Why this Religious Freedom Case is Different From the Others [updated with an important qualification]

In Fulton v. City of Philadelphia, a key case currently before the Supreme Court, there is a strong reason to rule for the government that doesn't apply in most other religious-liberty disputes.


NOTE: The argument presented here is potentially subject to serious qualification dependent on the factual question described in the updates at the end of this post. And as described in Update 2, I think it is indeed likely that the facts are such that the argument made here has much less relevance than I believed when I initially wrote the post. I apologize for my initial error.

I am leaving the entire post (plus updates) up, so as to be as transparent as possible, and avoid any implication that I am somehow trying to hide my initial mistake, as opposed to correct it.

On Wednesday, the Supreme Court will hear oral arguments in  an important religious liberty case, Fulton v. City of Philadelphia. Because it is coming the day after election day, Fulton isn't getting as much public attention as it deserves. But the case is a very significant one, for multiple reasons. In this post, I focus on a key angle that makes this case very different from most other prominent religious-liberties claims in recent years: the fact that a win for the plaintiffs could cause serious harm to innocent third parties who have no way to avoid it [But see qualification in update below].

Fulton is a challenge by  Catholic Social Services (CSS) and others, to the City of Philadelphia's policy of refusing to place foster children with private service agencies that reject same-sex couples as potential foster parents. CSS refuses to do so for religious reasons, due to the Catholic Church's opposition to gay marriage and same-sex sexual relationships more generally.

CSS contends that the City is discriminating against them based on religious beliefs, and that the Free Exercise Clause of the First Amendment entitles them to an exemption from even a neutral antidiscrimination policy. To prevail on the latter point, CSS would need to persuade the Supreme Court to overrule or at least substantially limit the scope of its 1990 decision in Employment Division v. Smith, which held that, as a general rule, there is no constitutional religious-liberty exemption from neutral, generally applicable laws.

Smith was written by conservative Supreme Court Justice Antonin Scalia. At the time, it was heavily criticized by many liberals, while most conservatives supported it. Since then, the culture wars have shifted, and overruling Smith has become a major objective of social conservatives, while most liberals would prefer to keep it in place.

The fate of Smith is the main reason why this case has caught the eye of legal commentators understandably so. But there is another crucial angle that deserves greater consideration.

In most prominent religious-liberty cases, the the issue at stake is either the government discriminating on the basis of religion (as in the travel ban case and the recent Espinoza Blaine Amendment case),  or the state requiring private businesses to provide services that violate their religious beliefs, to willing customers or employees (as in the 2014 Hobby Lobby case and various cases involving photographers and bakers unwilling to serve same-sex marriages). The 2018 Masterpiece Cakeshop case raised both issues.

In cases like Hobby Lobby and Masterpiece Cakeshop, the workers and consumers involved had the option of going elsewhere. While Hobby Lobby's religious commitments led them to refuse to provide contraception benefits to employees, the vast majority of employers (like the vast majority of Americans generally), have no such objections. Employees who value those benefits, accordingly, have many alternatives to working at Hobby Lobby. Indeed, workers as a class  benefit from allowing diversity in benefits, as some might prefer an employer who—instead of providing contraception benefits—offers higher pay or better benefits of some other kind. Similarly, same-sex couples have many alternatives to going to bakers or photographers who object to their wedding. Indeed, most such couples are likely to be better off choosing contractors who don't have any such objections. Those who do object are unlikely to do a good job of helping to celebrate an event they abhor.

The situation in Fulton is very different: orphans and children in the foster care system—especially younger ones—generally do not have much choice when it comes to deciding which social service organizations will handle their cases. If they end up with CSS or another organization with similar views, they will lose the chance to be placed with a same-sex couple, even if that family is actually the best available home for the child in question. In that event, the child could be placed in a foster home less well-suited to her needs, or even none at all. Unlike people in search of a baker or a photographer,  children in the foster-care system generally don't have the option of simply taking their "business" somewhere else.

