Amicus Curiae Brief — Sharonell Fulton, et al., Petitioners v. City of Philadelphia, Pennsylvania, et al.

Supreme Court briefAug 20, 2020

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No. 19-123

In the

Supreme Court of the United States

SHARONELL FULTON, ET AL.

Petitioners,

CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF FORMER SERVICE SECRETARIES

AND THE MODERN MILITARY ASSOCIATION

OF AMERICA AS AMICI CURIAE

SUPPORTING RESPONDENTS

PETER PERKOWSKI

MODERN MILITARY

ASSOCIATION OF

AMERICA

1725 Eye Street, NW

Suite 300

Washington, DC 20006

(202) 328-3244

MICHAEL E. BERN

Counsel of Record

GEORGE C. CHIPEV

L. ALLISON HERZOG

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

michael.bern@lw.com

Counsel for Amici Curiae Secretaries Ray Mabus,

Deborah Lee James, and Eric Fanning, and the

Modern Military Association of America

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iv

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT.....................................4

ARGUMENT ...............................................................6

II.

LGBTQ SERVICE MEMBERS, THEIR

SPOUSES, AND THEIR FAMILIES ARE

INTEGRAL TO THE MILITARY’S

ABILITY

ACCOMPLISH

ITS

MISSION ............................................................6

LGBTQ Service Members Are

Integral To America’s Armed Forces.........6

Military Families, Including LGBTQ

Military Families, Also Are Integral

To The Military’s Ability To

Accomplish Its Mission ..............................8

For Many LGBTQ Service Members,

The Ability To Adopt Is Critical To

Having A Fulfilling Family Life ..............12

PERMITTING

RELIGIOUS

DISCRIMINATION ON THE BASIS OF

SEXUAL

ORIENTATION

WOULD

BURDEN LGBTQ SERVICE MEMBERS

AND FRUSTRATE THE MILITARY’S

ABILITY TO ACHIEVE ITS MISSION ..........14

TABLE OF CONTENTS—Continued

Page

Anti-Discrimination Requirements

Ensure Equal Access And Protect

LGBTQ Persons, Including Service

Members, From Discrimination By

Providers Of A Wide Range Of

Critical

Government-Funded

Services.....................................................16

LGBTQ Service Members May Be

Stationed In Remote Areas With

Few Service Providers, Making It

Critically Important That Private

Entities Contracting With The

Government Cannot Discriminate

Against Them ...........................................22

The Need For Anti-Discrimination

Protections Is Acute In The Adoption

And Foster Care Context, Because

LGBTQ Families Frequently Suffer

Discrimination From Such Service

Providers ..................................................24

In Many Places, LGBTQ

Families

Still

Face

Discrimination In Adoption

And Foster Care Services ................24

Permitting An Opt-Out Of

Anti-Discrimination Laws And

Policies On The Basis Of

Religious Views Will Be

Acutely Felt By LGBTQ

Military Families .............................25

iii

TABLE OF CONTENTS—Continued

Page

Permitting An Opt-Out To Any AntiDiscrimination Requirements To

LGBTQ Service Members Will Harm

Morale And Retention, And Impede

The Military’s Mission .............................30

CONCLUSION ..........................................................34

TABLE OF AUTHORITIES

Page(s)

CASES

Bostock v. Clayton County,

140 S. Ct. 1731 (2020)..........................................14

Grutter v. Bollinger,

539 U.S. 306 (2003) ..............................................31

Heart of Atlanta Motel v. United States,

379 U.S. 241 (1964) .................................. 28, 30, 33

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) ..............................................28

Obergefell v. Hodges,

135 S. Ct. 2584 (2015)....................................29, 30

Roberts v. United States Jaycees,

468 U.S. 609 (1984) ..............................................28

Tennessee v. Lane,

541 U.S. 509 (2004) ..............................................28

United States v. Windsor,

570 U.S. 744 (2013) ..............................................29

STATUTES

Cal. Gov’t Code § 12990(c) ........................................17

Conn. Gen. Stat. § 4a-60(a)(1) ..................................18

Tex. Hum. Res. Code Ann. § 45.004(1) (2017) .........26

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

$20 Million In Funding Approved To Keep

Seton Medical Center In Daly City Open,

KPIX 5 CBS (Mar. 11, 2020),

https://sanfrancisco.cbslocal.com/2020/

03/11/20-million-in-funding-approved-tokeep-seton-medical-center-in-daly-cityopen/ .....................................................................20

Alfred C. Aman, Jr. & Joseph C. Dugan, The

Human Side of Public-Private

Partnerships: From New Deal Regulation

to Administrative Law Management, 102

Iowa L. Rev. 883 (2017) .......................................16

Frank J. Bewkes, et al., Center for American

Progress, Welcoming All Families;

Discrimination Against LGBTQ Foster

and Adoptive Parents Hurts Children

(Nov. 20, 2018),

https://www.americanprogress.org/

issues/lgbtq-rights/reports/2018/11/20/

461199/welcoming-all-families/ .....................25, 26

Scott Bowles, A Death Robbed of

Dignity Mobilizes a Community,

Wash. Post (Dec. 10, 1995),

https://www.washingtonpost.com/

archive/local/1995/12/10/a-death-robbedof-dignity-mobilizes-a-community/

2ca40566-9d67-47a2-80f2-e5756b2753a6/ ..........20

TABLE OF AUTHORITIES—Continued

Page(s)

Thomas Brading, ‘The Army Family’

awarded AUSA Marshall Medal for

selfless service, Army News Service (Aug.

10, 2020), https://www.army.mil/article/

237884/the_army_family_awarded_ausa_

marshall_medal_for_selfless_service ..................10

Amy Byrne, 5 LGBTQ service members who

changed military history, MilSpouseFest,

http://militaryoneclick.com/5-lgbt-servicemembers-changed-military-history/ (last

visited Aug. 11, 2020) ............................................6

Cal. Dep’t of Fair Employment and Housing,

Discrimination: Requirements for

Recipients of State Funding,

https://www.dfeh.ca.gov/

statefundedprograms/#:~:text=All%20

recipients%20of%20state%20funding,

includes%20denial%20or%20restriction

%20of (last visited Aug. 17, 2020) .......................17

Ash Carter, U.S. Dep’t of Defense, Secretary

of Defense Message, LGBT Pride Month

Message (June 7, 2016),

https://www.defense.gov/Newsroom/

Speeches/Speech/Article/793510/

lgbt-pride-month-message/ ....................................8

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Diane J. Cho, These Dads Adopted 2 Little

Girls Weeks Apart – and Want to Travel

the Country to Practice ‘Acceptance

Through Visibility,’ People.com (June 26,

2019), https://people.com/parents/pridemonth-dads-discuss-lgbtq-activism-andparenting/ .............................................................13

CNIC, Naval Air Weapons Station China

Lake, https://www.cnic.navy.mil/

regions/cnrsw/installations/

naws_china_lake.html (last visited

Aug. 17, 2020) ......................................................18

Shannon Collins, U.S. Dep’t of Defense,

Senior Leaders Discuss Importance of

Supporting Military Children, DOD News

(July 31, 2015), https://www.defense.gov/

News/Article/Article/612730 ..................................9

Committee on the Assessment of

Readjustment Needs of Military

Personnel, Veterans and Their

Families, Institute of Medicine of the

National Academies, Returning Home

from Iraq and Afghanistan: Assessment

of Readjustment Needs of Veterans,

Service Members, and Their Families

(2013), https://www.ncbi.nlm.nih.gov/

books/NBK206864/pdf/

Bookshelf_NBK206864.pdf..................................11

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Committee on the Well-Being of Military

Families, National Academies of

Sciences, Engineering, and Medicine,

Strengthening the Military Family

Readiness System for a Changing

American Society (2019),

https://www.ncbi.nlm.nih.gov/books/

NBK547607/pdf/Bookshelf_

NBK547607.pdf......................................................9

County of Kern, Kern County Election

Results, Prop 8 Eliminates Right of

Same-Sex Couples to Marry (Nov. 25,

2008), http://elections.co.kern.ca.us/

elections/results/nov08/ .......................................18

Derek Coy, 5 Transgender Service Members

Who Are Defying Military Norms, Task &

Purpose (Nov. 17, 2015),

http://taskandpurpose.com/5-transgenderservice-members-defying-military-norms/ ............7

Defense Finance & Accounting Serv.,

Adoption Reimbursement,

https://www.dfas.mil/militarymembers/

payentitlements/adoptionreimbursement/

(last visited Aug. 11, 2020) ..................................13

Defense Manpower Data Center, Dep’t of

Defense, Report: Military and Civilian

Personnel by Service/Agency by

State/Country: June 2020 (last visited

Aug. 14, 2020) ......................................................17

TABLE OF AUTHORITIES—Continued

Page(s)

Dep’t of Defense, Remarks by Secretary

Hagel at the Lesbian, Gay, Bisexual,

Transgender Pride Month Event in the

Pentagon Auditorium (Jun. 25, 2013),

https://archive.defense.gov/transcripts/

transcript.aspx?transcriptid=5262 .......................7

Wendy Netter Epstein, Contract Theory and

the Failures of Public-Private

Contracting, 34 Cardozo L. Rev. 2211

(2013) ....................................................................16

Feature Friday With Thomas & Jonathan

West, The Property Lovers, (Aug. 24,

2018), https://www.pjandthomas.com/

blog/2018/8/24/feature-friday-withthomas-west-jonathan .........................................13

Jody Freeman, The Contracting State, 28

Fla. St. U.L. Rev. 155 (2000) ...............................16

Gary J. Gates, Williams Institute, Effects of

“Don’t Ask, Don’t Tell” on Retention

among Lesbian, Gay and Bisexual

Military Personnel 1 (Mar. 2007),

https://williamsinstitute.law.ucla.edu/

wp-content/uploads/LGB-Military-DADTMar-2007.pdf ..................................................32, 33

Gary J. Gates, Williams Institute, LGBT

Parenting in the United States 3 (Feb.

