SCOTUS Grants Cert in the Catholic Adoption Services Case

The Court looks ready to make a major change in its free exercise jurisprudence

|The Volokh Conspiracy |

The Roberts Court has been on a tear in church-and-state cases lately. Last term, the Court decided an important case on public religious displays, The American Legion v. American Humanist Association. This term, the Court will decide a case on Blaine Amendments, Espinoza v. Montana Dep't of Revenue (which I discussed in an earlier post); yet another case on the Contraception Mandate, Little Sisters of the Poor v. Pennsylvania; a pair of cases on the ministerial exception, St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru; and a case on the personal liability of government officials under RFRA, Tanzin v. Tanvir. For a purportedly minimalist bench, the Court seems quite ready to rule on controversial law-and-religion issues.

Late last month, the Court granted cert in another church-and-state case, Fulton v. City of Philadelphia, which has the potential to overshadow all the others. In Fulton, Catholic Social Services (CSS) challenges Philadelphia's decision to exclude the charity from the city's adoption program because of CSS's policy of refusing to place children with same-sex and unmarried heterosexual couples. Philadelphia argues, among other things, that CSS's policy violates the city's non-discrimination ordinance. In response, CSS argues that the city's action violates the First Amendment's Free Exercise Clause. In essence, CSS maintains that its religious convictions make compliance with the anti-discrimination ordinance impossible and that the city should grant it an exemption, or accommodation, for that reason.

What makes Fulton so significant, potentially, is this. The cert petition specifically asks the Court to revisit its landmark 1990 decision in Employment Division v. Smith, which held that the Free Exercise Clause does not entitle religious believers to exemptions from "neutral" and "generally applicable" laws. Under Smith, religious believers have an obligation to comply with such laws, just like everybody else. Only where laws are not "neutral" and "generally applicable"—where, for example, laws target religious believers for disparate treatment—can religious believers make claims for accommodations. Even then, accommodations are not assured. The state can still burden the exercise of religion if it passes the so-called "compelling interest" test: The state can burden the exercise of religion where it has a compelling reason for doing so and has chosen the least restrictive means.

Smith is widely understood to have narrowed the circumstances in which religious believers can claim accommodations under the Free Exercise Clause. The fact that the Court has granted a petition that specifically asks the justices to reconsider the case is thus very significant. Even more: in a statement last term, four justices—Alito, Thomas, Gorsuch and Kavanaugh—hinted strongly that they were ready to revisit Smith, which, they said, had "drastically cut back on the protection provided by the Free Exercise Clause." Quite possibly, the Court's grant in Fulton signals that the Court is ready to overrule Smith.

If the Court were to overrule Smith, it would most likely hold that the compelling interest test applies to all claims for religious accommodations, including CSS's. (This was, in fact, the law for decades before Smith). This, too, makes Fulton a significant case. The Court would have to decide whether Philadelphia's interest in ending discrimination based on sexual orientation, in this context, outweighs the right of CSS to conduct itself according to its sincere religious convictions. So far, the Court has carefully avoided such questions, which could take the Court where it would rather not go. The Court had a chance to address a similar issue two years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the wedding vendor case, but ultimately ruled on narrow grounds that made resolution of the issue unnecessary.

The Court might find a way to avoid the issue in Fulton as well. In that event, Fulton will be another one of the Court's narrow, fact-bound church-and-state rulings. But it's also possible that the case will be a major decision that makes other Roberts Court church-state cases pale in comparison. The Court won't hear the case until next term, so there's plenty of time to speculate! Meanwhile, for more on what the Fulton grant may mean, have a listen to the latest Legal Spirits podcast I recorded this week with my colleague at the St. John's Center for Law and Religion, Marc DeGirolami.

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  1. Empl. Div. v. Smith was one of Scalia’s finest hours, and certainly his best majority opinion.

    “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S. at 167 — contradicts both constitutional tradition and common sense.”

    It’s hardly shocking that today’s nouveau conservatives, and especially Alito, would seek to undo it.

    1. I dont share your (what seems to be) antipathy towards the so-called “nouveau” conservatives, (nor do I share Bernard11’s unbearable snark and indignation), but I find myself agreeing with you here.

      I always thought Smith was a great ruling despite the academy’s distaste for it.
      Overruling Smith would require the court to fine tune and specify what constitutes a compelling government interest. They have been notoriously vague about this, especially where (in situations like this case) dicey balancing tests of heartfelt interests are required.

      I often find myself agreeing with Alito so maybe he will find some ingenuous way to carve out a narrow rule, or perhaps Roberts will not want to overturn out of fealty to Stare Decisis.

    2. I wouldn’t say it was one of his worst hours, he had some pretty bad hours. But it wasn’t that great.

      What’s the point of an explicit constitutional right, if not to get in the way of the government doing something it might otherwise be able to do? The very point of a right is to set up areas where individual’s right to make decisions trump’s the government’s.

      1. And what if my religious beliefs compel me to have sex with 10 year olds? Or refuse to pay income tax? And don’t laugh; there are religions that teach both of those things. I’m not aware of any that require me to drive 80 miles an hour through a school zone, but give it time.

        We can’t have a system in which everyone has an individual veto over any law, whether religious or otherwise. Further, as an atheist, my conscience gets no exemptions whatsoever, no matter how unconscionable I may find any particular law to be.

        I usually didn’t agree with Scalia, but this one time I think he got it right.

        1. Individual actions which impact others are no more justifiable than any other harm or aggression. Your examples are specious.

          1. Would that there were a bright line clearly delineating what does, and does not, impact others for purposes of the law.

            If someone isn’t wearing a motorcycle helmet, and suffers severe head injuries that will cost a million dollars in lifetime medical care (almost certainly borne in part by the taxpayers), is that enough of an impact (pardon the pun) to justify helmet laws? How about if a million dollars worth of end of life medical care is necessitated by a lifetime of ingesting junk food and carcinogens?

            Part of my objection to libertarianism (I have lots of others) is that that line isn’t nearly as clear as you think. In an urban society, it’s sometimes difficult to step out your front door without impacting someone.

            With that in mind, take another look at my examples and see if that changes anything for you.

            1. “If someone isn’t wearing a motorcycle helmet, and suffers severe head injuries that will cost a million dollars in lifetime medical care (almost certainly borne in part by the taxpayers), is that enough of an impact (pardon the pun) to justify helmet laws? How about if a million dollars worth of end of life medical care is necessitated by a lifetime of ingesting junk food and carcinogens?”

              Not at all. The impact on taxpayers in your examples isn’t caused by the decision not to wear a motorcycle helmet or eat junk food, it’s caused by the decision of taxpayers to pay for certain medical treatments.

              “Part of my objection to libertarianism (I have lots of others) is that that line isn’t nearly as clear as you think.”

              Sure it is.

            2. jph12, the practical problem is that we are not barbarians, so we’re not going to leave a crash victim to die in the streets. That type of jungle savagery is just not culturally acceptable. Somebody is going to pay for his health care.

              To bring this back on track, if one agrees with the premise of anti-discrimination laws — that discrimination is enough of a problem to justify a state solution, or, at bare minimum, at least the government itself should not discriminate — then why should those entities — religion — which are most responsible for the law being a necessity, being given a free pass? (And if you don’t agree with that premise, then the solution is to repeal the law in its entirety, not to give special rights to religion.)

              1. The government has no right to make you wear a helmet. Its a personal choice, government can only act to protect others from you.

                “Health care costs increase” would allow the government to require or ban just about everything.

              2. “jph12, the practical problem is that we are not barbarians, so we’re not going to leave a crash victim to die in the streets. That type of jungle savagery is just not culturally acceptable. Somebody is going to pay for his health care.”

                To some extent. Let’s not pretend that we give everyone the full suite of available medical treatment, regardless of cost or their irresponsibility. For example, according to Scrubs we take people off their place in the transplant list if they violate the rules. More importantly, how is this a practical problem justifying laws restricting behavior?

                Not to mention the argument that not wearing a helmet makes a person more likely to die on impact, thereby needing no medical treatment and saving taxpayers money. Could we pass a law prohibiting the wearing of helmets if that resulted in a net savings?

                1. Helmets only protect from hitting you head in a fall/spin out in any event.

                2. For the record, I am opposed to helmet laws, though I think it’s a closer question than you do, and I do so knowing that it will result in taxpayer funded medical bills.