This might not matter if you believe that religious-liberty claims are entitled to an absolute exemption from generally applicable laws. But most advocates of overruling Smith do not take any such absolutist position. Instead, they  generally support something like the "compelling interest" test that Smith overruled, which would allow restrictions on religious freedom so long as they are necessary to promote a compelling government interest. For example, virtually no one claims that religiously-motivated killers are entitled to an exemption from laws against murder and terrorism.

Placing foster children with the best available caregivers is pretty clearly a compelling interest, if anything is. And in this instance, unlike Hobby Lobby or Masterpiece Cakeshop, there may be no other way to ensure that the people in question can get the services they need. Unlike most customers and workers, the children are a captive market whose fate largely depends on decisions by government officials.

It's also worth noting that the argument put forward by the plaintiffs in Fulton could just as easily be used by service organizations who have religious objections to placing children with interracial or interfaith couples. A few religious groups still condemn the former, and many more object to the latter. In that scenario, few would contend that the state must make use of these agencies without requiring them to consider potential foster parents irrespective of the  latter's race or religion.

The issue of third-party harm may not be dispositive in the case. It obviously may not matter if the Supreme Court chooses to reaffirm Smith.

Furthmore, in addition to arguing for overruling or cutting back on Smith, the plaintiffs also contend that city officials discriminated against them based on "animus" towards their religious beliefs. My George Mason University colleague Helen Alvare—a prominent expert in this field—has a good defense of the latter argument here.

If she's right, the Court could rule in favor of CSS without concluding that religious organizations are generally entitled to exemptions from this type of antidiscrimination policy.  While Helen makes good points, I remain skeptical that the City would have treated CSS differently if only the latter's objections to same-sex couples were secular in nature or based on non-Catholic religious commitments. But I will not try to analyze the discrimination issue in detail here. It is enough to note that it potentially provides an alternative basis for CSS to win the case, one that would not require overruling or modifying Smith.

As a matter of policy, it might sometimes be better to place foster children with agencies that have discriminatory policies, if the available alternatives are even worse (e.g.—the children cannot be placed at all). But the issue at stake in Fulton is not whether the Constitution forbids such placements, but only whether the state should be allowed to avoid them.

When it comes to religious freedom cases, I am no slouch about the need to place tight limits on government power. I supported the plaintiffs in Hobby Lobby, the travel ban case, the Blaine Amendment case, Masterpiece Cakeshop, and various other cases on related issues. And I have done so even when I find the plaintiffs' religious beliefs abhorrent, as with religious opposition to contraception (Hobby Lobby) and same-sex marriage (Masterpiece Cakeshop). I have criticized those on both right and left whose stances on these types of cases tends to vary based on whose ox is being gored.

But the issue in Fulton is very different from most other cases. And that difference might justify a ruling in favor of the government, even from a standpoint that is highly supportive of religious liberty claims in other contexts.

UPDATE: I must acknowledge that the argument made in this post should be qualified, because I initially misunderstood the relevant facts. I had assumed that, once  the City refers a child's case to CSS or another private agency, the pool of available parents for that child is limited to those that agency works with. Though, afterwards, the city can potentially reject the agencies' recommended foster family. As the lower court opinion explains:

When a child in need of foster care comes into the City's custody, Human Services refers that child to one of the foster care agencies with which it has a contractual relationship. Once the City refers a child to an agency, that agency selects an appropriate foster parent for the child, although Human Services can oppose a child's placement with a particular foster parent if necessary.

If this is correct, the City has some limited leverage. But once a case is referred to CSS, the available pool of foster parents who can apply to care for that child is limited to those CSS is willing to work with (which excludes same-sex couples). The City can potentially change its mind and refer the case to another agency. But unless and until it does so, the children in question are a captive market for CSS. There is a similar description in the Joint Appendix for the briefs in the Supreme Court case (pp. 83-84):

The Central Referral Unit makes the determination of the appropriate level of care. So whether or not the child has to be placed in foster… care, general foster care, treatment foster care. The foster care. We then—the Central Referral Unit then sends over that referral information to the foster care agency and the foster care agency selects the foster parent and based on the referral information that CRU synthesizes. [emphasis added]

However, the brief of the petitioners (the plaintiffs challenging the City's policy) paints a different picture, under which the government appears to choose between prospective parents submitted by different agencies:

DHS relies on private agencies that find, train, oversee, and support those families. J.A.685. When DHS needs a foster home for a child, it sends out a request, called a referral, to private agencies. These agencies check to see which foster families are available, then notify DHS of any potential match. Agencies provide information about the foster family, and DHS compares that with information about the foster child. DHS then determines which private agency has the most suitable foster family, based upon factors including race, age, family relationships, and disability.