2013), https://williamsinstitute.law.

ucla.edu/publications/lgbt-parenting-us .............13

TABLE OF AUTHORITIES—Continued

Page(s)

Ga. Div. of Family & Children Servs., Foster

Parent Manual 8 (2017),

http://fostergeorgia.com/

wp-content/uploads/2017/09/GeorgiaFoster-Parent-Manual-September2017.pdf ................................................................26

Jeremy T. Goldbach & Carl Andrew Castro,

Lesbian, Gay, Bisexual, and Transgender

(LGBT) Service Members: Life After Don’t

Ask, Don’t Tell, 18 Current Psychiatry

Rep. 56 (online ed. Apr. 16, 2016),

https://cir.usc.edu/wp-content/uploads/

2016/04/GoldbachCastro-LGBTMilitary.pdf. .....................................................6, 33

Abbie E. Goldberg, et al., LGBTQ

individuals’ experiences eith delays and

disruptions in the foster and adoption

Process, 106 Children & Youth Services

Review (Aug. 16, 2019),

https://wordpress.clarku.edu/

agoldberg/files/2019/09/Goldberg-FrostMiranda-and-Kahn-2019-CYSRDisruption-and-delays-LGBTQ.pdf ...............24, 29

Jaime M. Grant et al., Nat’l Center for

Transgender Equality & Nat’l Gay and

Lesbian Task Force, Injustice at Every

Turn: A Report of the National

Transgender Discrimination Survey

(2011), https://www.thetaskforce.org/

wp-content/uploads/2019/07/ntds_full.pdf ..........20

TABLE OF AUTHORITIES—Continued

Page(s)

Margaret C. Harrell et al., Rand National

Defense Research Inst., Working Around

the Military: Challenges to Military

Spouse Employment and Education

(2004), https://www.rand.org/content/

dam/rand/pubs/monographs/2004/RAND_

MG196.pdf ......................................................10, 11

Karen Jowers, Dunford: Military Families

Key to National Security, Military Times

(Oct. 11, 2016),

https://www.militarytimes.com/spouse/

2016/10/11/dunford-military-families-keyto-national-security/ ........................................9, 12

David Leonhardt & Claire Cain Miller, The

Metro Areas With the Largest, and

Smallest, Gay Populations, N.Y. Times:

TheUpshot (Mar. 20, 2015),

https://www.nytimes.com/2015/03/21/

upshot/the-metro-areas-with-the-largestand-smallest-gay-population.html ................22, 23

Marvin Lim & Louise Melling, Inconvenience

or Indignity? Religious Exemptions to

Public Accommodations Laws, 22 J.L. &

Pol’y 705 (2014) ....................................................28

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Joanne Marshall-Mies, David Westhuis &

Richard Fafara, US Army Morale, Welfare

and Recreation (MWR) Programmes:

Links to Readiness and Retention, Res

Militaris No. 3 (2011),

http://resmilitaris.net/ressources/

10144/30/res_militaris_-_us_army_morale

__welfare_and_recreation__mwr__

programmes.pdf ...................................................31

Sarah O. Meadows et al., Rand Corp., 2015

Department of Defense Health Related

Behaviors Survey (2018),

https://www.rand.org/pubs/

research_reports/RR1695.html .............................6

MilitaryBases.com, California Military

Bases, https://militarybases.com/

california/#:~:text=California%20has%20

more%20military%20bases,most%20

heavily%20around%20San%20Diego (last

visited Aug. 17, 2020) ..........................................17

Shabab Ahmed Mirza & Caitlin Rooney,

Center for American Progress,

Discrimination Prevents LGBTQ People

From Accessing Health Care (Jan. 18,

2018), https://www.americanprogress.org/

issues/lgbtq-rights/news/2018/01/18/

445130/discrimination-prevents-lgbtqpeople-accessing-health-car.................................19

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Movement Advancement Project, Foster Care

Laws & Regulations,

https://www.lgbtmap.org/equalitymaps/foster_care_laws (last visited Aug.

11, 2020) ...............................................................14

Daniel J. Munoz, Here’s what NJ’s largest

hospitals got in federal COVID-19 relief

aid, NJ Biz (May 11, 2020),

https://njbiz.com/heres-njs-largesthospitals-got-federal-covid-19-relief-aid/ ............19

Meghann Myers, Report: Recruiting

challenges might have pushed the Army’s

end strength plans back a few years, Army

Times (Feb. 7, 2019),

https://www.armytimes.com/news/yourarmy/2019/02/07/report-recruitingchallenges-might-have-pushed-thearmys-end-strength-plans-back-a-fewyears/ ....................................................................31

National Women’s Law Center, Health Care

Refusals Harm Patients: The Threat to

LGBT People and Individuals Living with

HIV (Jan. 2013), https://www.nwlc.org/

wp-content/uploads/2015/08/

refusals_harm_patients_lgbt_hiv_1-242013.pdf ................................................................21

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

National Women’s Law Center, Health Care

Refusals Harm Patients: The Threat to

LGBT People and Individuals Living with

HIV/AIDS (May 2014),

https://nwlc.org/wp-content/uploads/

2015/08/lgbt_refusals_factsheet_05-0914.pdf. .............................................................19, 20

N.Y. State Exec. Order No. 177 (Mar. 15,

2018), https://www.governor.ny.gov/

news/no-177-prohibiting-state-contractsentities-support-discrimination ..........................19

Office of Naval Intelligence Public Affairs,

Sharp Gives Keynote at LGBT Pride

Month Summit, https://www.oni.navy.mil/

Portals/12/Media/in_the_news/PAO%20

Release%2027July17bgs.pdf?ver=201707-27-090649-807 (last visited Aug. 11,

2020) .......................................................................8

Office of the Deputy Secretary of Defense,

Directive-type Memorandum (DTM)-19004 (Mar. 2020),

https://www.esd.whs.mil/Portals/54/

Documents/DD/issuances/dtm/

DTM%2019-004.PDF?ver=2020-03-17140438-090 .............................................................2

S. Rep. No. 88-872, pt. 1(1964), as reprinted

in 1964 U.S.C.C.A.N. 2355 ............................29, 33

TABLE OF AUTHORITIES—Continued

Page(s)

Avichai Scher, Gay in Rural America: Up to

5 percent of rural residents are LGBTW,

report finds, NBC News (Apr. 12, 2019),

https://www.nbcnews.com/feature/nbcout/gay-rural-america-5-percent-ruralresidents-are-lgbtq-report-n993936 ....................23

Sejal Singh & Laura E. Durso, Center for

American Progress, Widespread

Discrimination Continues to Shape LGBT

People’s Lives in Both Subtle and

Significant Ways (May 2, 2017),

https://www.americanprogress.org/issues/

lgbtq-rights/news/2017/05/02/429529/

widespread-discrimination-continuesshape-lgbt-peoples-lives-subtlesignificant-ways/ ..................................................22

State of New Jersey, Governor Murphy,

Attorney General Gurbir Grewal, and

Former Congresswoman Gabby Giffords

Announce Winners of Grants for Nine

Hospital-Based Violence Intervention

Programs Across New Jersey (Jan. 29,

2020), https://nj.gov/governor/news/news/

562020/approved/20200129a.shtml;....................19

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

Ted Thornhill & Associated Press, America’s

rusting nuclear arsenal: Behind the blast

doors at USAF bases that reveal aging

weapons and low morale of missile crews,

Daily Mail (July 8, 2014),

http://www.dailymail.co.uk/news/article2684493/The-problems-nuclear-Behindscenes-US-army-bases-reveal-ageingweapons-low-morale-missileers.html..................32

