. How important do you think it is for Native American tribes to be given first preference to foster and adopt children that could be considered tribal members? Why do you think that?
    2. How important do you think it is for Native American children to be raised by extended family members or other members of their tribe? Why do you think that?
  2. Should state governments, the federal government, or tribal governments have primary jurisdiction over Native American children? Why?
  3. Do you think the ICWA should stay in place as it currently exists? Consider the following questions:
    1. Do you think the ICWA infringes on states’ rights to run their own adoption and custody systems? Why or why not?
    2. Do you think that having the federal government make laws about American Indian children is the best way to protect tribal rights? Why or why not?
    3. Does it discriminate against families like the Brackeens if a Native American child’s extended family gets preference over them to foster or adopt? Why or why not?
    4. Does it discriminate against families like the Brackeens if a Native American child’s tribe gets preference over them to foster or adopt? Why or why not?
    5. Does it discriminate against families like the Brackeens if a Native American tribe receives preference over them to foster or adopt a Native American child from a different tribe? Why or why not?
  4. Read the following two quotes to determine with which you agree more: “The precedent of the Supreme Court is that Indian tribes are political groups of people, they are not racial groups of people,” Chrissi Ross Nimmo, the deputy attorney general of Cherokee Nation, told reporters last month. “Tribes determine citizenship … just like countries.”67 Matthew D. McGill, a lawyer for the people challenging the law, said the children at issue had made no political choices. “They are human beings,” he said. “They are citizens of the United States and the states in which they reside. They are persons within the meaning of the Fifth Amendment. And they have liberty interests that the tribe cannot override simply by unilaterally enrolling them.”68
    1. Does giving preferential placement to tribes infringe on the liberty of American Indian children? Or would removing American Indian children from tribes do more to infringe on their liberty?
  5. The Brackeens are an Evangelical Christian couple.69 In a now-defunct blog, Jennifer Brackeen described religious inspiration for wanting to foster and adopt, and when it looked as though A.L.M. would be placed with a Navajo non-relative, Jennifer Brackeen wrote about how her family offered the boy access to their culture, which “he would not have had in his biological family.” By contrast, Sarah Kastelic, executive director of the National Indian Child Welfare Association, has said, “For a long time, non-Native people have been trying to ‘save’ Native children who don’t need saving.” Based on these quotes, consider the following question:
    1. Does having a religious motivation strengthen either party’s case? Why or why not?
  6. If you had final legal authority to determine the custody of now-four-year-old Y.R.J., how would you assign custody? To her great aunt of Navajo descent, to the Brackeens who adopted her half-brother, or to someone else? Would you prioritize any sort of shared custody? What factors most determined your decision?
  7. How concerned are you that this case could impact other laws about Native Americans? Why?
  8. Angelique EagleWoman, the director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law, refers to the ICWA as “a remedial statute because it has been the U.S. government’s policy for hundreds of years to destroy the Native American family.”70
    1. Do you think Congress should pass laws aimed at remedying past historical injustices? Why or why not?
    2. Do you think the Constitution should be read as “color-blind,” even if that disadvantages groups that some laws, like the ICWA, were historically created to protect? Why or why not?

Additional Resources

WATCH the Brackeens and Mary Kathryn Nagle (a Cherokee lawyer) comment on the case.

LISTEN to the Supreme Court hearing of Haaland v. Brackeen and consolidated cases.

WATCH “Blood Memory: A Story of Removal and Return,” an episode of “America ReFramed.”71  It presents an in-depth, first-hand account of a woman who was removed from her tribe in the Indian Adoption era and sought out her Native American culture as an adult. For a preview, watch the trailer here.

As always, we encourage you to join the discussion with your comments or questions below.

 