If this latter account is correct, then it appears that City officials can choose between potential foster parents recruited by multiple different agencies (including many who work with same-sex families), and the potential parents submitted by CSS are only picked if the City determines they are the best available alternative of all those submitted by different agencies.

In this scenario, CSS has much less in the way of monopoly power over the children it serves, if indeed any. However, the passages in the Joint Appendix that the Petitioner's cites in support of the above description don't seem—at least to me—to actually substantiate it (one of them is the very same passage already quoted above). They instead seem more consistent with a reading of the facts under which the City chooses a private agency to be the one that works with a given child, and then the latter chooses a foster family for that child (subject to potential veto by Human Services officials).

I will try to make further inquiries about this issue, and will update this post again if I learn more.

UPDATE #2: This statement by Kimberly Ali, deputy commissioner for child welfare of the Philadelphia Department of Human Services,  in Volume II of the Joint Appendix (pp. 697-98) seems more definitive than the one I found earlier:

Once DHS determines the level of care a child needs, it sends a referral to all agencies providing that level of care. Agencies with a potential foster home will  relay this information to the CRU, who will provide the information to the CUA [both CRU and CUA are city agencies]. The CUA and the [private] agency then negotiate a placement date. If there are multiple potential foster homes, the CRU chooses which one meets the child's best interest.

Thus, on this account, it is a city agency, not CSS that ultimately chooses which foster home a given child will be placed in, and in the process it can consider families submitted by any agency that believes it has a suitable candidate family—including same-sex couples.

I am not, however, completely certain whether this statement is more accurate than the one at pp. 83-84 of Volume I of the Appendix, quoted above. The latter statement was also made by Kimberly Ali, (in this case testifying before the trial court). If I had to guess, I would say it's more likely she misspoke during her oral testimony than that she did so in the written statement in Volume II of the Appendix. But it's hard to tell for sure. For the moment, however, I will assume that the written statement is the more accurate one.

If so, the point made in the post should carry far less weight than I initially thought. The children still, of course, have little choice in the process. But the CSS' discrimination against same-sex couples has little or no effect on their fate so long as other foster care agencies remain free to submit the names of potential foster parents and those agencies accept same-sex couples (as they in fact do). At most, the children are denied access to some subset of same-sex foster parents who would have been in the system had CSS been willing to take them, but for some reason are unwilling or unable to work with another agency. CSS claims that they would in fact refer any same-sex couples that sought out their services to another foster care agency in the area, but that so far no such families have approached them.

In this scenario, removing CSS from the equation does little to expand the foster care options available to needy children. It might even reduce them, on net, if those foster families that work through CSS choose not to stay in the system with the help of a different agency.


NEXT: Today in Supreme Court History: November 1, 1961

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  1. I would think it would be difficult to argue that anyone has a protected interest in running a government-sponsored foster agency, discriminatory or not. That government chooses to farm out this work rather than perform the job in-house seems irrelevant to me.

    Using Hobby Lobby and Masterpiece Cakeshop as examples, I believe the court got both of those case right but I do not believe that either should be able to force governments to use their services when participating in their relevant markets.

  2. It seems to me that the most compelling government interest is in providing the maximum number of options for placement of foster children.

    Is the agency the entity that decides which children it serves? If a court or a Social Service Agency with the government makes the decision then that can be taken into account when making the placement.

    The “animis” against Catholics could be based on much more than the churche’s position on same sex relationships. It could be rooted in any number of gro7nds, 8n cluding the past history of antisemitism, the sponsorships of the crusades, priest misconduct, support of autocratic or colonial regimes, supression of the Gnostic heresy or some other unnamed reason.

  3. Is there any evidence that any child ever ended up in foster care because CSS wouldn’t work with same sex couples?

    Or is that just the usual lame what if storytelling we always get on every topic?