Trinitas Regional Medical Center, About us,

https://trinitasrmc.org/about_us.htm (last

visited Aug. 18, 2020) ..........................................19

U.S. Army, Keeping Our Army Strong,

https://www.army.mil/families/ (last

visited Aug. 11, 2020) ............................................9

Urban Institute, Health and Hospital

Expenditures, https://www.urban.org/

policy-centers/cross-centerinitiatives/state-and-local-financeinitiative/state-and-localbackgrounders/health-and-hospitalexpenditures (last visited Aug. 17, 2020) ...........17

xvii

TABLE OF AUTHORITIES—Continued

Page(s)

United States Senate Subcommittee on

Personnel, Committee on Armed Services,

Hearing to Receive Testimony on

Department of Defense Single

Servicemember and Military Family

Readiness Programs (Feb. 14, 2017) ),

https://www.armed-services.senate.gov/

imo/media/doc/17-10_02-14-17.pdf ...... 9, 10, 11, 12

United States Strategic Command

Biography, Maj. Gen. Randy S. Taylor,

https://www.stratcom.mil/Portals/8/Docu

ments/Bios/COS.pdf?ver=2020-04-30181347-937 (last updated Apr. 2020) ....................7

Sharon Vandivere et al., Dep’t of Health &

Human Servs., Office of the Assistant

Secretary for Planning and Evaluation,

Adoption USA: A Chartbook Based on the

2007 National Survey of Adoptive Parents

(2009), https://aspe.hhs.gov/system/files/

pdf/75911/index.pdf .............................................12

Vermont Center for Crime Victims Services,

Discrimination Procedures: Procedures

for Responding to Complaints of Unlawful

Discrimination (eff. Mar. 2019),

http://www.ccvs.vermont.gov/about/

discrimination-procedures ...................................18

INTEREST OF AMICI CURIAE1

The amici curiae are Secretary Ray Mabus,

Secretary Deborah Lee James, Secretary Eric

Fanning, and the Modern Military Association of

America (“MMAA”). Amici share an interest in

policies that enhance the military’s readiness and

protect the interests of service members and their

families. Amici respectfully submit this brief to

advocate for a ruling that affirms the government’s

right to include anti-discrimination provisions in

contracts and that recognizes how a right to

discriminate would harm the military by stigmatizing

and otherwise negatively affecting service members

and their families.

Secretary Ray Mabus was the 75th U.S. Secretary

of the Navy from 2009 to 2017, the longest to serve as

leader of the Navy and Marine Corps since World War

I. Throughout his tenure, he focused on four key

priorities—People,

Platforms,

Power,

and

Partnerships—that enabled the Navy and Marine

Corps’ unique ability to maintain the global presence

that reassures our allies and deters our adversaries.

Among his achievements, he spearheaded the “21st

Century Sailor and Marine” initiative, which was

designed to build and maintain the most resilient and

ready force possible and to prepare service members

The parties have consented to the filing of this amicus

brief. No counsel for any party authored this brief in whole or in

part; no such counsel or any party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity, other than amici and their counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief.

and their families for the high-tempo operations of

today’s military.

Secretary Deborah Lee James was the 23rd U.S.

Secretary of the Air Force. Previously, she served in

the Pentagon as the Assistant Secretary of Defense

for Reserve Affairs, where she was the Secretary of

Defense’s Senior Advisor on National Guard and

Reserve personnel. As a professional staff member on

the House Armed Services Committee, she served as

Senior Advisor to the Military Personnel and

Compensation Subcommittee, the NATO Burden

Sharing Panel, and the Chairman’s Member Services

team.

Secretary Eric Fanning was the 22nd U.S.

Secretary of the Army. As Secretary, he had statutory

responsibility for all matters related to the Army,

including manpower, personnel, and reserve affairs.

Previously, he served as Chief of Staff to the Secretary

of Defense, as Acting Secretary of the Air Force, as

Under Secretary of the Air Force, and as Deputy

Under Secretary of the Navy/Deputy Chief

Management Officer. He is the only person to have

held senior appointments in all three military

departments and the Office of the Secretary of

Defense.

MMAA is a non-profit, non-partisan legal services,

policy, and watchdog organization serving lesbian,

gay, bisexual, transgender, and queer (“LGBTQ”)

military personnel, veterans, military spouses, family

members, and allies, and individuals living with

HIV.2 MMAA has over 75,000 members. MMAA has

While lesbian, gay, bisexual, and queer service members

can openly serve, transgender people are not permitted to serve

or enlist in the military, except if they serve in their original sex

a unique understanding of the challenges faced by the

populations it serves. Since 1993, MMAA and its

predecessor entities have assisted over 12,500 clients.

MMAA and its predecessor entities have filed

lawsuits challenging laws and regulations that

target, stigmatize, discriminate against, or otherwise

negatively affect LGBTQ service members and their

families—reducing morale and diminishing military

readiness by inhibiting the military’s efforts at

recruiting and retention. MMAA and its predecessors

also have submitted amici briefs to this Court in cases

that directly affected LGBTQ service members,

including Obergefell v. Hodges,3 Masterpiece

Cakeshop, Ltd. v. Colorado Civil Rights Commission,4

and Bostock v. Clayton County.5

assignment, had been grandfathered in prior to April 12, 2019,

or were given a waiver. See Office of the Deputy Secretary of

Defense, Directive-type Memorandum (DTM)-19-004 at 2-3

(Mar. 2020), https://www.esd.whs.mil/Portals/54/Documents/

DD/issuances/dtm/DTM%2019-004.PDF?ver=2020-03-17-140438090. Thus, transgender people continue to serve in the military,

and there are thousands who are veterans. As they would be

subject to similar repercussions depending on the outcome of this

case, amici therefore includes transgender people in their

arguments unless otherwise noted.

Amicus Curiae OutServe-Servicemembers Legal

Defense Network and American Military Partner Association

Br., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (Nos. 14-556 et

al.), 2015 WL 981531.

Amicus Curiae Outserve-SLDN, Inc., American Military

Partner Association, and American Veterans for Equal Rights

Br., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,

138 S. Ct. 1719 (2018) (No. 16-111), 2017 WL 5152970.

Amicus Curiae Modern Military Association of America

and Transgender American Veterans Association Br., Bostock v.

SUMMARY OF ARGUMENT

Amici agree with Respondents that the

Constitution does not prohibit the government from

requiring private parties, including religious entities,

that wish to enter into voluntary contractual

arrangements to deliver government services to

commit not to discriminate in the provision of those

services on the basis of a recipient’s sexual orientation

or other personal characteristics. Amici further agree

with Respondents that the government is not

required to exempt religious entities that voluntarily

elect to contract with the government from complying

with

generally

applicable

nondiscrimination

requirements. Amici also agree with Respondents

that overruling Employment Division v. Smith would

have far reaching and negative consequences.

Amici submit this brief not to rehash those

arguments, but to address the substantial practical

consequences of this case for LGBTQ service

members, spouses, and family members—and

therefore the military itself. Service members are

stationed throughout the country according to the

military’s needs and, unlike civilians, cannot choose

to live in the communities of their choice. LGBTQ

service members—and many others—benefit when

the government where they are stationed requires

parties with whom it contracts to serve everyone

within the community, without regard to race,

religion, or sexual orientation.

A rule exempting private parties who seek to

contract with the government from complying with

generally applicable nondiscrimination laws will

Clayton Cty., 140 S. Ct. 1731 (2020) (Nos. 17-1618 et al.), 2019

WL 2915034.

particularly disadvantage LGBTQ service members.

For example, LGBTQ individuals and couples are, as

a whole, more likely to adopt children than

heterosexual couples. In many areas where service

members are stationed, there are few child welfare

agencies to whom those seeking to adopt children can

turn. Thus, access to such services is especially vital

for LGBTQ families. Similarly, there are a limited

number of private service providers in rural areas

with which the government contracts to provide

countless other services. If those organizations can

discriminate against individuals or couples on the

basis of sexual orientation notwithstanding

nondiscrimination laws and policies, it will not only

directly harm LGBTQ service members and their

families, but undermine the military’s recruitment

and retention of LGBTQ personnel, thus damaging

vital national security interests.

In short, a ruling for Petitioners would weaken

military readiness. The military needs LGBTQ

service members—not just because of the struggle to

meet recruiting goals, but because a diverse military

is critical to its effectiveness. Allowing the

discrimination urged here would directly harm

LGBTQ service members and their families, and,

faced with being relocated to areas where

discrimination might impede them from accessing

vital services, many LGBTQ people will be

discouraged from enlisting or continuing their

service. That would undermine important military

interests.