                  That said, please remember that this conversation started over the question of whether there is a bright line between what does, and what does not, impact on other people. I think regardless of where each of us comes down on helmets, this conversation at bare minimum shows it’s not that bright a line.

                  And no, I don’t think we could pass a law prohibiting helmets if it were shown that more people would die and would therefore save the system money. Money is one factor but it’s not the only factor. It would be a huge cost savings if all handicapped infants were euthanized, but we don’t do that either, and for good reason.

                3. Medical professionals have a technical term for people who ride motorcycles without helmets: “Organ donors”. They’re actually doing the health care system a service.

                4. “That said, please remember that this conversation started over the question of whether there is a bright line between what does, and what does not, impact on other people. I think regardless of where each of us comes down on helmets, this conversation at bare minimum shows it’s not that bright a line.”

                  How so? I don’t care how bright a line is, you will almost always be able to find someone who can’t see it. That you disagree with the lines libertarians draw doesn’t mean the lines aren’t there. You just prefer different lines. That you and I would draw the lines in different places doesn’t make either of our lines any dimmer than they would be otherwise. You’ve already stated that you have lots of objections to libertarianism. Why would you be expected to agree with where they draw the lines any more than any of their other ideas.

                  1. Because the yardstick for determining what does, and does not, impact other people strikes me as entirely arbitrary. If you’re going to draw a line, you need to articulate why you drew it where you did.

                    Libertarians draw it in such a way as to minimize government intervention, but that’s more from a bias against government intervention than from a principled inquiry as to what really does have an impact on other people. Are you disputing that if the taxpayers are going to get stuck with a million dollar health care bill, that that has an impact on other people? I understand you may not think it should, but as you acknowledge the reality is that it will. So we’re then having a quibble over *what kinds* of impacts should be considered, rather than *whether* impacts should be considered.

                    1. “If you’re going to draw a line, you need to articulate why you drew it where you did.”

                      I articulated why you were wrong to claim that not wearing a helmet or eating junk food affected other people. You just don’t like it, just like you don’t like many other aspects of libertarianism.

                      “Libertarians draw it in such a way as to minimize government intervention, but that’s more from a bias against government intervention than from a principled inquiry as to what really does have an impact on other people.”

                      No it isn’t.

                      “Are you disputing that if the taxpayers are going to get stuck with a million dollar health care bill, that that has an impact on other people?”

                      I’m disputing what caused the impact. Taxpayers aren’t just magically stuck with health care bills.

                      “So we’re then having a quibble over *what kinds* of impacts should be considered, rather than *whether* impacts should be considered.”

                      No, I fully agree that society should consider whether they want to pay for injuries sustained by people who don’t wear helmets when they decide how much, and what type, of medical care to provide. But if they choose not to make exceptions, that doesn’t give them the right to place restrictions on individual behavior.

                    2. No, you didn’t. You moved the goalpost from “doesn’t impact other people” to “shouldn’t impact other people.” If the appropriate analysis is whether something impacts other people — and I’m not sure that is the appropriate analysis, but I’m going with it for sake of argument — then the question is whether it does, and not on whether you think it should.

                    3. “No, you didn’t. You moved the goalpost from “doesn’t impact other people” to “shouldn’t impact other people.””

                      No I didn’t. From the very beginning I’ve explained that the effect on other people is caused by their decision to pay for medical care, not his decision to ride without a helmet. If they want to make that decision, they get to live with the consequences. But they don’t have the right to make that decision then use their decision to place restrictions on individual behavior.

                    4. But that goes to *why*it affects them, not *whether* it affects them. You’re trying to shift the focus away from the simple yes or no question of whether other people are affected by paying for his medical bills. Even if I think your *why* analysis is spot on, it doesn’t change *the fact of* other people being affected. And it frankly reminds me of someone engaged in boorish behavior who then says, “It’s your fault for letting it bother you.” Human nature is to be bothered by boorish behavior, and human nature is to not let a crash victim die by the side of the road, and so it seems to me that your real argument is with human nature.

                      And yes, the fact that society is predictably going to respond to certain phenomena in certain ways absolutely does give it the right to legislate about it. Maybe not in every case, but if the stakes are high enough it does. That’s the whole point of the First Amendment not protecting someone shouting fire in a crowded theater. You could equally as well argue that the subsequent mayhem was not caused by the guy who shouted fire, but rather by the crowd’s reaction to it. Metaphysically you might even be right. Any civil or criminal proceedings brought against him will be successful anyway.

                    5. We’re both wrong, because I let you distract me from what the discussion was about. It wasn’t about whether it affected other people, it was about whether that effect was enough to justify intervention. Here’s your question.

                      “If someone isn’t wearing a motorcycle helmet, and suffers severe head injuries that will cost a million dollars in lifetime medical care (almost certainly borne in part by the taxpayers), is that enough of an impact (pardon the pun) to justify helmet laws?”

                      And here’s my response.

                      “Not at all. The impact on taxpayers in your examples isn’t caused by the decision not to wear a motorcycle helmet or eat junk food, it’s caused by the decision of taxpayers to pay for certain medical treatments.”

                      And the reason whatever the impact may be is not enough is because the motorcycle rider isn’t responsible for it, society is.

                      “And yes, the fact that society is predictably going to respond to certain phenomena in certain ways absolutely does give it the right to legislate about it.”

                      Were Southern states were justified in passing laws against interracial marriage because people didn’t like those? What about anti-gay laws–those used to pretty popular. I will never accept a standard that leaves our rights to popular whims.

                      “That’s the whole point of the First Amendment not protecting someone shouting fire in a crowded theater.”

                      You don’t have the right to falsely (key element) shout “fire” in a crowded theater regardless of whether there’s a First Amendment.

                    6. OK, we both agree that not every impact justifies state intervention. But some impacts cause more harm than others. A racist may not like having black people sitting at the table next to him at a restaurant, and a homophobe may not like that gays can get married, but he doesn’t suffer any real harm as a result. (And even if he did it would need to be counter-balanced against the harm caused to blacks and gays if he gets his way, so he should still lose.)

                      The public treasury does suffer real harm from paying for a lifetime of care for someone with massive head trauma. I’ll agree with you that the legislature has to show that there’s genuine harm before it passes a law.

                      I disagree that the distinction you’ve drawn about society choosing to pay for it is a relevant distinction, and I think we’re at an impasse on that issue. Yes, society could choose to allow him to die in the street, but the cost to society for doing that would counter-balance the monetary savings. Think for a few minutes about what it would be like to live in a society in which that happened. The level of raw cruelty and callousness that that would take is staggering, and it would seep over into other areas as well. In no time at all, it would be a society defined by its cruelty and callousness. Would you like to live there? Me neither.

                    7. “The public treasury does suffer real harm from paying for a lifetime of care for someone with massive head trauma. I’ll agree with you that the legislature has to show that there’s genuine harm before it passes a law.”

                      Do welfare payments harm the public treasury? Outlays for law enforcement or national security? Costs for park maintenance? Salaries for public officials and their staffs?

                      I don’t think so. Paying costs that you’ve committed to pay isn’t a harm. I’m not harmed when I make my rent payments, or student loan payments, or credit card payments.

                      “Yes, society could choose to allow him to die in the street, but the cost to society for doing that would counter-balance the monetary savings. Think for a few minutes about what it would be like to live in a society in which that happened. The level of raw cruelty and callousness that that would take is staggering, and it would seep over into other areas as well. In no time at all, it would be a society defined by its cruelty and callousness. Would you like to live there? Me neither.”

                      No, I wouldn’t want to live in your dystopian vision of world defined by cruelty and callousness. Who would? But (1) I disagree that would be the result and (2) regardless, government can’t bootstrap its way to additional power over people by voluntarily assuming additional responsibility, especially not when it’s just financial responsibility.

                    8. Y’all do know that emergency rooms turned away folks without insurance before Reagan passed a law on that in the 80s, right?

                      That “dystopian world” was only four decades ago, and was the status quo for 99% of human history.

                      And yeah, the government did ” bootstrap its way to additional power over people by voluntarily assuming additional responsibility”. Reagan literally signed a law that did just that.

                    9. “Y’all do know that emergency rooms turned away folks without insurance before Reagan passed a law on that in the 80s, right?”