    1. Um, ALL the children handled by CSS were ending up in foster care: CSS was placing kids with foster parents!

      1. Put it another way then: compelling interest suggests an adverse outcome is avoided by the government’s decision. What adverse outcomes actually occurred? How many children were victims of it? Or are they all outcomes that people have imagined may someday happen?

        There’s no need to penalize an institution for imaginary problems.

  4. Presumably all foster services have discriminatory policies, unless they hand out children at random. The issues here are that,

    1) The discrimination is based on a ‘suspect’ category. (Whether or not it should be is a separate issue.)

    2) We’re treating that discrimination as not a rational criteria for child placement. (Whether that’s true is also a separate issue, and separate from the FIRST separate issue.)


    3) The children’s rights are implicated, at least on the assumption that there’s a shortage of foster homes available.

    Question: Does the city permit foster services to discriminate on the basis of any other protected characteristic? Such as, oh, whether the potential foster parents exercise some OTHER civil liberty?

    IOW, would it be a different case if you had a secular placement agency refusing to place children with gun owning foster parents?

    1. In this case the city has an ordinance that forbids placing children with agencies that discriminate based on sexual orientation. If there were an ordinance that banned placing children with agencies that discriminate based on gun ownership I would then say it’s the same case.

      Although one could distinguish the two on the ground that a gay child in need of placement will feel anti gay discrimination more keenly, and thus suffer emotional harm, in a way that a child who likes guns would not. Sexual orientation is a part of someone’s identity in a way that gun ownership isn’t.

      1. My reason for point 2 is that for pre-pubescent children the odds are very heavily in favor of heterosexuality, and it is certainly arguable that this implies that most children would be better off only being placed with heterosexual couples, because of having parental role models for their own orientation.

        Post-pubescent, it would be simple for the government to only let CSS place heterosexual children, an easy accommodation of religious liberty.

        Bit I suspect we’re pretending that homosexuals make great role models for heterosexual children.

        1. Do you have any actual evidence that homosexuals don’t make great role models for heterosexual children? It used to be that white children weren’t placed with black families on much the same reasoning you’re applying here.

          1. You can’t reason with superstition or bigotry. Or, in this case, superstition and bigotry.

          2. OK, then, I more than suspect we’re pretending that.

            If we were discussing placing a homosexual child with straight parents, would you still be claiming there’d be no issue?

            1. There would be no issue. There’s no issue with placing straight children with gay parents, and there’s no issue with placing gay children with straight parents. What makes you think there is an issue with either?

              1. Because there’s a lot of child psychology indicating that children benefit from having somebody around them modeling their gender for them. It doesn’t have to be a parent, but they need somebody doing it for them.

                The heterosexual nuclear family accomplishes that for the vast majority of children.

                1. Got cites for that? Because I’ve seen plenty lit reviews that find the exact opposite.

                  Happy to cite them if you want, but I know, that the mere fact anyone disagrees with you means they’re lying to advance the liberal agenda.

                2. Modeling their gender, or modeling their sexual orientation? The two mean different things.

                  And there are far more children needing placement than there are available placements, so a lot of the time the choice isn’t between multiple good homes. More often than not, it’s between an adequate home or nothing.

                  1. At which point, on the assumption that some prospective foster parents who go through CSS would not go through another agency, doesn’t cutting CSS out of the foster agency activity prevent some children from being placed at all? That seems like a worse harm than one foster agency (of many) discriminating against same-sex couples.

                    (I think CSS is wrong to do so, but children actually ending up with parents seems far more important).

          3. The Supreme Court has consistently held that a state has a compelling interest in children being educated in a gender-diverse environment. And a foster home is legally an educational institution like VMI, not a family.

            If there were no evidence that gender diversity in educational environment has any effect on children, why would the Supreme Court have consistently held otherwise, to the point of even saying that some state efforts to accommodate same-sex education (like VMI) are unconstitutional?

            You can’t have it both ways here. The state’s interest in gender diversity can’t be compelling when you feel like it, irrational when you don’t. Constitutional law has to have some basis other than helping ones friends and getting at ones enemies. Like cases have to be treated like. VMI and foster families are both educational institutions.