ARGUMENT

I. LGBTQ

SERVICE

MEMBERS,

THEIR

SPOUSES, AND THEIR FAMILIES ARE

INTEGRAL TO THE MILITARY’S ABILITY

TO ACCOMPLISH ITS MISSION

A. LGBTQ Service Members Are Integral

To America’s Armed Forces

LGBTQ service members are integral to America’s

Armed Forces. Indeed, LGBTQ individuals make up

a substantial number of overall service members

throughout every branch of the armed services. More

than 71,000 military personnel identify as lesbian,

gay, or bisexual. See Jeremy T. Goldbach & Carl

Andrew Castro, Lesbian, Gay, Bisexual, and

Transgender (LGBT) Service Members: Life After

Don’t Ask, Don’t Tell, 18 Current Psychiatry Rep. 56

at 1 (online ed. Apr. 16, 2016), https://cir.usc.edu/

wp-content/uploads/2016/04/GoldbachCastro-LGBTMilitary.pdf (“Goldbach Study”) . As of 2015, LGBTQ

personnel made up 6.1% of service members and serve

in every branch of the armed services. Sarah O.

Meadows et al., Rand Corp., 2015 Department of

Defense Health Related Behaviors Survey at xxx

(2018), https://www.rand.org/pubs/research_reports/

RR1695.html. It is estimated that at least 6,600

additional service members identify as transgender.

Rand Study at x-xi.

LGBTQ service members are highly decorated,

having received numerous military awards and

commendations. Technical Sergeant Leonard P.

Matlovich, the first gay service member to

purposefully out himself to the military, received the

Purple Heart and the Bronze Star. See Amy Byrne, 5

LGBTQ service members who changed military

history, MilSpouseFest, http://militaryoneclick.com/5lgbt-service-members-changed-military-history/ (last

visited Aug. 11, 2020).

Kristin Beck, who is

transgender, served thirteen tours overseas as a

special operator on the Navy’s SEAL Team Six.

Derek Coy, 5 Transgender Service Members Who Are

Defying Military Norms, Task & Purpose (Nov. 17,

2015),

http://taskandpurpose.com/5-transgenderservice-members-defying-military-norms/. She was

awarded the Bronze Star for heroic action under fire,

the Purple Heart, and the Defense Meritorious

Service Medal with an oak leaf cluster. Id. And

openly gay Major General Randy S. Taylor, Chief of

Staff of U.S. Strategic Command has been awarded

the Distinguished Service Medal, the Ranger Tab, the

Expert Infantryman Badge, the Senior Parachutist

Badge, the Air Assault Badge, and the Presidential

Service Badge. United States Strategic Command

Biography,

Maj.

Gen.

Randy

Taylor,

https://www.stratcom.mil/Portals/8/Documents/Bios/

COS.pdf?ver=2020-04-30-181347-937 (last updated

Apr. 2020). These are just a few examples.

Given this record of service, it is unsurprising that

military leaders recognize that welcoming LGBTQ

people in the Armed Forces has enhanced the

military’s ability to achieve its mission. In 2015,

former Secretary of Defense and Republican

Senator Chuck Hagel said “[g]ay and lesbian service

members and LGBT civilians are integral to

America’s armed forces . . . [,] [making] our military

and our nation stronger, much stronger.” Dep’t of

Defense, Remarks by Secretary Hagel at the Lesbian,

Gay, Bisexual, Transgender Pride Month Event in

the Pentagon Auditorium (Jun. 25, 2013),

https://archive.defense.gov/transcripts/transcript.aspx

?transcriptid=5262. In 2016, then-Defense Secretary

Ash Carter recognized that the readiness and

willingness to serve of “brave LGBT soldiers, sailors,

airmen, Coast Guardsmen, and Marines ha[s] . . .

made our military stronger and our nation safer.”

Ash Carter, U.S. Dep’t of Defense, Secretary of

Defense Message, LGBT Pride Month Message (June

2016),

https://www.defense.gov/Newsroom/

Speeches/Speech/Article/793510/lgbt-pride-monthmessage/. Similarly, Rear Admiral Robert Sharp,

director of the National Maritime IntelligenceIntegration Office and commander of Office of Naval

Intelligence, stated that including LGBTQ service

members in the Armed Forces “makes the best use of

our

talent,

strengthens

the

team

and

ensures we identify, assess and recruit the nation's

best and brightest.” Office of Naval Intelligence

Public Affairs, Sharp Gives Keynote at LGBT Pride

Month Summit, https://www.oni.navy.mil/Portals/

12/Media/in_the_news/PAO%20Release%2027July17

bgs.pdf?ver=2017-07-27-090649-807 (last visited Aug.

11, 2020).

The contributions of LGBTQ service members are

vital to the military’s ability to accomplish its national

security goals, and their inclusion and retention

furthers important military objectives and the longterm national security and public interests of the

United States.

B. Military Families, Including LGBTQ

Military Families, Also Are Integral To

The Military’s Ability To Accomplish Its

Mission

Military families—the recognized “key element” of

readiness and effectiveness—are also vital to

maintaining a strong and resilient all-volunteer force

and to helping service members meet the challenges

of military service.

Most service members have families: 51% are

married, and another 6% are single parents. Karen

Jowers, Dunford: Military Families Key to National

Security, Military Times (Oct. 11, 2016),

https://www.militarytimes.com/spouse/2016/10/11/

dunford-military-families-key-to-national-security/.

About 40% of service members are parents.

Committee on the Well-Being of Military Families,

National Academies of Sciences, Engineering, and

Medicine, Strengthening the Military Family

Readiness System for a Changing American Society 93

at Fig. 3-5 (2019), https://www.ncbi.nlm.nih.gov/

books/NBK547607/pdf/Bookshelf_NBK547607.pdf.

Military leaders recognize families as the “force

behind the force”—impacting service members’

morale, readiness, enrollment, and retention. U.S.

Army,

Keeping

Our

Army

Strong,

https://www.army.mil/families/ (last visited Aug. 11,

2020); see also Shannon Collins, U.S. Dep’t of Defense,

Senior Leaders Discuss Importance of Supporting

Military Children, DOD News (July 31, 2015),

https://www.defense.gov/News/Article/Article/612730

(noting that leaders recognize “[f]amily is part of

readiness, and [the military has] to have that balance

between mission, family and . . . community” (quoting

Army Lt. Gen. David D. Halverson)). Testifying

before the United States Senate, Master Chief Petty

Officer Steven S. Giordano explained, “[t]aking care

of marines and their families is a key element of

overall readiness and combat effectiveness.” U.S.

Senate Subcomm. on Personnel, Comm. on Armed

Services, Hearing to Receive Testimony on

Department of Defense Single Servicemember and

Military Family Readiness Programs, Transcript 11

(Feb. 14, 2017), https://www.armed-services.senate.gov/

imo/media/doc/17-10_02-14-17.pdf (“Feb. 14, 2017

Hearing Tr.”) (testimony of Steven S. Giordano,

Master Chief Petty Officer of the Navy) (emphasis

added). Chief Master Sergeant of the Air Force James

A. Cody agreed: “Families are often the catalyst to an

airman’s decision to stay or leave the Air Force.” Id.

at 15 (testimony of James A. Cody, Chief Master

Sergeant of the Air Force). And in 2020, the

Association of the U.S. Army—the Army’s premier,

nonprofit, educational and professional association—

gave its highest award, the George Catlett Marshall

Medal, to the “Army Family.” Thomas Brading,

‘The Army Family’ awarded AUSA Marshall

Medal for selfless service, Army News Service (Aug.

10,

2020),

https://www.army.mil/article/237884/

the_army_family_awarded_ausa_marshall_medal_

for_selfless_service. At the time, Dee Geise, Chief of

the Soldier and Family Readiness Directorate in the

Office of the Deputy Chief of Staff, G-9, emphasized

that “if Soldiers are worried about their Families,

they may be unable to focus on their mission. That’s

why, along with modernization and reform, ‘Army

Families are a focal point for Army readiness[.]’” Id.

The military demands sacrifices from service

members’ families. Families routinely must relocate

based on national security and military necessity,

instead of their own geographic preferences. See

Margaret C. Harrell et al., Rand National Defense

Research Inst., Working Around the Military:

Challenges to Military Spouse Employment and

Education 18-20 (2004), https://www.rand.org/

content/dam/rand/pubs/monographs/2004/RAND_

MG196.pdf. The Rand Corporation has observed that

during a five-year study period, fewer than half of

civilian families moved, while that number was 90%

for military families. Id. at 18-19. And many military

moves require relocating along distances. Id. at 19.

Service members and their families also are not

infrequently separated. When service members’

duties require separation from their family, their

“[d]ominant [c]oncern” is “the impact of separation on

their families and worries about their spouses’ ability

to cope with deployment-related challenges.” See

Committee on the Assessment of Readjustment

Needs of Military Personnel, Veterans and Their

Families, Institute of Medicine of the National

Academies,

Returning

Home

from

Iraq

and Afghanistan: Assessment of Readjustment

Needs of Veterans, Service Members, and Their

Families 274 (2013), https://www.ncbi.nlm.nih.gov/

books/NBK206864/pdf/Bookshelf_NBK206864.pdf.

Supporting service members’ families can help

alleviate those worries.