                      Yes. And it wasn’t a dystopian world defined by cruelty and callousness.

            3. Part of my objection to libertarianism (I have lots of others) is that that line isn’t nearly as clear as you think. In an urban society, it’s sometimes difficult to step out your front door without impacting someone.

              There are edge cases, but not the ones you suggest.

              Drunk driving is one such edge case. Drunk driving per se does not harm people; it’s the accidents that do. But accidents are not inevitable outcomes of drunk driving; they’re just an elevated risk.

              But the risk of injuring oneself is not a tough call. If you volunteer to pay for taking care of the injured motorcyclist, then you have nobody to blame but yourself. You can’t pat yourself on the back and say, “I’m such a wonderful person that I’m doing this for you… and I demand you accommodate my desire to do it.”

          2. “Individual actions which impact others are no more justifiable than any other harm or aggression. Your examples are specious.”

            So you agree with Scalia too, because Catholic Adoption Services’ (CAS) actions to exclude certain parents because CAS’s actions obviously impact both the prospective adoptees and the prospective adoptive parents and other parties interested in the adoptions (whether a mother wanting to put her child up for adoption or extended family of the child). You can’t seriously argue that it doesn’t. I mean, the child isn’t a piece of property owned by CAS that it may dispose of or not as it wishes. By participating in the government program, their actions necessarily impact the rights of many others including, most immediately, the child.

            The child is deserving of the protections of the non-discrimination laws that society decided was necessary. If CAS disagrees, it can choose not to participate or it can convince enough people the law needs to be changed. That’s how our Constitutional democracy works.

            1. The child and parent have many other options besides Catholic Adoption Services. And in fact, effectively shutting down Catholic Adoption Services hurts gay parents, through the loss of capacity.

              Think of it like this. There are 5 restaurants that sell food in a given area. One of the restaurants chooses not to sell beef due to their religious values. A state law is passed which mandates all restaurants sell beef. This forces the restaurant to close. If you wanted beef, there were 4 other options to go to. Now, there are still 4 other options, but all the people who went to the 5th restaurant now crowd into those 4, increasing wait times, and reducing service.

              1. Armchair,

                Funny how you avoid the most obvious analogy.

                Think of it like this. There are 5 restaurants that sell food in a given area. One of the restaurants (Bob Jones Diner) chooses not to serve black people another (David Duke’s Buffeter) chooses not to serve Jews. A law is passed which mandates that restaurants not discriminate against people based on race, religion or national origin (imagine!). This forces Bob Jones and David Duke to close. But now, after Bob Jones and David Duke restaurants close, everyone has to crowd into the remaining three restaurants increasing their customer base so they hire more cooks and extend their hours and expand their seating.

                If you are going to make the analogy, own it. Say you are against that law and you feel bad for Bob Jones and David Duke. But stop hiding behind “beef or chicken?”, it’s wimpy.

                1. Mostly because it’s not directly applicable for a number of reasons.

                  The biggest issue is this. I believe in a tolerant, respectful, multicultural community where people of different beliefs can exist together, without necessarily needing to accept and agree each others beliefs. I believe in respecting those beliefs. I believe gays should be able to marry, for a multitude of reasons, but I don’t believe they should be able to force someone into marrying them, if that person doesn’t believe in gay marriage. I think gay marriage and religious communities can live side by side, so long as they are both respectful of each others beliefs.

                  What I see recently however, is certain proponents of gay marriage attempting to force religious communities and individuals to accept their (gay marriage) beliefs, through legal means. Deliberately seeking out confrontation and attempting to force the issue, where it generally isn’t needed. And that is not good for a tolerant, respectful community. And it could backfire. Horribly.

                  Like I said, I support gay marriage. They should be able to suffer like the rest of us. (That’s a joke). But….if the “price” of gay marriage is that it forces people to renounce their religious beliefs, if it impedes the ability to foster and adopt children, if it demands that a Constitutionally-defined right for Freedom of Religion be violated….that’s a different question. If it demands that in order for gays to be able to marry, OTHER people need to give up their rights to practice religion, then that isn’t right.

                  Like I said, I believe the two can live side by side. That reasonable, acceptable accomodations can be made. If they can’t however, if you FORCE people to choose, religion or gay marriage…Gay marriage may lose everything it’s gained in the last 20 years.

                  1. Hrm…

                    if the “price” of [interracial] marriage is that it forces people to renounce their religious beliefs, if it impedes the ability to foster and adopt children, if it demands that a Constitutionally-defined right for Freedom of Religion be violated….that’s a different question. If it demands that in order for [bi-racial couples] to be able to marry, OTHER people need to give up their rights to practice religion, then that isn’t right.

                    Hrm…

                    if the “price” of [divorce and re-]marriage is that it forces people to renounce their religious beliefs, if it impedes the ability to foster and adopt children, if it demands that a Constitutionally-defined right for Freedom of Religion be violated….that’s a different question. If it demands that in order for [divorced people] to be able to marry, OTHER people need to give up their rights to practice religion, then that isn’t right.

                    If a Catholic adoption agency can look past a couple being an interracial couple made up of previously-divorced people without compromising their faith, I think they can compartmentalize this one too.

                    1. A Parade of horribles that doesn’t actually exist. Unlike the current situations

    3. “nouveau conservatives”

      What exactly did old school conservatives actually “conserve” in the last 50 years?

      Culturally and socially its been one rout after another in the courts starting with abortion. Gun rights sure, but little else has been saved. Even in Heller, scalia’s opinion was weak, the bare minimum of protection really.

      1. Bob from Ohio : “Culturally and socially its been one rout after another…”

        Are you the Rev. Arthur L. Kirkland in disguise? I think that’s his line.

        1. Naw. Bob and I have gone back and forth on this issue before. I would add to guns as a possible success story for conservatives, that no one takes wage and price controls seriously these days.

          It’s also common understanding amongst the more aware conservatives that the left has won the culture war, and now they are just going around shooting the survivors. This case is a perfect example of an attempted coup de grace.

          Frankly, I’m surprised that the Catholics haven’t folded on this, because abortion is the only thing where they are holding the line. I think the reason, though, is that Catholic Charities and the various non-profits the Church runs are a significant source of income.

          1. “wage and price controls” are not social or cultural but economic.

            1. I haven’t hear many economic arguments from the people advocating for living wage bills.

            2. Free market economics is as much cultural as it is economic. Likewise, intersectionality and leftism is as much about economics due to support for socialism/marxism as it is cultural. Thus the phase “cultural marxism”.

              1. By your definition, everything is cultural.

                1. The personal is political, yo.

              2. mad_kalak : “Free market economics is as much cultural as it is economic. Likewise, intersectionality and leftism is as much about economics due to support for socialism/marxism as it is cultural. Thus the phase “cultural marxism”.”

                With some minor adjustments this could be a valid point (vs a spittle-spraying rant). My advice? Drop “intersectionality” (??), give up on the cartoon references to “socialism / marxism”, and consider this :

                Your “free market economics” don’t exist in anything close to a philosophically pure form : Probably never has and definitely doesn’t now. Likewise, whatever you’re calling “socialism” this week is probably is built on a capitalistic economic base. That’s a little less certain because God alone knows what some people mean when they spew out the word “socialism”. (Fascism is even harder, but that’s another story)

                So the definition of these terms both in practice and polemics definitely has a cultural component….

                1. grb, I love this comment.

      2. Bob, does it occur to you that that’s because the culture has moved significantly to the left of where you are? You can’t expect conservative cultural results from a moderate to liberal culture. And on gun rights, the culture is actually significantly to your (and the Supreme Court’s) left, and it’s only a conservative majority on the Supreme Court that’s saving you on that issue.

        1. The Courts legalized abortion and unregulated porn before the culture shifted.

          In case you haven’t noticed, half the country repeatedly attempts to limit abortion, but the courts won’t let them, in part because old school conservatives won’t abandon stare decisis.

          Gun rights have popular majorities in much of the country too.

          1. Define “gun rights”. The number of people who support actual confiscation is teeny tiny; there are a few of them but not many. Most of the country supports bans on large magazines, background checks and waiting periods, all of which seem reasonable to me.

