When the judges – like many of us – got up late Tuesday night to watch the election return, it was hard to tell when they went to the virtual bench on Wednesday morning to hear verbal arguments on a major case in where there was a conflict between religious freedom and law Guidelines for the protection of LGBTQ rights. When considering a similar dispute two years ago, the judges decided in the case of a Colorado baker who refused to bake a custom cake to celebrate a same-sex wedding because he believed it would violate his religious beliefs, for the baker without deciding whether to bake the cake would violate his First Amendment rights. After nearly two hours of debate on Wednesday in Fulton versus City of Philadelphia, it once again appeared that the court could rule in favor of the challenger without necessarily making a full statement on religious rights and the First Amendment.
The lawsuit in court on Wednesday was filed by Catholic Social Services, a care organization affiliated with the Archdiocese of Philadelphia, and two foster parents. CSS works with the City of Philadelphia by certifying potential foster parents. However, the organization says that due to his Catholic beliefs, it is not possible to certify unmarried or same-sex married couples as foster parents. When city officials learned in 2018 that CSS would not certify same-sex couples, the city council ordered the city council, which operated the care system, to cut off transfers to CSS. CSS went to the federal court in 2018 and argued that the city’s action violated CSS’s religious freedom. Both a federal district court and the US 3rd Circuit Court of Appeals denied CSS ‘request for an order requiring the city to resume transfers to the organization.
During the dispute on Wednesday, the discussion went back several times to whether CSS was acting as the government’s contractor, which would give the city more leeway in regulation. Jeffrey Fisher, the Stanford law professor who argued on behalf of two Philadelphia area nonprofit groups working to defend city politics, told judges that the only thing that matters is whether the government’s position is appropriate, as CSS a government contractor.
Chief Justice John Roberts repeated this point in his questions to Lori Windham, who argued on behalf of CSS. Roberts admitted that the CSS case concerned religious rights that contradicted the 2015 Obergefell v. Hodges recognized right to same-sex marriage. However you think tensions should be resolved, Roberts said, shouldn’t the city find the balance it wants in setting terms for its own care program?
Justice Elena Kagan seemed to agree that the city should have more leeway in dealing with contractors. She asked Windham about a hypothetical state that outsourced the operation of its prisons to private companies, and wanted to impose a requirement that none of the private company employees be allowed to use drugs. Couldn’t the government refuse, she asked, a company that said it wanted to be able to use peyote, a hallucinogenic drug used by some Native Americans in religious ceremonies?
Judge Clarence Thomas suggested the case involved both contractual relationships and licenses where the city would have less leeway.
Windham responded that licensing is indeed different and that the city has less leeway because the city is trying to regulate an area – nursing – where religious organizations have historically played a large role. She stressed that CSS is not trying to tell the city how to manage its internal affairs; Instead, the city tries to tell CSS how to manage its internal affairs.
Justice Samuel Alito clearly agreed with CSS. He told Neal Katyal, the attorney who represents the city, “If we’re being honest about what’s really going on here,” the point is not to ensure that same-sex couples in Philadelphia have the opportunity to be foster parents. Rather, Alito claimed that Philadelphia “could not stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view of marriage.”
Both Alito and Justice Brett Kavanaugh stressed that CSS has never turned away a same-sex couple seeking to serve as foster parents, and that city policies could result in some children missing out on the opportunity to be placed with foster parents. Kavanaugh added that while the court appreciated the “stigmatic harm” same-sex couples would experience as a result of CSS policies, “it must strike a balance that also respects religious beliefs”. “What I fear here,” said Kavanaugh, “is that the absolutist and extreme position would require us to withdraw the promise of respect for religious believers.”
The judges also focused on whether there were exceptions to the city’s non-discrimination policy, or whether it was instead a policy protected by the 1990 court ruling in the Employment Division against Smith that state action was not against the free Constitution violate exercise clause as long as they are neutral and apply to everyone. Hashim Moopan, who acts as an advisor to the U.S. Attorney General, argued for the federal government, stressing that the city both discriminates and allows other types of discrimination in the care system. For example, the city can take into account factors such as race or disability when placing children with foster parents and allow agencies to focus their work on families with specific ethnic groups.
Katyal and Fisher pushed back, distinguishing between the process of screening potential foster parents and the process of placing children with those foster parents. While reviewing potential foster parents, Katyal told Justice Neil Gorsuch that the city’s Fair Practices Ordinance prohibits any exceptions.
But by the time the city gets to the point where it’s ready to house foster children, it’s a different environment, Fisher stressed. When asked by Gorsuch whether the court should consider the mediation phase exceptions in deciding whether to apply Smith, Fisher replied, “Smith did not say that the mere availability of individual treatment in the air was sufficient to fail a law generally to make applicable. What Smith is asking, Fisher explains, is actual “different treatment” of religion.
Alito appeared to be suggesting that the judges, as the challengers suggested, override the court’s decision in Smith. He acknowledged that the court does not usually rule constitutional issues when it is not necessary. However, he implied that the “complicated questions” about possible exemptions from non-discrimination policies and whether CSS was a contractor suggest that Smith has no “stability” – and should presumably be overridden.
The court’s newest Justice, Amy Coney Barrett, seemed less enthusiastic about overriding Smith. If you are correct that you could get your way under Smith, she asked Windham, why should we override it and what would you replace it with?
Other judges seemed to share Barrett’s lack of appetite for overriding Smith, and instead focused on more practical concerns – specifically what a decision for CSS might mean for other religious objections. For example, would a decision in favor of CSS allow an agency to refuse certification of interracial couples? In response to a question from Barrett, Windham said the Supreme Court had made it very clear that the government had a strong interest in eradicating racial discrimination.
Both Breyer and Kagan were clearly frustrated with the proposal to treat racial discrimination differently than discrimination based on sex or LGBTQ. Moopan countered, however, that the court had explicitly stated that “race is unique in the constitutional history of this country and the elimination of this type of racial discrimination is a particularly unique and compelling concern”.
Alito was less concerned. “Didn’t we in Obergefell say that there are honorable reasons to continue to oppose same-sex marriage?” However, the court never said anything similar about interracial marriage.
Breyer tried to broker a compromise in which CSS would not have to advocate same-sex marriage, but would simply weigh up whether a same-sex couple would offer an adequate nursing home. Windham turned down this suggestion, saying it would still violate CSS’s religious beliefs as a home study is written confirmation of relationships in that home. There’s no case that says the government can force language as long as the speaker can add a disclaimer at the end.
Sotomayor took up Breyer’s suggestion towards the end of the dispute and asked Fisher to offer a compromise that would “do no real harm” to all of the various legal theories involved in the dispute. Fisher endorsed Breyer’s proposal, arguing that if CSS fears it is advocating same-sex marriage, it can make it clear that it is following state law and not pretending to speak for itself.
When Roberts announced just before noon on Wednesday that the dispute was over, it appeared that CSS and the foster parents could likely get at least five votes for a decision in their favor, even if it wasn’t clear what could be the basis for one Be decision? A decision in this case is expected sometime next year.
This article was originally published by Howe on the Court.
Amy Howe, Argument Analysis: Judges Agreeing with Faith-Based Care Authority in Anti-Discrimination Dispute,
SCOTUSblog (November 4, 2020, 8:36 p.m.), https://www.scotusblog.com/2020/11/argument-analysis-justices-sympathetic-to-faith-based-foster-care-agency-in-anti -diskriminierungsstreit /