Therefore, helping military families to face and

overcome the burdens imposed on them as a result of

a loved one’s service is essential to maintaining a

robust and skilled volunteer military. Sergeant Major

Ronald L. Green testified as much to Senate

Committee on the Armed Forces, stating on behalf of

the Navy that “[t]aking care of [M]arines and their

families is a key element of overall readiness and

combat effectiveness.

The adage ‘we recruit

[M]arines, we retain families’ remains as true today

as ever.” Feb. 14, 2017 Hearing Tr. 11 (testimony of

Sergeant Major Ronald L. Green, Sergeant Major of

the Marine Corps).6

Indeed, because military families are crucial to

morale, readiness, and retention, “[w]ere it not for the

strength of [military] families, were it not for the[ir]

willingness to sacrifice, our nation wouldn’t be safe.”

See Jowers, supra (quoting Chairman of the Joint

Chiefs Gen. Joseph Dunford).

C. For Many LGBTQ Service Members, The

Ability To Adopt Is Critical To Having A

Fulfilling Family Life

For many service members, adopting children,

including through the foster care system, is a critical

element of their efforts to build a healthy, positive

home life in the midst of the many challenges that

military families face. Based on a Department of

Health and Human Services study, between 2002 and

2007, about 2% of all U.S. children are adopted, and

37% of children adopted in the U.S. each year come

from the foster care system. Sharon Vandivere et al.,

Dep’t of Health & Human Servs., Office of the

Assistant Secretary for Planning and Evaluation,

Adoption USA: A Chartbook Based on the 2007

National Survey of Adoptive Parents 56 (2009),

https://aspe.hhs.gov/system/files/pdf/75911/index.pdf.

In recognition of the importance of adoption to

service members and their families, the military

offers a reimbursement for adoption-related

This sentiment is shared throughout the military. See,

e.g., Feb. 14, 2017 Hearing Tr. 15 (statement of James A. Cody)

(“Families are often the catalyst to an [A]irman decision to stay

or leave the Air Force. These selfless families make many

sacrifices, and the Air Force remains clear in its commitment to

taking care of them.”).

expenses. Defense Finance & Accounting Serv.,

Adoption

Reimbursement,

https://www.dfas.mil/

militarymembers/payentitlements/adoptionreimburse

ment/ (last visited Aug. 11, 2020).

Adoption and foster care—which itself is

important to military families both to provide

temporary stable homes for children in need and as a

potential step towards adoption—are especially

important to LGBTQ couples, who are four times

more likely to be raising an adopted child and six

times more likely to be raising foster children than

opposite-sex couples.

Gary J. Gates, Williams

Institute, LGBT Parenting in the United States 3

(Feb. 2013), https://williamsinstitute.law.ucla.edu/

publications/lgbt-parenting-us/. As Thomas and

Jonathan West—a gay military couple and the

parents of adopted children—said when describing a

family visit to the White House: “To stand together

recognized as a same-sex, multi-race military family

with all the other families, in that special place, at

that moment was one of the most memorable and

rewarding experiences of our lives.” Feature Friday

With Thomas & Jonathan West, The Property Lovers

(Aug. 24, 2018), https://www.pjandthomas.com/blog/

2018/8/24/feature-friday-with-thomas-west-jonathan;

see also Diane J. Cho, These Dads Adopted 2 Little

Girls Weeks Apart – and Want to Travel the Country

Practice

‘Acceptance

Through

Visibility,’

People.com (June 26, 2019), https://people.com/

parents/pride-month-dads-discuss-lgbtq-activism-andparenting/.

Because building a fulfilling family life is vital to

service members’ success, discrimination against

LGBTQ families in the provision of adoption and

foster care services undermines the military’s efforts

to support military families who seek to grow their

families through such services.

II. PERMITTING

RELIGIOUS

DISCRIMINATION ON THE BASIS OF

SEXUAL ORIENTATION WOULD BURDEN

LGBTQ

SERVICE

MEMBERS

AND

FRUSTRATE THE MILITARY’S ABILITY TO

ACHIEVE ITS MISSION

Although the LGBTQ community continues to

make important gains nationwide in its pursuit of

equality, see, e.g., Bostock v. Clayton Cty., 140 S. Ct.

1731 (2020), the lived experience of being openly

LGBTQ still varies dramatically depending on where

an individual lives.7 Still-frequent discrimination

against LGBTQ persons means that generally

applicable rules requiring government contractors to

treat equally LGBTQ persons are essential to

protecting them and their families from harmful

discrimination, including when they want to adopt or

foster children.

Because areas without such protections may not

be accepting environments for LGBTQ families, many

families are motivated to relocate to areas that are

See Movement Advancement Project, Foster Care Laws

Regulations,

https://www.lgbtmap.org/equality-maps/

foster_care_laws (last visited Aug. 11, 2020) (showing statutes,

regulations, and/or agency policies prohibiting discrimination in

foster care based on sexual orientation and gender identity in 25

states; statutes, regulations, and/or agency policy prohibiting

discrimination based on sexual orientation only in 5 states; no

explicit protections in 20 states; and 11 states that permit statelicensed child welfare agencies to refuse to place and provide

services to children and families, including LGBTQ people and

same-sex couples, if doing so conflicts with their religious

beliefs).

more welcoming or that provide more comprehensive

anti-discrimination protections. But this is not an

option for LGBTQ military families. Unlike civilians,

service members and their families generally cannot

choose to where they live. See supra 10-11. To

support the military’s mission, these service members

cannot simply move to areas where local attitudes

towards LGBTQ people are more accepting. Instead,

they are often stationed far from major cities and in

more rural or remote areas, where local attitudes

towards LGBTQ relationships, marriage, and child

raising may be less accepting.

This challenge would be exacerbated by the result

advocated for by Petitioners, requiring religious

exemptions to anti-discrimination protections. Such

a result would be extremely damaging to LGBTQ

military families, potentially jeopardizing their access

to a wide array of services contracted for by the

government and exposing them to harmful

discrimination that might prevent them from being

able to foster or adopt children at all. And even if

service members ultimately are able to access those

services, they still would have suffered serious dignity

harms that result from facing discrimination. These

harms lead to a cascade of problems: LGBTQ service

members and spouses would feel unhappy and

unsupported; morale would suffer; and this would

cause both a retention and a recruitment issue for the

military, jeopardizing its ability to carry out its

mission and making service less attractive to

potential recruits. The result of such discrimination

would be to impede the military’s ability to meet the

numbers and diversity that the military believes best

advances its objectives.

Anti-Discrimination

Requirements

Ensure Equal Access And Protect

LGBTQ Persons, Including Service

Members, From Discrimination By

Providers Of A Wide Range Of Critical

Government-Funded Services

A decision permitting government contractors to

opt-out of anti-discrimination laws will impair

LGBTQ service members’ access to a variety of vital

services, including adoption and foster care services.

Governments provide many vital services through

funding to private organizations. “Over a quarter of

local government services are now provided to some

degree by private entities. And state governments’

use of privatization is on the rise.” Wendy Netter

Epstein, Contract Theory and the Failures of PublicPrivate Contracting, 34 Cardozo L. Rev. 2211, 2213

(2013) (footnote omitted). Along with administering

foster care, common government-funded services

include “disburs[ing] welfare benefits,” “operat[ing]

utilities,” “secur[ing] communities and investigat[ing]

crimes.” Alfred C. Aman, Jr. & Joseph C. Dugan, The

Human Side of Public-Private Partnerships: From

New Deal Regulation to Administrative Law

Management, 102 Iowa L. Rev. 883, 886 (2017). “They

have formed corporate entities to manage charter

schools,” and perform a variety of routine government

services such as “build[ing] roads, repair[ing] bridges,

collect[ing] trash, and remov[ing] snow.”

Id.

Additionally, many important healthcare services are

government-funded, such as nursing homes and

primary care for Medicaid beneficiaries.

Jody

Freeman, The Contracting State, 28 Fla. St. U.L. Rev.

155, 177, 180 (2000). “In 2017, state and local

governments spent $294 billion, or 10 percent of

direct general spending, on health and hospitals.”

Urban Institute, Health and Hospital Expenditures,

https://www.urban.org/policy-centers/cross-centerinitiatives/state-and-local-finance-initiative/state-andlocal-backgrounders/health-and-hospital-expenditures

(last visited Aug. 17, 2020).

Governments

often

have

adopted

antidiscrimination requirements for the organizations

using government funding to provide these services.

For example, California, which has 32 military bases8

and approximately 164,500 military personnel,9

prohibits state contractors from discriminating in the

provision of government services. Cal. Gov’t Code

§ 12990(c). Among other things, the regulations

prohibit “denial or restriction of access to public

accommodations (such as housing or businesses), as

well as to streets, highways, hospitals, and other

public facilities and places, or to programs or

activities, as well as a failure to provide reasonable

accommodations to permit such access.” Cal. Dep’t of

Fair Employment & Housing, Discrimination:

Requirements for Recipients of State Funding,

https://www.dfeh.ca.gov/statefundedprograms/#:~:text

=All%20recipients%20of%20state%20funding,includes

%20denial%20or%20restriction%20of (last visited

MilitaryBases.com,

California Military Bases,

https://militarybases.com/california/#:~:text=California%20has

%20more%20military%20bases,most%20heavily%20around%20

San%20Diego (last visited Aug. 17, 2020).