            And no, half the country does not repeatedly attempt to limit abortion; if you add the populations together of the anti-abortion states I doubt they would make up one-third of the population. Most Americans live in states that do not repeatedly attempt to limit abortion. If Roe v. Wade is overturned, most people will still live in places where abortion is legal (though perhaps with more restrictions); the high impact will be on poor women who live in rural South Texas.

            1. A majority of the US population supports a complete ban on abortions after the first three months per Gallup. [60%+ in second and 80+ in third trimester]. This has been consistent for 30 years.

              1. But that’s not what the right to life movement is trying for. They want a national ban from conception. And won’t be happy until they get it.

                1. Goals and achievements are separate issues.

                  Sure activists would still be unhappy but removal of the judicial yoke would permit real achievement in saving babies, at least in civilized parts of the country.

            2. ” The number of people who support actual confiscation is teeny tiny; there are a few of them but not many.”

              Strange, then, that all the Democratic candidates for President are running on actual confiscation.

              1. No Democratic candidate, to my knowledge, supports a flat ban on all guns.

                1. I skipped down to the parent post. I was about to respond plenty of the Democratic candidates support flat-out confiscation of (post income tax) wealth.

                  1. Sorry, I assumed that from the context it would be obvious I was talking about guns.

                    But unless your argument is that all taxation is theft — and if that’s your argument, I’ll tell you you’re nuts and have a nice day — then the quibble is over how much, and not over whether.

                2. I didn’t say, “a flat ban on all guns”. I said, “actual confiscation”. And they’re all in favor of actual confiscation of at least some guns, generally an arbitrary list that could be extended at will.

                  1. Brett,

                    You are still wrong. Biden does not from everything I have heard him say and from his stated positions on his campaign website. You will need a cite for that assertion. If you don’t have one, stop spreading lies.

                  2. Assuming that to be true (and I’m not sure that it is), the question is which specific weapons need to be legal for the government to be in compliance with the Second Amendment. And if your argument is that any ban on any type of weapon runs afoul of the Second Amendment, then we just disagree. I’m fine with a 30 year old who lives in his parents’ basement not having access to a nuclear warhead. Assuming you’re not crazy, you probably are too. So then the question becomes where that line gets drawn and not whether it exists.

  2. For a purportedly minimalist bench, the Court seems quite ready to rule on controversial law-and-religion issues.

    I think the word “purportedly” is all the explanation needed.

    In response, CSS argues that the city’s action violates the First Amendment’s Free Exercise Clause.

    Is participation in placing foster children a requirement of the Catholic religion? If not, how does exclusion from the program burden free exercise?

    1. “Is participation in placing foster children a requirement of the Catholic religion? If not, how does exclusion from the program burden free exercise?”

      Being a lawyer is also not a requirement of the Catholic religion. Do you doubt that a law that says “Catholics can’t be lawyers*” would be a burden on their free exercise? You could try to make the argument that it would just be an Establishment Clause violation, but penalizing someone for their religious beliefs seems like it would be a Free Exercise violation as well.

      * I understand that this is not an example of a neutral law of general applicability, which distinguishes it from non-discrimination laws. But that’s not the point being discussed, and on the plaintiff’s theory of the case is irrelevant to boot.

      1. Do you doubt that a law that says “Catholics can’t be lawyers*” would be a burden on their free exercise?

        No one is saying you can’t be a Catholic adoption agency.

        What the city is saying is that if you refuse to abide by their non-discrimination policy, they aren’t going to give you money for it.

        It’s like when I got married by a state officiant. Part of the woman’s job was marrying people, without respect to their race, religion, sex, national origin, etc. You paid the 25 bucks and had a valid marriage license? Then on behalf of the county recorder’s office where she worked, she’d marry you.

        Could a Catholic get that job? Sure. A Muslim? Sure. An atheist? Sure. But regardless of the person’s religion, they had to be willing to marry any valid couple that walked up, regardless of their personal beliefs.

        Someone saying “my Spaghetti-Monster beliefs means I won’t marry people of different hair colors” isn’t the city discriminating against folks from the Spaghetti-Monster church, it’s that person declaring that their own beliefs prevent them from taking the job.

        But that Spaghetti-Monster worshipper can go on being a marriage officiant, just not on the city’s dime. Has to find his own clients, rather then having the city funnel them to him.

        Just as CSS can go on being an adoption agency, just not on the city’s dime. And it has to find it’s own clients (people who want to adopt out their kids, people who want to adopt kids), rather then having the city funnel them to them.

          1. Exactly what? Here’s what I was responding to:

            “Is participation in placing foster children a requirement of the Catholic religion? If not, how does exclusion from the program burden free exercise?”

            You can tell because those are the lines I quoted. Now, a sensible reading of those two questions joined together is that bernard11 doesn’t think that anything could be a burden on free exercise unless it affected a requirement of the religion. I don’t think that’s correct, so I posted a counterexample (and even explicitly noted that my counterexample was distinguishable from the case under discussion). Nothing in EscherEnigma’s response addresses the question of whether something can be a burden on free exercise without restricting something required by the religion.

            1. jph12,

              Saying lawyers cannot be Catholic is not, I think, a free exercise claim, but would be an establishment claim.

              Eugene explains the difference in this article on school funding.

              https://www2.law.ucla.edu/volokh/equal.htm

              1. How so? I only took a brief skim, but this is what Eugene Volokh says about Free Exercise:

                “To begin with, this view is supported by the Free Exercise Clause, under which, Employment Division v. Smith tells us, “The government may not . . . impose special disabilities on the basis of religious views or religious status.””

                That certainly supports the view that prohibiting Catholics from being lawyers would be a free exercise violation. How could it not? It’s literally saying, if you practice your religion you can’t do something that you would otherwise be able to do.

        1. No one is saying you can’t be a Jewish Deli. We’re just saying if you don’t abide by the new state policy that all restaurants must serve pork products, the state just won’t give you a license to run a food establishment.

          That’s a perfectly neutral law. All food establishments must serve pork. It’s there to support the pork industry. A rational choice by the Government. But sure, Jews can still practice their religion.

          1. Armchair,

            This definitely does not implicate the free exercise clause. You are probably thinking of an establishment clause / equal protection claim.

            Muslim cabbies lost in court when they claimed they should be exempt from a law that required cabbies to accept all passengers, even if they were carrying liquor.

            (I also refer you to the Bob Jones Diner example above. Such anti discrimination laws generally survive I think. Of course, if the deli owners could show that the law was in fact aimed at running Jewish delis out of business, they clearly win. And, of course, it is basically unimaginable that any such “most sell pork” law would ever be passed.)

            1. So a few points.

              1. Free Exercise. When you make and/or enforce a new law that impedes the ability for a group to run a business or organization in accordance with their religious beliefs, it impedes their right to practice their religion, and it acts as religious discrimination. This isn’t an absolute right, by any means. But it should be considered. In the above example, passing such a law essentially made it impossible for Jews to run a deli (a traditional business they run) in accordance with their religious beliefs. And it’s importance to balance the needs of the public with the needs of the religious group.

              2. The Muslim cabbies case is actually a good comparison here. There, hundreds of complaints of an essential service (transportation from the airport) were being made. An essential service was effectively being cut off, with limited to no alternatives. With the current example adoption agency issue, there were zero complaints. Not a single Gay couple was denied service and unable to adopt/foster a child. If the Catholic agency dominated or monopolized the market, there may well be a case. But it did not. In such cases, reasonable religious accommodations should be granted.

              3. The country has a long history of reasonable religious accomodations, or accomodations for people’s religious beliefs. One of the most commonly known are the draft laws, which allowed certain people to limit the type of service they would do if drafted.

              4. Lastly, keep in mind, race is protected by constitutional amendment against Discrimination, as is religion. Sexual orientation is not protected by constitutional amendment.

              1. In the above example, passing such a law essentially made it impossible for Jews to run a deli (a traditional business they run) in accordance with their religious beliefs.
                Which would be bad.

                But that’s entirely different from a courthouse saying “the cafeteria contractor must include BLTs on the menu”.

                1. So after all this, you concede that the law requiring delis to serve pork would be a burden on the free exercise of their religion even though running a deli isn’t a requirement of the Jewish faith.

                  1. It’s almost like I distinguish between private actor and government contractor or something.

                    1. Which is irrelevant to the question being discussed, but super.

                    2. Nah.

                      The distinction is at the heart of why a non-discrimination policy in a city contract is not analogous to a law that applies to all businesses.