Sources

Featured Image Credit: Shuran Huang for The Texas Tribune
[1] SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[2] The Hill: https://thehill.com/regulation/court-battles/3720368-supreme-courts-sleeper-case-is-major-clash-over-native-american-adoptions/
NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
Vox: https://www.vox.com/policy-and-politics/2022/11/8/23440460/supreme-court-brackeen-haaland-indian-child-welfare-act
Washington Post: https://www.washingtonpost.com/nation/2022/11/07/icwa-supreme-court-arizona/
[3] Equal Justice Initiative: https://eji.org/news/history-racial-injustice-cultural-genocide/
The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[4] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[5] The Hill: https://thehill.com/regulation/court-battles/3720368-supreme-courts-sleeper-case-is-major-clash-over-native-american-adoptions/
NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
[6] Washington Post: https://www.washingtonpost.com/nation/2022/11/07/icwa-supreme-court-arizona/
[7] The Economist: https://www.economist.com/united-states/2022/11/10/native-american-children-come-before-the-supreme-court
[8] ABA Journal: https://www.abajournal.com/web/article/supreme-court-to-consider-future-of-indian-child-welfare-act
Cornell Law School Legal Information Institute: https://www.law.cornell.edu/supct/cert/21-376
[9] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
[10] The Hill: https://thehill.com/regulation/court-battles/3720368-supreme-courts-sleeper-case-is-major-clash-over-native-american-adoptions/
Native American Rights Fund: https://narf.org/cases/brackeen-v-bernhardt/
Slate: https://slate.com/news-and-politics/2022/11/supreme-court-indian-child-welfare-erase-ancestry.html
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
Washington Post: https://www.washingtonpost.com/nation/2022/11/07/icwa-supreme-court-arizona/
[11] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/supct/cert/21-376
[12] Ibid.
[13] The Economist: https://www.economist.com/united-states/2022/11/10/native-american-children-come-before-the-supreme-court
The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
[14] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
[15] Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
[16] Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
[17] Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
[18] Associated Press: https://apnews.com/article/us-supreme-court-texas-race-and-ethnicity-africa-319ff13d4d5b45ee648aab2bb8ec361f
[19] NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
[20] Oyez: https://www.oyez.org/cases/2022/21-376
Cornell Law School Legal Information Institute: https://www.law.cornell.edu/supct/cert/21-376
[21] SCOTUSblog: https://www.scotusblog.com/2022/11/in-challenge-to-indian-child-welfare-act-court-will-weigh-the-rights-of-states-and-the-role-of-race/
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/supct/cert/21-376
Cornell Law School Legal Information Institute: https://www.law.cornell.edu/wex/rational_basis_test
SCOTUSblog: https://www.scotusblog.com/2022/11/in-challenge-to-indian-child-welfare-act-court-will-weigh-the-rights-of-states-and-the-role-of-race/
[27] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[28] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
[29] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[30] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
[31] Ibid.
[32] The Hill: https://thehill.com/regulation/court-battles/3720368-supreme-courts-sleeper-case-is-major-clash-over-native-american-adoptions/
[33] Associated Press: https://apnews.com/article/videos-81e8f6644f4e4389a31f400f920073d1
[34] Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
[35] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
Supreme Court of the United States: https://www.supremecourt.gov/oral_arguments/calendars/MonthlyArgumentCalNovember2022.html
USA Today: https://www.usatoday.com/story/news/politics/2022/11/09/supreme-court-custody-native-american-children-icwa/8314156001/
[36] NPR: https://www.npr.org/2022/11/09/1135619252/supreme-court-hears-arguments-challenging-the-indian-child-welfare-act
[37] SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
[38] Ibid.
[39] The Hill: https://thehill.com/regulation/court-battles/3727987-supreme-court-grapples-with-native-american-adoption-law/
SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
[40] SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
[41] Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[42] USA Today: https://www.usatoday.com/story/news/politics/2022/11/09/supreme-court-custody-native-american-children-icwa/8314156001/
Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[43] SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
[44] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[45] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/native-american-adoption-law-splits-supreme-court-conservatives
SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[46] Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[47] Ibid.
[48] The Hill: https://thehill.com/regulation/court-battles/3727987-supreme-court-grapples-with-native-american-adoption-law/
[49] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[50] Ibid.
[51] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/native-american-adoption-law-splits-supreme-court-conservatives
[52] New York Times: https://www.nytimes.com/2022/11/09/us/politics/supreme-court-native-american-adoptions.html
[53] SCOTUSblog: https://www.scotusblog.com/2022/10/the-court-is-poised-to-set-jurisprudence-on-race-for-generations-and-not-just-in-affirmative-action/
[54] Ibid.
[55] Ibid.
[56] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/indian-child-welfare-law-is-third-high-court-color-blind-test
[57] Ibid.
[58] Ibid.
[59] Ibid.
[60] Associated Press: https://apnews.com/article/us-supreme-court-texas-race-and-ethnicity-africa-319ff13d4d5b45ee648aab2bb8ec361f
Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
Source New Mexico: https://sourcenm.com/2022/03/21/the-platinum-standard-of-the-indian-child-welfare-act/
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
U.S. Senate Committee on Indian Affairs: https://www.indian.senate.gov/news/press-release/schatz-murkowski-davids-cole-lead-bipartisan-bicameral-members-congress-amicus
[61] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[62] Ibid.
[63] New York Times: https://www.nytimes.com/2022/11/09/us/politics/supreme-court-native-american-adoptions.html
Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[64] New York Times: https://www.nytimes.com/2022/11/09/us/politics/supreme-court-native-american-adoptions.html
SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
USA Today: https://www.usatoday.com/story/news/politics/2022/11/09/supreme-court-custody-native-american-children-icwa/8314156001/
[65] USA Today: https://www.usatoday.com/story/news/politics/2022/11/09/supreme-court-custody-native-american-children-icwa/8314156001/
[66] Ibid.
[67] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
[68] New York Times: https://www.nytimes.com/2022/11/09/us/politics/supreme-court-native-american-adoptions.html
[69] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[70] The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
[71] PBS: https://www.pbs.org/show/america-reframed/