Defense Manpower Data Center, Dep’t of Defense,

Report: Military and Civilian Personnel by Service/Agency by

State/Country: June 2020, https://www.dmdc.osd.mil/appj/dwp/

dwp_reports.jsp (select link for “June 2020” under “Military and

Civil Personnel by Service/Agency” for Excel chart) (last visited

Aug. 14, 2020).

Aug. 17, 2020) (citation omitted). These regulations

protect LGBTQ service members in the state

from being denied equal access to government-funded

services to which they might otherwise be excluded.

For example, Naval Air Weapons Station

China Lake—the largest Navy landholding in the

world,

covering

area

larger

than Rhode Island—is located in the Mojave

Desert, 150 miles northeast of Los Angeles. CNIC,

Naval Air Weapons Station China Lake,

https://www.cnic.navy.mil/regions/cnrsw/installations/

naws_china_lake.html (last visited Aug. 17, 2020).

The cities closest to China Lake are small, rural

locations in Kern County—which less than 10 years

ago voted overwhelmingly to pass a constitutional

amendment affirmatively stripping the right to marry

from LGBTQ couples who already had such a right.

County of Kern, Kern County Election Results, Prop

8 Eliminates Right of Same-Sex Couples to Marry

(Nov.

25,

2008),

http://elections.co.kern.ca.us/

elections/results/nov08/.

California’s

antidiscrimination rules protect LGBTQ service members

in this area from discrimination by government

contractors. Granting government contractors an

opt-out from generally applicable civil-rights laws

would eliminate the protections that California

provides to China Lake’s LGBTQ service members

and their families.

States like Connecticut, Vermont, and New York

have

similar

anti-discrimination

rules

for

government contractors.

See Conn. Gen. Stat.

§ 4a-60(a)(1);

Vermont

Center

for

Crime

Victims

Services,

Discrimination

Procedures:

Procedures for Responding to Complaints of Unlawful

Discrimination

(eff.

Mar.

2019),

http://www.ccvs.vermont.gov/about/discriminationprocedures; N.Y. State Exec. Order No. 177 § 3(a)

(Mar. 15, 2018), https://www.governor.ny.gov/news/

no-177-prohibiting-state-contracts-entities-supportdiscrimination. These anti-discrimination laws are

crucial to ensuring that LGBTQ people, including

military families, have access to these services despite

the risk that individuals who hold unaccepting

attitudes towards the LGBTQ community may be

unwilling to serve them.

For example, LGBTQ individuals often face

discrimination from healthcare providers. Shabab

Ahmed

Mirza

Caitlin

Rooney,

Center

for American Progress, Discrimination Prevents

LGBTQ People From Accessing Health Care (Jan. 18,

2018),

https://www.americanprogress.org/issues/

lgbtq-rights/news/2018/01/18/445130/discriminationprevents-lgbtq-people-accessing-health-care/. In one

instance, hospital staff at Trinitas Hospital10 in New

Jersey refused to give an HIV patient his medication

or allow his family to visit after he disclosed he had

sex with men. National Women’s Law Center, Health

Care Refusals Harm Patients: The Threat to LGBT

Trinitas is a private, religiously affiliated hospital that

receives government funding, see State of N.J., Governor

Murphy, Attorney General Gurbir Grewal, and Former

Congresswoman Gabby Giffords Announce Winners of Grants for

Nine Hospital-Based Violence Intervention Programs Across New

Jersey (Jan. 29, 2020), https://nj.gov/governor/news/news/

562020/approved/20200129a.shtml; Daniel J. Munoz, Here’s

what NJ’s largest hospitals got in federal COVID-19 relief aid,

NJ Biz (May 11, 2020), https://njbiz.com/heres-njs-largesthospitals-got-federal-covid-19-relief-aid/; see also Trinitas

Regional Medical Center, About us, https://trinitasrmc.org/

about_us.htm (last visited Aug. 18, 2020).

People and Individuals Living with HIV/AIDS 2 &

n.16 (May 2014), https://nwlc.org/wp-content/uploads/

2015/08/lgbt_refusals_factsheet_05-09-14.pdf.

The

doctor at the hospital told the patient’s personal

doctor, “This is what he gets for going against God’s

will.” Id. at 2. In another case, a hospital11 refused to

permit a transgender woman’s doctor to perform

breast augmentation surgery. Id. at 2 & n.19.

Similarly, emergency services providers also have

refused to treat LGBTQ individuals, such as when

Washington, D.C. rescue workers allegedly stopped

treating Tyra Hunter, a transgender woman, who

subsequently died. See Scott Bowles, A Death Robbed

of Dignity Mobilizes a Community, Wash. Post (Dec.

10,

1995),

https://www.washingtonpost.com/

archive/local/1995/12/10/a-death-robbed-of-dignitymobilizes-a-community/2ca40566-9d67-47a2-80f2e5756b2753a6/; see also Jaime M. Grant et al., Nat’l

Center for Transgender Equality & Nat’l Gay and

Lesbian Task Force, Injustice at Every Turn: A Report

of the National Transgender Discrimination Survey

72-74

(2011),

https://www.thetaskforce.org/

wp-content/uploads/2019/07/ntds_full.pdf

(survey

detailing discrimination against transgender people

by medical providers, including emergency services

providers).

This occurred at Seton Hall Medical Center, a hospital

that receives government funding. See $20 Million In Funding

Approved To Keep Seton Medical Center In Daly City Open, KPIX

5 CBS (Mar. 11, 2020), https://sanfrancisco.cbslocal.com/2020/

03/11/20-million-in-funding-approved-to-keep-seton-medicalcenter-in-daly-city-open/.

In another case,

[a] 39-year old teacher called 911 after

experiencing a sudden, severe headache, high

blood pressure, and vomiting. Upon entering

her apartment, the EMTs who responded to the

call assumed she was a lesbian. Then, at the

hospital, the EMTs told the nurse that the

patient ‘was a lesbian who probably had a spat

with her lover and got drunk’ and that it was

not a serious call. The patient was then left

unattended for over an hour, in violation of

hospital protocol.

By the time the staff

returned to her, she had gone into a coma after

having suffered a stroke and, within a week,

was dead.

National Women’s Law Center, Health Care Refusals

Harm Patients: The Threat to LGBT People

and Individuals Living with HIV 1 (Jan. 2013)

(footnotes omitted), https://www.nwlc.org/wp-content/

uploads/2015/08/refusals_harm_patients_lgbt_hiv_124-2013.pdf.

Because of the ongoing threat that service

providers might refuse to serve LGBTQ individuals,

including service members, anti-discrimination laws

and policies are vital to protecting them from being

denied access to these vital services. Requiring an

opt-out of these anti-discrimination requirements

would threaten the ability of LGBTQ service

members and their families to access vital

government-funded services.

LGBTQ Service Members May Be

Stationed In Remote Areas With Few

Service Providers, Making It Critically

Important

That

Private

Entities

Contracting With The Government

Cannot Discriminate Against Them

For many LGBTQ people, local attitudes and antidiscrimination protections are so important that they

and their families choose to relocate to areas that are

less hostile to them or with such protections in place.

See David Leonhardt & Claire Cain Miller, The

Metro Areas With the Largest, and Smallest,

Gay Populations, N.Y. Times: TheUpshot (Mar. 20,

2015), https://www.nytimes.com/2015/03/21/upshot/

the-metro-areas-with-the-largest-and-smallest-gaypopulation.html. A 2017 poll by American Progress

reported that 19.1% of LGBTQ individuals surveyed

had “[m]ade specific decisions about where to live” to

avoid discrimination. Sejal Singh & Laura E. Durso,

Center for American Progress, Widespread

Discrimination Continues to Shape LGBT People’s

Lives in Both Subtle and Significant Ways (May 2,

2017),

https://www.americanprogress.org/issues/

lgbtq-rights/news/2017/05/02/429529/widespreaddiscrimination-continues-shape-lgbt-peoples-livessubtle-significant-ways/. This same study reported

that 13.2% of people surveyed had “[m]ade specific

decisions about where to work” to avoid

discrimination. Id. And 11.7% had “[m]oved away

from a rural area” for that reason. Id. Utah’s

experience illustrates this phenomenon. When Utah

passed a law prohibiting housing and employment

discrimination on the basis of sexual orientation,

LGBTQ people from Idaho, Montana, and Wyoming

started moving to Utah to take advantage of the

protections. Leonhardt & Miller, supra.