                    3. Allow me to quote myself, “Which is irrelevant to the question being discussed, but super.”

          2. No one is saying you can’t be a Jewish Deli. We’re just saying if you don’t abide by the new state policy that all restaurants must serve pork products, the state just won’t give you a license to run a food establishment.

            Y’all keep broadening the scope like this.

            They aren’t saying “all restaurants”. They’re saying “the contractor to run the cafeteria in the state house”.

            That’s a huge difference you keep glossing over.

            1. Nobody is glossing over anything. You just keep ignoring the question being addressed.

              1. The “question” is conflating “private business” with “government contractor providing a government service”.

                You can be in the adoption business without a government contract. Many do, including those that specialize in keeping children “in the community”, be it based on race, religion, or whatever.

                No one is arguing that.

                What is being argued is that the it’s somehow “unconstitutional” for a government contract to specify that the contractor can’t discriminate against certain people.

                You want to be a lawyer who refuses gay clients? Great.
                You want to be a state-paid public defender? You don’t get to pick your clients, so some of ’em may be gay.

                You want to be a Jewish Deli that doesn’t serve pork? Great.
                You want to run the cafeteria at the courthouse? You don’t pick the menu, you serve what they tell you to serve, which may include bacon and pulled pork.

                You want to run a private school that refuses black students? Great, the South loves your segregation academy.
                You want to run a charter school? You don’t get to be a public-funded segregation academy.

                Your “question” has been addressed. It’s dishonest, sophistic, and ignores the actual situation.

                1. “Your “question” has been addressed. It’s dishonest, sophistic, and ignores the actual situation.”

                  The fact that you think it’s my question being addressed just proves my point.

                  1. If you didn’t want to own it, you shouldn’t have raised it again.

                    1. Raised what again? Own what?

            2. OK, let’s run with your “cafeteria in the state house” example.

              There’s a cafeteria in the state house. Actually several cafeterias. 30 of them in fact. All brought in to feed the people in the state house. One of the 30 cafeterias is a long-standing Jewish Deli, which has been working with the statehouse for decade.

              Twenty-nine of those Cafeterias offer BLTs every day. But one’s a Jewish Deli, and doesn’t.

              Politician Adolf McHitler decides to pass a regulation that enforces ALL the Cafeterias must offer BLTs, effectively forcing the Jewish Deli out of the state house.

              Is that religious discrimination?

  3. I’m unclear on the particulars of this case, but it sounds to me as though the City of Philadelphia is basically using CSS to perform a government function.

    If the city were managing the adoptions directly, we’d presumably want them to not discriminate against same-sex and unmarried couples, unless there were excellent and well-established reasons to believe that this was strongly contrary to the children’s interest. It seems that the same rules should apply to a private party acting on behalf of the city government.

    1. Is fostering children a traditional government function? I doubt this is a state actor case rather than a government licensing certain entities as fostering agencies.
      Bernard11’s question (is fostering children a requirement of the Catholic Religion?) is more plausible. It certainly doesnt seem to strike at the core of Catholic religious practice.

    2. “but it sounds to me as though the City of Philadelphia is basically using CSS to perform a government function.”

      From the Cert Petition, it appears that the City allows various organizations to investigate and endorse potential foster parents. So there are other agencies that same-sex couples can, and presumably do, go through to be foster parents.

      “CSS’s beliefs about marriage haven’t prevented anyone from fostering. Philadelphia has a diverse array of foster agencies, and not a single same-sex couple approached CSS about becoming a foster parent between its opening in 1917 and the start of this case in 2018. Despite this history, after learning through a
      newspaper article that CSS wouldn’t perform home studies for same-sex couples if asked, the City stopped allowing foster children to be placed with any family endorsed by CSS.”

      1. and not a single same-sex couple approached CSS about becoming a foster parent between its opening in 1917 and the start of this case in 2018.

        Gee. I wonder why.

        Whatever else you think of this case, that’s a truly idiotic argument.

        1. “Gee. I wonder why.”

          Do tell.

          “Whatever else you think of this case, that’s a truly idiotic argument.”

          It’s more a statement of fact than an argument, but what makes it truly idiotic? Based on the cert petition, not a single gay couple ever complained to the City about the Catholic’s foster agency, they had to learn about it from a newspaper.

          1. Same sex couples weren’t allowed to be foster or adoptive parents anywhere until a short time ago. 15 years? 10?

            1. Would a catholic child have their rights violated being placed with a same-sex couple? Who cares if the adoption agency doesn’t like it, your religious rights can’t override the child’s.

              What about a Muslim child with a Christian coup… and people shift their mouthings…

              1. I’m not up on the particulars of how adoptions work, but they try to put like with like (demographically), for obvious reasons. Putting a Christian child with a Muslim family, particularly a female one, is tantamount to child abuse. Likewise, it wouldn’t be a good idea to put some Mohammedan kid in with a fundamentalist Christian.

                1. For that matter, it isn’t a good idea to put a kid that’s going to grow up to be gay with a fundamentalist Christian.

                  Ironically, putting them with a Catholic family would probably be fine. Catholics are way more dandy with gay folk then the Catholic Church is.

                  But discriminating against fundamentalist Christians would be wrong, even if we know that in a certain percentage of cases it’s going to end in tragedy.

                  1. Oh, we know the Catholic Church loves gays, you see all the priest scandals that they keep covered up.

          2. Question…was this case sparked like many of the other “bake my cake you bigot” cases, that is, a litigant was found to complain about discrimination?

            1. From the cert petition, it doesn’t look like anyone complained about discrimination. The Catholics allege that the City learned about their policies from a newspaper article, not a complaint.

              1. I do find it interesting that the City continues to pay CSS to provide other social services, although I’m not sure which way that cuts.

              2. And the City agrees they found out about it from the newspapers, not a complaint from a prospective foster parent. After they confirmed the policy with CSS, the City chose not to renew the CSS contract when it expired.

    3. Let’s be clear….This is all about Mayor McDrunky and his progressive politics. Their agenda is to drive religion from the public square by force of government.

      1. Exactly.

        Libs are ok [for now] with “freedom of worship” so long as that only means letting the stupid SkyFairy believers waste time on the weekend at a church. Living your life according to your beliefs is not allowed, Muslims excepted of course.

        Progressives since at least Robespierre hate religion and seek to destroy it.

  4. ” The Court would have to decide whether Philadelphia’s interest in ending discrimination based on sexual orientation, in this context, outweighs the right of CSS to conduct itself according to its sincere religious convictions.”

    In light of the fact that the 1st amendment was ratified, and the ERA wasn’t, this shouldn’t be a difficult decision. Religious liberty is a constitutional value. Ending discrimination on the basis of sexual orientation, not.

    1. This assumes underlying facts that are not necessarily true. First, whose religious liberty? Nothing about this generally applicable is dictating how the Catholic church conducts religious matters. Second, assuming there is a religious liberty interest by CSS, is the competing interest the right of same sex couples and unmarried heterosexual couples to adopt? The state definitely has a compelling interest in seeing that children do not become wards of the state and are adopted by families that will love them and care for them. The least restrictive means for accomplishing this is to make as many people as possible to become foster parents. If a licensee is stating that they will not follow the terms of their license, that is insubordination.

      1. Homosexual and unmarried couples are not being denied a right to adopt.

        Unless you meant to say denied a right to adopt at a particular agency, but that just sounds too stupid to be your argument.

        1. I do have a question of scale that I suspect no one can answer.

          How many gay couples are we potentially talking about here? Other non-religious agencies obviously quickly filled the gap when the Catholics stepped away from this service, so it’s not like this was a monopoly. Also, if a gay couple when to adopt, they could send them to ACME adoption agency rather than the Catholic one.

          1. “when the Catholics stepped away”

            That’s an interesting way of saying “were shut out”.

  5. For Fulton, in general I don’t think that the City can prevent the Catholic Church from providing private adaption or foster services, but I don’t think it has to pay for it.

    There is, however, an additional issue: I think parents retain a right to have a say in their children’s upbringing, including their religious upbringing, even if they’re temporarily not able to care for them, and the City can’t exclude the religion the parents want. So if the parents request that their children receive Catholic foster care, I think that the City can’t say no. This means, however, that the parents and not the City initiates the decision to use them. The children may also have some say at an appropriate age.

    So my view is split, with the City winning most but not all of its case. Catholic Services has no automatic right to be part of the general foster care pool at the City’s expense. But Catholic Services has the right to operate private adoption and foster services geared specifically at Catholic children, and it also has the right to be the provider (at City expense) when parents and/or children specifically want to arrange for a Catholic upbringing and Catholic Services has someone who otherwise qualifies who can do it.

    1. Obviously the answer will depend on local rules and jurisdiction but I think as a general rule that biological parents do not retain a right to have a say in their child’s upbringing. Open adoptions allow some limited ongoing rights but a) they are limited and b) my understanding is that they are the minority of adoptions – that most adoptions are closed.

      That said, bio-parents (or at least the bio-mom) have some rights to put conditions on the adoption so long as those conditions are made at the point that the child is being surrendered. But for your hypothetical, that just means the adoption agency has to find a Catholic family, not that the city has to use a Catholic adoption agency.

      1. And have the City and not the Catholic Church be the one to decide which families are sufficiently Catholic?

        If the parents have a right to a Catholic family upbringing for their child, then it follows that they also have a right to have a Catholic family as the Catholic Church and not the City defines a Catholic family.

        This is where I think there is a legitimate First Amendment issue. Foster parenting and adoption aren’t simply arms-length commercial services like any other commercial services. They’re more like a school. Perhaps even more so, perhaps between a school and a family. Privacy and religion-clause considerations prevent the state from doing completely whatever it wants.

        1. I think you’re confusing a private adoption with a state facilitated adoption.

          In a private adoption, the parent absolutely has a “right” to choose the kind of family (including race, religion, sex, whatever) of the adoptive parents. This is 100% because they don’t actually surrender their parental rights until the adoption.

          In state-facilitated adoptions the parent had their rights sundered already, either because they gave ’em up all at once and washed their hands of the situation, or because after years of the kid being in foster care their parental rights were sundered.

          CSS’s business (or not) in facilitating private adoptions is not being debated. What is being debated is their participation in facilitating adoptions on behalf of the city.

          1. In a foster parenting situation parental rights may have not yet been permanently adjudicated. And older children may also have a say.

            As I said in my original comment, the City wins in the general case but there are exceptions.

  6. The 3rd Circuit opinion refers to a contract between the City and Catholic Services. Catholic Services is claiming a right to have its contract continued.

    If the situation were different, and the City was refusing to work with prospective foster parents who otherwise qualified simply because Catholic Services endorsed them and the City doesn’t like Catholic Services’ endorsement policies, in that case I would say Catholic Services should win.

  7. But anti-discrimination laws are not laws if general applicability. They often only apply to employers, and employers who employ a certain number of employees, they apply to some ages, races, disability statuses, etc.

    1. These are the City’s laws City can make the laws it wants. They are what they are.

    2. “laws of general applicability” does not mean it applies to every citizen. Most laws don’t. It just means it is not specifically targeted to a religion or religious practice.
      Speed limits only apply to those driving cars and motorcycles. But they clearly are law of general applicability.
      Same for employment discrimination laws. They apply by definition to those who are employers. Anyone can be an employer; the fact that someone chooses not to be (and hence the law does not apply to him) does not turn that into not a law of general applicability.
      A law which bans animal sacrifice, OTOH, would not be such a law. See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).

  8. Fostering is one of the areas that lie between clearly private and clearly commercial activities. The Supreme Court has analogized foster parents to a boarding school.

    If this analogy holds, then a state with more conservative proclivities would have a heightened, possibly compelling interest in a school with a gender-diverse faculty.

    If we classify foster services on the commercial side of the line, then the arguments against sex discrimination and for gender diversity become arguments in favor of Catholic Services’ position, not the City’s.

    If we classify foster parenting services on the private side of the line, there are separate arguments for Catholic Services’ side.

    The City seems to be taking the position that foster services themselves are private but managing them is public. This reaches the result the City wants. But it is in some ways a peculiar position to take. People who manage abortion services, even abortifients that cross state lines, aren’t immunized from privacy. If foster parenting is private and protected from state interference, managing it is arguably private as well.

  9. Just for those interested, taking care of children is a core belief for Christians, not just Catholics. Preventing them from doing so within the other strictures of their denomination is also preventing the free exercise of religion.

    Lots of moral commands about this topic. For instance, Mark 9:36-37 about Jesus:
    “Taking a child, He set him before them, and taking him in His arms, He said to them, “Whoever receives one child like this in My name receives Me; and whoever receives Me does not receive Me, but Him who sent Me.”

  10. I think the Catholics, and their supporters have gotten it wrong on this one. They’re trying to impose their choice(s) on other people, and lack the authority to do this.
    The point of running a foster child system is to provide services to children who need them, and by categorically declining to accept unmarried hetero couples as sources of those services they are arbitrarily denying those services to the very children who need them. That is an evil act. I cannot support it.

    1. You have it backwards, it’s the city that is imposing their choice on the Catholics. This whole case is silly, in that the kids placed by the Catholics can go to traditional married families, but the kids placed in ACME adoption agency can go to gay couples. This is all about virtue signalling from the city.

      The city is making Catholics make a choice between competing values: to continue to help children, a belief of their religion, they have to put children with same-sex couples, which violates a belief of their religion.

      1. This whole case is silly, in that the kids placed by the Catholics can go to traditional married families, but the kids placed in ACME adoption agency can go to gay couples.

        Which is exactly the same argument made about lunch counters 50 years ago and concluded to be bunk.

        1. Not really. You should know better than to make such a comparison. Jim Crow was a government policy, not based on the delicatessens’ of the South religious faith in separate but equal (though admittedly a few wingnuts made such a religious argument against racial integration). And just like JP you have it backwards. It’s not the Catholics telling the city how to do their job.

          1. Jim Crow was pervasive, both public and private.

            And while race and gender orientation may not be analogous, your argument about alternate means existing to get the same services is broad-spectrum, and not in a good way.

            It’s Catholics telling a bunch of couples their business isn’t welcome here. If you don’t see the echo of the past in that, you’re not mixing your metaphors correct.

            1. The entire framework of Jim Crow was government supported, without it, it would have collapsed under the weight of the free market.

              And I agree with Sam, who said it better than me. Again, you have it backwards. The city is telling the Catholics what it means to be Catholic. Philly knows doctrine better than the Pope I suppose.

              1. “I want a contractor that’ll paint my house blue.”
                “Sorry, blue is against my religion. I only paint houses red.”
                “Cool story, guess I’ll find someone else then.”
                “Why are you telling me how to do my religion!?”

                1. It really is this simple. You want to participate as the provider of a government service that requires non-discrimination, then don’t discriminate. If your religion requires you to discriminate, then you don’t participate. It really is not hard.

                  Your professed religious beliefs do not allow you to dictate government policy.

                  If Bob Jones University Adoption Services refused to provide these services to interracial couples, all you on CAS’s side would see the problem, right? Right?

          2. It’s not the Catholics telling the city how to do their job.

            The Catholics are literally telling the city that it has to pay them to discriminate against gay people.

            1. That’s a funny way to frame it, when it’s the city doing the demanding here, saying that in order to provide services, you have to stop being Catholic.

              1. If you have to stop being Catholic to obey a non-discrimination policy, the Catholic Church needs to revise it’s numbers.

                In case that wasn’t clear, there are many Catholics that disagree with your assessment.

              2. That’s not what the city is saying. Catholic Social Services can provide services as they see fit. But if they want to participate in a program that uses city money, they have to abide by city rules.

        2. It’s more like forcing Victoria Secret to sell baseball gloves.

          These Catholic Charities are not experts in homosexual families but are experts in natural marriage and natural families. So that’s the services they offer.

          1. Experts in homosexual families? What’s the difference?

            This new argument again proves way too much.
            ‘I’m not an expert in serving blacks, so I’m going to offer my services to a cohort I know better.’

            Of course, if the conservatives vote to overturn Smith I don’t see why racial discrimination won’t be on the table for certain faiths.

            1. Natural families and homosexual families have different dynamics. Obviously.

              D’uh.

              “I’m not an expert at serving collard greens and fried chicken, so I’m going to offer menu items that I can prepare better”.