But because service members generally cannot

choose where they are stationed, and many military

bases are located away from populated areas, military

families live in areas where a substantial majority of

the local civilian population may not share their

cultural background or religious views. Inevitably,

therefore, many LGBTQ military families will be

stationed in areas where local attitudes towards

same-sex relationships, marriage, and child raising

may be less accepting than the national mean. See

Avichai Scher, Gay in Rural America: Up to 5 percent

rural

residents

are

LGBTQ,

report finds, NBC News (Apr. 12, 2019),

https://www.nbcnews.com/feature/nbc-out/gay-ruralamerica-5-percent-rural-residents-are-lgbtq-reportn993936.

Further, military installations are frequently

located in remote areas in which the government may

rely on only a few private service providers to provide

critical services to the community; if those few service

providers can refuse to work with LGBTQ people, the

impact on LGBTQ military families will be

substantial. Even in places with favorable local

attitudes towards LGBTQ persons and families, the

risk of discrimination remains acute if the few private

entities providing government services do not share

those views. As a result, anti-discrimination rules are

essential to protect LGBTQ military families from

harmful discrimination and ensure they have equal

access to services.

The Need For Anti-Discrimination

Protections Is Acute In The Adoption

And Foster Care Context, Because

LGBTQ Families Frequently Suffer

Discrimination From Such Service

Providers

1. In Many Places, LGBTQ Families

Still

Face

Discrimination

Adoption And Foster Care Services

The need for anti-discrimination protections like

the ones challenged here is particularly acute because

in many places, LGBTQ families still face

discrimination in their quest to adopt or foster

children. “Mounting research evidence suggests that

sexual minorities are vulnerable to significant and

seemingly unjustified obstacles in their efforts to

become foster and adoptive parents.” Abbie E.

Goldberg, et al., LGBTQ individuals’ experiences with

delays and disruptions in the foster and adoption

Process, 106 Children & Youth Services Review 1

(Aug.

16,

2019),

https://wordpress.clarku.edu/

agoldberg/files/2019/09/Goldberg-Frost-Miranda-andKahn-2019-CYSR-Disruption-and-delays-LGBTQ.pdf.

A prospective parent’s success at adopting or fostering

is highly dependent on social workers who may

possess negative attitudes towards LGBTQ

individuals or believe that LGBTQ families cannot

create a suitable environment to raise children. Id. at

1-2. LGBTQ families may have their applications

rejected or may simply not be notified about children

who need a placement. Id. at 2. In fact, in a “2011

national survey of 158 gay and lesbian adoptive

parents, nearly half of respondents reported

experiencing bias or discrimination from a child

welfare worker or birth family member during the

adoption process.” Frank J. Bewkes, et al., Center for

American Progress, Welcoming All Families;

Discrimination Against LGBTQ Foster and Adoptive

Parents

Hurts

Children

(Nov.

20,

2018),

https://www.americanprogress.org/issues/lgbtq-rights/

reports/2018/11/20/461199/welcoming-all-families/.

2. Permitting An Opt-Out Of AntiDiscrimination Laws And Policies On

The Basis Of Religious Views Will Be

Acutely Felt By LGBTQ Military

Families

The likelihood of such discrimination is even more

acute in areas where there are not multiple agencies

that the government contracts with to provide

services. This makes LGBTQ service members and

their families particularly vulnerable if government

contractors can opt-out of anti-discrimination rules.

Because many remote areas where such families may

be stationed are served by only a few entities, the

unwillingness of those entities to serve LGBTQ

families would impede the ability of military families

to access such services at all, imposing significant

burdens on them.

Even apart from discrimination, several factors

may limit the availability of adoption or foster

agencies to serve service members and their families.

As Petitioners themselves acknowledge, an agency

might deny service for a variety of reasons, “[f]or

example, an applicant might live too far away, or the

agency might have a waiting list.” Pet’rs’ Br. 8

(citations omitted). Access to an agency may also be

limited for reasons related to a child’s disability or a

parent’s race, such as for Native American children

and parents. Id. at 28. An agency’s willingness to

make a placement may also be geographically limited

by state regulation requiring frequent face-to-face

meetings. For example, Georgia requires foster

agencies to “[m]aintain a minimum of monthly faceto-face contact with the child . . . in the foster home.”

Ga. Div. of Family & Children Servs., Foster Parent

Manual

(2017),

http://fostergeorgia.com/

wp-content/uploads/2017/09/Georgia-Foster-ParentManual-September-2017.pdf. In areas served by only

a few agencies, permitting sexual orientation

discrimination on top of these practical obstacles may

leave LGBTQ military families unable to adopt or

foster altogether.

Because of these limitations, permitting agencies

to turn away LGBTQ families may result in those

families being unable to find an agency willing to

place a child in their area.

For example, in

geographically large Texas with a large military

population, where State law permits the denial of

services “under circumstances that conflict with[] the

provider’s sincerely held religious beliefs,” Tex. Hum.

Res. Code Ann. § 45.004(1) (2017), there are only a

few agencies that will serve LGBTQ families, and

prospective parents may live far away from them. See

Bewkes, supra (map of nondiscrimination policies

posted online by child placing agencies in Texas). For

U.S. Army soldiers stationed at Fort Bliss—the

Army’s second-largest base with nearly 40,000

soldiers and over 40,000 family members—near El

Paso, the nearest explicitly LGBTQ-affirming childplacement agency is 348 miles away. Id. And a family

from Del Rio or San Angelo (home of Goodfellow Air

Force Base) might have to drive over 150 miles to find

an inclusive placement agency in San Antonio. See

id.

Consequently, because LGBTQ service members

are unable to choose to live only in places with

tolerant local attitudes, and because of the paucity of

options for adoption or foster care services in many

areas where service members are stationed, antidiscrimination laws provide them and their families

vital protection. Permitting a religious opt-out to

generally applicable anti-discrimination laws and

government contracts would expose these families to

discrimination that may prevent them from building

a family and/or assisting a needy child. Indeed, by

giving the few or sole entities that provide such

services a constitutional right to discriminate based

on the characteristic of prospective adoptive or foster

parents (be it based on race, gender, religious, sexual

orientation, or other protected characteristics), any

individuals and couples subjected to discrimination in

those

locations—including

LGBTQ

service

members—could face insurmountable barriers to

adopting or fostering children altogether.

The

prospect of exposure to this discrimination impairs

the military’s ability to recruit and retain the best

candidates and harms morale among active-duty

service members, consequently hindering the

military’s ability to carry out its mission.

3. Any Opt-Out Of Anti-Discrimination

Laws Or Contractual Provisions Also

Causes Irreversible Dignitary Harms

To LGBTQ Service Members And

Their Families.

Even for LGBTQ service members who are

ultimately able to adopt or foster a child, permitting

discrimination by agencies causes serious dignitary

harms, beyond just the need to wait longer or drive

farther. This Court has consistently recognized “the

harm to dignity that discrimination causes,” that is

“distinct from the more ‘tangible’ harm of being

unable to access a particular benefit or entitlement.”

Marvin Lim & Louise Melling, Inconvenience or

Indignity?

Religious

Exemptions

Public

Accommodations Laws, 22 J.L. & Pol’y 705, 712

(2014). The Court has recognized the dignity harm

inherent in being turned away from public

accommodations, most famously in Heart of Atlanta

Motel v. United States, 379 U.S. 241 (1964), “where

the Court upheld the constitutionality of the Civil

Rights Act’s prohibition of discrimination in public

accommodations,”

and

“affirmed

that

‘the

fundamental object of Title II [of the Act] was to

vindicate ‘the deprivation of personal dignity’.’” Id.

(citing Heart of Atlanta). The irreversible nature of

dignity harm has been articulated by this Court also

in the context of gender,12 disability,13 and civil rights

generally.14

The harms inherent in sexual orientation

discrimination are even more devastating when

individuals face such discrimination while trying to

adopt or foster. As this Court recognized in Obergefell

Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984) (sex

discrimination “thereby both deprives persons of their individual

dignity and denies society the benefits of wide participation in

political, economic, and cultural life.”).

See Tennessee v. Lane, 541 U.S. 509, 537-38 (2004)

(upholding the Americans with Disabilities Act because the

Court recognized the dignity harm suffered by persons with

disabilities).

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918

(1982) (recognizing the civil rights fights and civil war was about

dignity as well as equality).

v. Hodges, “certain personal choices” are “central to

individual dignity and autonomy, including intimate

choices that define personal identity and beliefs.” 135

S. Ct. 2584, 2597 (2015). The choice to take children

into one’s home through adoption or fostering is one

such personal choice, and being discriminated against

in trying to create a fulfilling family life is a serious

and irreparable harm to the “individual dignity and

autonomy” of LGBTQ individuals.

In the case of discrimination in adoption and foster

care, “[t]he specter of stigma can create ongoing

anxiety for LGBTQ persons,” including “heightened

concerns regarding the security of their placement

due to the possibility for discrimination” and “anxiety

about the possibility or probability for heterosexist

discrimination,” Goldberg, et al., supra, at 2. These

anxieties accompany discrimination throughout the

process of fostering children, even for families that

navigate the process successfully.