              1. I think that he’s just offended by your assertion that homosexual married couples raising kids aren’t considered “natural”. Which they aren’t, since they can’t pro-create without modern medical interventions, and gay marriage is a newer invention than the paint job on your house.

                1. I’m fine with his crappy terminology.

                  I’m not fine with your equating who can do sperm-egg whoopie and who gets to be a loving home.

                  All adoption is unnatural, by that ‘logic.’

                  1. Crappy? Naw, direct and accurate.

                    Don’t move the goalposts to “loving home” rather than what is “natural” vs “unnatural”. I sure a pair of gays raising an adopted/test-tube kid can have a loving home. Even invitro fertilization is unnatural because it requires medical intervention, though much more accepted. And yes, actually adoption is quite natural, tell me how it’s not.

                    The issue that you’re missing, is placing a kid in a home with a gay couple deprives them, deliberately, of the relationship that comes with having both a man, and a woman, as parental figures. It’s like having a cat raised by dogs; it can be done, but it’s not good for the kid. And yes, I will admit, that it may be better than nothing, and the ideal is a loving marriage between the biological mother and father (something culture and courts have long recognized).

                    1. The issue that you’re missing, is placing a kid in a home with a gay couple deprives them, deliberately, of the relationship that comes with having both a man, and a woman, as parental figures.

                      Which is why there are no single-parent adoptions.

                      Hint: that was a lie. Single-parent adoptions are totally a thing, even with CSS.

                    2. @Escher

                      Little children deserve mommies and daddies, it’s always sad when a child does not have a mommy and a daddy.

                    3. @Sam Gompers
                      Then sue CSS for doing single-parent adoptions already.

                2. Which they aren’t, since they can’t pro-create without modern medical interventions […]

                  By that logic, any infertile couple is also not “natural”.

                  And no, gay marriage is actually pretty old. Government recognized gay marriage? Relatively new. You shouldn’t conflate the two.

                  1. I would love to be educated here. Please give me a historical example of gay marriage. Literal marriage, with vows, etc. Shacking up is not marriage.

                    1. Oh give it a rest. Gay couples took vows in formal ceremonies decades before gay marriage was legalized, very often in a service presided over by a religious officiant. Did you really not know that?

                      All that was missing was the little piece of paper from Big Government, with all the rights, obligations, and duties that entails.

                    2. I would love to be educated here.

                      Thanks, I needed a laugh.

                      Face it dude, human nature doesn’t change that fast. The only thing stopping gay folk from demanding marriage equality earlier was sodomy laws. In every case, once those fell away, thus making it safe for gay folk to ask for legal marriage, we jumped on it.

                      But sure. Gay cowboys are pretty infamous, you can find lots of books on it. Gay pirates? Heck, they even had ceremonies involving sharing loot and earrings. Some folks have been bringing attention to how some Native American tribes used to recognize “two spirit” folks (and yes, allow them to marry) before the Christians beat it out of them. We’ve been everywhere, in every corner of the globe, every civilization. And yeah, we’ve formed committed relationships with or without government approval.

                      Fact is, LGBT folk have been around for all human history. And absent threats of violence, we settle down with partners and live as family. Our families aren’t the perversion, government threats against us are the perversion.

                    3. I love how all this gay marriage history conveniently appeared the past few decades.

                      Just like how all this transgender history is being newly discovered.

                      dot dot dot

                    4. @Sam Gompers
                      I love how all this gay marriage history conveniently appeared the past few decades.
                      Yeah, it’s almost like we have centuries of western civilization treating being gay like a crime that suppressed the free exchange of information, ideas, and history.

                      If you don’t want to be surprised by the historical record, maybe white-wash it less?

              2. I don’t think your ‘duh’ is true. Certainly it’s not proven.

                It’s not what menu items are, it’s who you’re serving. Mixing that up is a lame move that fools no one.

                Though your equating black with collard greens and fried chicken is a bold move.

                1. It used be an accepted fact that children raised in biologically intact natural families had the best outcomes.

                  Until the “reality based” community went in and declared that heretical.

                  My point is that it’s the service being offered, not who is being served. If two heterosexuals who were same-sex married went in, the same problem would exist.

                  Additionally, I wonder how your pure of heart brain drew that conclusion about collard greens and fried chicken? Maybe it’s a little darker than you let on.

                2. It used be an accepted fact that children raised in biologically intact natural families had the best outcomes.

                  And now we have research to back that up.

                  But we’re talking about kids for whom that already isn’t an option. No one is going around stealing kids from stable two-parent households to adopt them away.

                  My point is that it’s the service being offered, not who is being served.

                  Yeah, no one who matters is persuaded by the “I only serve white lunches. I don’t serve black lunches. So I’m not discriminating against black people, it’s just that black lunches are a thing I don’t sell” argument.

      2. “You have it backwards, it’s the city that is imposing their choice on the Catholics.”

        The city imposes requirements to follow the rules in all its contracts for services. The Catholics agreed to do so voluntarily, and now it’s an imposition on them to expect them to keep their word?

        “The city is making Catholics make a choice between competing values”
        If providing services to foster children puts them in such conflict, perhaps they should not contract to provide services to foster children.

  11. This is pretty simple, really.

    If the city of Philadelphia did all it’s adoption services in-house, is there any dispute over whether it could require city employees to abide by it’s non-discrimination policy?

    If so, then why can the city of Philadelphia not require third-party contractors, being paid to do the same work, to abide by the same policy?

    And if you do have some sort of answer that’s more then sophistry, here’s the bonus round… if the city of Philadelphia is prohibited from requiring contractors to follow it’s non-discrimination policy, why shouldn’t the city end it’s contracts and do the work in-house instead?

    1. As to your bonus round question, they should. There is no legal right to operate as a licensed Foster Care agency.

    2. Riddle me this; what if the city said it won’t work with any adoption agency that bans their employees from working with Israel?

      Why does Philly outsource this work? Because it’s way to expense to do in house, with pensions, medical coverage, and living wages etc. Nonprofits, particularly ones that think they are doing God’s work, do much of the government’s work on the cheap, and they do more and more of it as time goes on. It’s called the “Hollow State” amongst the academic talking heads.

      1. Riddle me this; what if the city said it won’t work with any adoption agency that bans their employees from working with Israel?

        Not analogous, as that’s policing employees non-work behavior.

        But a city that said “we’re boycotting Israel, so find another vendor if you were doing something with Israel for some reason”? That’d be entirely within their purview.

        Why does Philly outsource this work? […] It’s called the “Hollow State” amongst the academic talking heads.

        I haven’t contested this.

        But if CSS wins their case, and it becomes unconstitutional for a city to not contract with a group that has stated up-front that they intend to violate the contract, then you’re going to find more city and state services being offered in-house anyway.

        1. “But if CSS wins their case, and it becomes unconstitutional for a city to not contract with a group that has stated up-front that they intend to violate the contract”

          Why would the city include an unconstitutional provision in their contract? It seems like that would just lead to them losing lawsuit after lawsuit.

          1. Why would the city include an unconstitutional provision in their contract?

            You seem confused on two points.

            (A) who’s been winning the cases up till now (hint: the city has had no reason to think the provision is unconstitutional)
            (b) my question, which was that if CSS wins, why would the city continue use contractors at all?

            1. “You seem confused on two points.”

              Again, you seem confused about what’s being discussed. Which is odd, because this time I’m responding to you.

              “(A) who’s been winning the cases up till now (hint: the city has had no reason to think the provision is unconstitutional)”

              You started off the very statement I was responding to by saying “But if CSS wins their case,” which would give them a pretty damn good idea that the provision is unconstitutional. They would, more or less, have a Supreme Court opinion saying the provision was unconstitutional at least in certain situations. Who was winning before then would be pretty irrelevant in that situation.

              You continued: “and it becomes unconstitutional for a city to not contract with a group that has stated up-front that they intend to violate the contract”

              Regardless of whether CSS wins, the only reason it would be unconstitutional for a city to refuse to contract with a group that stated they would not comply with a contract provision would be if that provision was unconstitutional. So why would a city continue to include an unconstitutional provision in its contract?

              “(b) my question, which was that if CSS wins, why would the city continue use contractors at all?”

              I’ve already addressed the should version of the question, you said you weren’t contesting the hollow state explanation, so I’m not sure what more you are looking for.

              1. Regardless of whether CSS wins, the only reason it would be unconstitutional for a city to refuse to contract with a group that stated they would not comply with a contract provision would be if that provision was unconstitutional. So why would a city continue to include an unconstitutional provision in its contract?

                Obvious sophistry is obvious.

                I’ve already addressed the should version of the question, you said you weren’t contesting the hollow state explanation, so I’m not sure what more you are looking for.

                The hollow-state is an explanation for the status quo.

                It is not a justification for why the status quo wouldn’t change when the circumstances change.

                1. “Obvious sophistry is obvious.”

                  I’m not the one trying to misrepresent what would be unconstitutional if CSS wins the case. That’s all you.

                  “It is not a justification for why the status quo wouldn’t change when the circumstances change.”

                  CSS winning the case won’t increase the resources of the Philadelphia city government, so the most relevant circumstances won’t have changed. I didn’t think that needed to be explained.

                  1. I’m not the one trying to misrepresent what would be unconstitutional if CSS wins the case. That’s all you.

                    Neither am I. Hence why I called your obvious sophistry for what it is.

                    CSS winning the case won’t increase the resources of the Philadelphia city government, so the most relevant circumstances won’t have changed. I didn’t think that needed to be explained.

                    I think losing the power to set things in contracts is a pretty relevant circumstance.

                    1. “I think losing the power to set things in contracts is a pretty relevant circumstance.”

                      No, this is yet another example of your sophistry. If CSS wins, the City will not lose the power to set things in contracts. The City’s right to contract is already constrained by any number of state and federal constitutional provisions, state and federal laws, and (I’m guessing here) judicial determinations about public policy. If CSS wins, one more thing will be added to the list of things the City is already prohibited from including in its contracts.

                      And you haven’t explained where the additional resources are coming from. Want to, and can, are two very different things.

                    2. ” If CSS wins, one more thing will be added to the list of things the City is already prohibited from including in its contracts.”

                      “If you win the contract, will you actually follow it” seems like something pretty important to ask while forming a contract, and pretty severe to take away from one of the contracting parties.

                    3. Not as important as “is this contract constitutional,” and that was established long before this case was even conceived of. Just desperately grasping at straws.

                  2. “I’m not the one trying to misrepresent what would be unconstitutional if CSS wins the case. That’s all you.”

                    What exactly ARE you trying to misrepresent?

                    1. You try so hard to be clever. It’s sad how you never succeed.

                    2. “You try so hard to be clever. It’s sad how you never succeed.”

                      If I thought you could actually tell the difference, I’d be truly hurt by your opinion.

                    3. “Just desperately grasping at straws.”

                      I can only assume you’ll eventually run out of straws.

              2. “Again, you seem confused about what’s being discussed.”

                Would it be unconstitutional to order a county clerk to register marriages which meet the requirements for legally-recognized marriage but which do not meet the requirements for that clerk’s personal religion? Hint: NO. Despite fervent wishes of a good many misguided but religious folk. Freedom of reliogious practice does not immunize unlawful behavior claimed to be for religious purpose.

                1. What does that have to do with what provisions the City will include in its contracts with outside agencies going forward if it loses this case? Hint: NOTHING.

                  1. Are you having trouble keeping up?

    3. “If the city of Philadelphia did all it’s adoption services in-house, is there any dispute over whether it could require city employees to abide by it’s non-discrimination policy?
      If so, then why can the city of Philadelphia not require third-party contractors, being paid to do the same work, to abide by the same policy?”

      Hiring other people to do work often imposes additional restrictions. Business owners don’t have to follow wage and hour laws until they hire someone, and then the restrictions apply to the employees, not them.

      But this is just begging the question. If Smith stands, then the City wins. If Smith falls and the Catholics prevail, the answer to your question would be the First Amendment.

      “And if you do have some sort of answer that’s more then sophistry, here’s the bonus round… if the city of Philadelphia is prohibited from requiring contractors to follow it’s non-discrimination policy, why shouldn’t the city end it’s contracts and do the work in-house instead?”

      Because having more groups evaluating potential foster parents is probably better than having fewer?

      1. Because having more groups evaluating potential foster parents is probably better than having fewer?

        More people, sure. But more groups?

        Especially if contractors are allowed to put their own arbitrary criteria ahead of the city’s criteria?

        Nah.

        1. Yes, if there’s ever anything foster care systems throughout the country are know for, its an overabundance of prospective parents.

          1. If you want to argue that without CSS, fewer folks will seek to be prospective parents, you should probably actually argue that, rather then imply it.

            1. Now you are just flailing. It’s getting embarrassing.

              I mean, I didn’t think that I would have to explain that having fewer groups allowed to recruiting potential foster parents would reduce the supply, especially when one of those groups has a built-in constituency to draw from. I thought that was pretty obvious. I’m truly curious what else you could think that would mean.

              1. Literally anyone can recruit foster parents, what’s at issue is the power to authorize them.

                God doesn’t seem to have a problem placing children with people who aren’t married to each other by Catholic ritual. He does so with amazing regularity.

                1. “Literally anyone can recruit foster parents, what’s at issue is the power to authorize them.”

                  Right. Despite there being so many willing and able foster parents out there, the City was still paying CSS to recruit foster parents just for shits and giggles.

                  “God doesn’t seem to have a problem placing children with people who aren’t married to each other by Catholic ritual. He does so with amazing regularity.”

                  Which has nothing to do with this case, so super. And, while this is also completely irrelevant to the case, God doesn’t place children with homosexual couples all that regularly.

                  1. “Right. there being so many willing and able foster parents out there, the City was still paying CSS to recruit foster parents just for shits and giggles.”

                    No, genius. They’re paying the contractors to vet the volunteers, and the contractors are substituting their own list of qualifications for the volunteers instead of the real ones, thus depriving some of the children of the services they’re supposed to be receiving.

                    I’d be on their side if the city was demanding that would-be foster parents who happened to be married Catholics be disqualified, but he contractors were clearing them in violation of the requirements.

                  2. ‘ while this is also completely irrelevant to the case, God doesn’t place ch ildren with homosexual couples all that regularly.”

                    He doesn’t seem to be reluctant to let gay parents conceive via surrogacy.

                  3. “No, genius. They’re paying the contractors to vet the volunteers”

                    No you fucking moron, they’re paying contractors to recruit and endorse parents to participate in the system. That’s why they’ve never turned away a single gay couple, and no gay couple ever complained to the City about them.

                    1. First rule of Internet pedantry. If you want to call someone stupid, first make sure they’re more wrong than you are.
                      You have failed this task.

                  4. “He doesn’t seem to be reluctant to let gay parents conceive via surrogacy.”

                    Again, this is completely irrelevant to the case, but day couples can’t conceive via surrogacy. Unless I’ve missed something, artificial insemination still requires a sperm and an egg.

                    1. ” day couples can’t conceive via surrogacy.”

                      What a shame for the days.

              2. “Now you are just flailing. It’s getting embarrassing. ”

                Speaking of, it doesn’t seem to slow you down any.

                1. You haven’t made one coherent point since you parachuted in to make EscherEnigma look reasonable by comparison.

                  1. Whereas you’ve been able to hold down the unreasonable side of the debate all on your own. Congratulations!

          2. ” if there’s ever anything foster care systems throughout the country are know for, its an overabundance of prospective parents.”
            That’s why they have to screen them. Lots of people would like to help the poor little children, but don’t know how challenging it is/can be.

        2. Lets put this line of thought and apply it to procurement. I’m sure there are plenty of groups that would like to have a say in whether the army needs more guns and tanks. As it is we only have the brass’s opinion on that subject. I need an F-15, but the AirForce won’t issue me one; nor the A-10 I need for convincing local drivers to slow down near the schools.

  12. It seems like the argument here is that if government doesn’t give a religious organization public money for x activity, the government is abridging that organization’s freedom of religion. Is that correct? It seems like a crazy argument. The constitution requires governments to tax the people and turn that money over to religious organizations? I guess I would’ve thought the constitution actually prohibited that.

    1. Jesus said to harass gay people and straight people who have sex without getting Catholic marriages as much as possible, so the Catholics have no choice but to harass them. They have to do what Jesus said. It’s just too bad for the little orphan children that Jesus never told anyone to care for widows and orphans.

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