Permitting agencies to deny service to LGBTQ

service members and their families would inevitably

subject them to “humiliation, frustration, and

embarrassment” experienced on account of their

identity. Heart of Atlanta Motel, 379 U.S. at 291-92

(Goldberg, J., concurring) (quoting S. Rep. No. 88-872,

pt. 1, at 16 (1964), as reprinted in 1964 U.S.C.C.A.N.

2355, 2370). The “injury and indignity” of such

discrimination, United States v. Windsor, 570 U.S.

744, 768-69 (2013), would alienate LGBTQ service

members from their local communities and relegate

them to being second-class citizens compared to the

heterosexual service members alongside whom they

serve.

As explained below, providing constitutional

sanction to such discrimination against LGBTQ

service members and their families would not only

undermine the ability of these service members to

build a strong, supportive family life for themselves

or to try to provide a temporary stable home for

children in need—it would undermine the long-term

national security interests of the United States.

Subjecting service members and military families to

increased burdens and dignitary harms as the price of

military service would harm morale and military

readiness, and frustrate recruitment and retention,

all at a cost to the military’s important mission.

D. Permitting An Opt-Out To Any AntiDiscrimination

Requirements

LGBTQ Service Members Will Harm

Morale And Retention, And Impede The

Military’s Mission

The rule Petitioners propose, which would permit

religious organizations providing government

services to disregard generally applicable antidiscrimination requirements on the basis of a

religious objection, would expose LGBTQ military

families to the threat of discrimination in a wide

range of services provided through government

contracts. Worse, under Petitioners’ rule, cities and

states could not refuse to contract with organizations

that explicitly provide services in a discriminatory

manner.

Requiring an opt out from generally applicable

anti-discrimination requirements would have an

outsized effect on LGBTQ military families. Faced

with discrimination, service member moral would

suffer, as would families—the “key element” to

military recruitment and retention. Faced with being

relocated to areas where discrimination might impede

them from accessing vital services, numerous LGBTQ

people are likely to be discouraged from enlisting or

continuing their service.

This reality would have a direct effect on military

readiness. The military has a compelling interest in

recruiting and retaining the best possible service

members. See Grutter v. Bollinger, 539 U.S. 306, 308

(2003) (recognizing that “a highly qualified, racially

diverse officer corps is essential to national security”).

And LGBTQ members now serve in highest-levels of

military: Major General Tammy Smith (first openly

gay general officer); Patricia Rose (Major General,

U.S. Air Force (Ret.); former highest ranked LGBTQ

service member); Maj. Gen. Randy S. Taylor (Chief of

Staff, U.S. Strategic Command); and Kristen Beck

(former U.S. Navy SEAL).

But knowing they may be stationed in areas where

they are treated like second class citizens and unable

to access necessary government services, many

qualified LGBTQ candidates are likely to turn away

from military service—less willing to join, more likely

to leave. “The [military] understands that in order to

attract and retain top quality soldiers, it must provide

a quality of life comparable to that in the civilian

community.” Joanne Marshall-Mies, David Westhuis

& Richard Fafara, US Army Morale, Welfare and

Recreation (MWR) Programmes: Links to Readiness

and Retention 3, Res Militaris No. 3 (2011),

http://resmilitaris.net/ressources/10144/30/res_milita

ris_-_us_army_morale__welfare_and_recreation__

mwr__programmes.pdf. Even with that commitment,

meeting military recruiting goals can be challenging.

Meghann Myers, Report: Recruiting challenges

might have pushed the Army’s end strength plans back

a few years, Army Times (Feb. 7, 2019),

https://www.armytimes.com/news/your-army/2019/

02/07/report-recruiting-challenges-might-havepushed-the-armys-end-strength-plans-back-a-fewyears/ (noting that a recruiting shortfall as of 2018

means that the Army may not be able to meet its 2022

strength goals until 2025). The military’s ability to

offer a high quality of life to recruits is undermined

by the threat that service members will be stationed

in areas where they will be discriminated against

while trying to access fundamental services.

Additionally, discrimination against LGBTQ

service members hurts the military’s efforts to keep

its members mentally and emotionally satisfied, and

at the top of their game. Military morale closely

aligns with feelings of worth and importance. See,

e.g., Ted Thornhill & Associated Press, America’s

rusting nuclear arsenal: Behind the blast doors

at USAF bases that reveal aging weapons and

low morale of missile crews, Daily Mail (July 8,

2014),

http://www.dailymail.co.uk/news/article2684493/The-problems-nuclear-Behind-scenes-USarmy-bases-reveal-ageing-weapons-low-moralemissileers.html. As one defense consultant put it,

“[o]ne of the reasons for . . . low morale is that [service

members] feel unimportant, and they are often

treated as such, very openly.” Id. The military’s

experience under DADT demonstrates that disparate

treatment—and its consequent effect on morale—has

a direct effect on recruitment and retention. DADT

“cause[d] many [LGBT veterans] to decide not to

reenlist and continue their service when they

reach[ed] the end of their tours of duty or, in the case

of officers, resign their commissions at the end of their

obligated service.” Gary J. Gates, Williams Institute,

Effects of “Don’t Ask, Don’t Tell” on Retention among

Lesbian, Gay and Bisexual Military Personnel 1 (Mar.

2007), https://williamsinstitute.law.ucla.edu/wpcontent/uploads/LGB-Military-DADT-Mar-2007.pdf.

The same study found that while DADT was in place,

“an average of nearly 4,000 [lesbian, gay, and

bisexual] military personnel each year on active duty

or in the guard or reserves would have been retained

if they could have been more open about their sexual

orientation.” Id.

When members of the military feel ignored or

unimportant, or that they must hide their sexual

orientation, morale suffers. Being forced to live in

places where they are at risk of being discriminated

against by providers of vital government services will

lower morale among LGBTQ service members. And

service members who feel the need to conceal their

sexual orientation experience higher rates of

depression and PTSD. Goldbach Study at 2. LGBTQ

people thus will leave the military, or not join,

exacerbating personnel strength problems that are

already present.

The harms from discrimination and the denial of

service are irreparable, as this Court has recognized.

See Heart of Atlanta Motel, 379 U.S. at 291-92

(Goldberg, J., concurring) (“The primary purpose of

[anti-discrimination laws], then, is to solve this

problem, the deprivation of personal dignity that

surely accompanies denials of equal access to public

establishments.” (quoting S. Rep. No. 88-872, pt. 1, at

16, as reprinted in 1964 U.S.C.C.A.N. at 2370)). And

the indignity of being refused essential services on the

basis of sexual orientation15 is especially acute when

While this case is about sexual orientation

discrimination, it is difficult to see how any ruling permitting an

a service member is discriminated against, not by

another private individual, but by an organization

acting on behalf of the very government whose

principles service members sacrifice to defend.

Government contractors located in places that

prohibit discrimination should not be allowed to make

a family’s life more complicated, expensive or less

dignified while their spouse or mother or father is

deployed. Similarly, a member should not return

from the battlefield to find that they and their spouse

cannot adopt or foster a child without facing

discrimination.

For all these reasons, recognizing a right to

discriminate against LGBTQ service members on the

basis of their sexual orientation would frustrate profamily military policies and, as a result, damage

morale and discourage recruitment and retention.

Being forced to relocate to an area where they have

unequal access to basic government-funded services

would make it more difficult for even the most

committed individuals to carry out their

responsibilities, thus impeding military readiness

and as a result U.S. national security.

CONCLUSION

LGBTQ service members and their families are

vital to military success. Removing obstacles to

building a fulfilling home life improves the well-being

of individual service members, and the happiness of

exception to generally applicable anti-discrimination laws and

government contracts could be limited to same-sex marriage or

even sexual orientation.

A ruling for Petitioners would

inevitably subject other service members to discrimination based

on race, religion, gender, disability, or even their country of

birth.

their families, and consequently the effectiveness of

the military overall.

By contrast, permitting

government contractors to opt out of serving LGBTQ

military families impairs those vital goals. When the

government can ask Americans to sacrifice for their

country but is compelled to authorize its agents to

treat some of them as second-class citizens, it impairs

the overall ability of the military to recruit and retain

the best people, and that affects military readiness

and effectiveness. A result in Petitioners’ favor would

undermine the military and should be avoided.

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

PETER PERKOWSKI

MODERN MILITARY

ASSOCIATION OF

AMERICA

1725 Eye Street, NW

Suite 300

Washington, DC 20006

(202) 328-3244

MICHAEL E. BERN

Counsel of Record

GEORGE C. CHIPEV

L. ALLISON HERZOG

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

michael.bern@lw.com

Counsel for Amici Curiae Secretaries Ray Mabus,

Deborah Lee James, and Eric Fanning, and the

Modern Military Association of America

August 20, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.