    2. In a custody battle my attorney suggested I store my guns somewhere else because that could be used against me in court. In fact it would surprise me if rejecting gun owners is not standard for many agencies.

    3. I believe the argument is that the mere presence of firearms increases the risk of suicide. Doesn’t matter how secure they are.

      1. Although that may sound like an odd justification, there’s evidence that adopted children are prone to depression and are a lot more likely than nonadopted children to try to commit suicide. (See, e.g.,,(odds%20ratio%3A%203.70). Because more than half of all successful suicides are by firearms, an argument can be made that it’s better to place a child for adoption in a home in which firearms are not present. I don’t like the idea of automatically excluding gun owners, who may well be preferable to the available alternatives; nevertheless I think gun ownership is a legitimate factor to consider.

  5. And I have done so even when I find the plaintiffs’ religious beliefs abhorrent, as with religious opposition to contraception (Hobby Lobby) and same-sex marriage (Masterpiece Cakeshop).

    ab•hor•rent ăb-hôr′ənt, -hŏr′-►
    adj. Disgusting, loathsome, or repellent.
    adj. Feeling repugnance or loathing.
    Hating; detesting; struck with abhorrence.

    Somin, you need psychological help.

    1. So religious people who find contraceptives or same-sex marriage abhorrent are ok, but people who find those people abhorrent are mentally defective?

      1. If they do, it’s because they think they are obligated to as part of their faith.

        What’s Somin’s excuse? (Yeah, it’s obviously just social-status-seeking. Want to be in the mean girls clique? Gotta be mean to the out crowd.)

        1. By ‘out crowd’ you mean superstitious, childish bigots and the disaffected clingers who rely on them to try to maintain an electoral coalition?

          1. Why do you keep talking about yourself like that?

      2. “Beware the pharisees, who like to pray on corners where the people can see them.”

        Fast forward 2000 years, we whine about virtue signaling amd disclaimers in cancel culture. On both sides.

    2. Do you not find bigotry abhorrent, BillyG?

      Or do you believe bigotry is improved when cloaked in childish superstition?

      Either way, you are on the wrong side of history and will be, and deserve to be, replaced by your betters.

  6. “ Similarly, same-sex couples have many alternatives to going to bakers or photographers who object to their wedding. Indeed, most such couples are likely to be better off choosing contractors who don’t have any such objections. ”

    Someone should explain this to your friends at Reason.

    1. We can’t go backwards to the age of segregation—if a baker advertises they bake wedding cakes they have to bake a wedding cake for any couple that wants one. So don’t engage in false advertising or lobby the state government to make false advertising legal. So gay couples shouldn’t have to call every business and make sure they bake wedding cakes for all couples and not just white hetero couples.

      1. Interesting that you drag “white” into the matter, when race had nothing to do with it.

        Your mind is in the gutter along with critical race theory.

        1. “Wedding cake” is something well defined—a proprietor can’t redefine something after advertising that they sell a product or provide a service.

      2. You’re a liar. The baker said he would not make a custom cake for a gay marriage. He did not say he wouldn’t sell other cakes in his store. You cannot compel someone to violate their ethics and morals, and you cannot use “false advertising” law to do it. There was nothing about race or skin color or height or weight or any other outward feature. The baker won, the state lost, and fortunately we are the better for it.

        1. Nope, false advertising is illegal. He advertises he bakes wedding cakes that means he has to bake a wedding cake. If he doesn’t like to bake wedding cakes for same sex couples he should move to Palestine where marriage has a different definition than in America.

          1. I was told I could keep my insurance policy, but Blue Cross cancelled it because of a few odd details not covered, and said here’s a new one for 3x the cost.

            I hope you will join me in holding invalid things from broken promises. I’ll hold my breath.

        2. You cannot compel someone to violate their ethics and morals […]

          You should go back and read the oral transcripts from the Masterpiece Cakeshop case, as they actually addressed that.

          Phillip’s lawyer did not contest that the state absolutely could compel someone to violate their ethics and morals. For example, even though Phillips may object to pre-made cookies being sold for use at the reception of a same-sex wedding, state law compelled him to make the sale. The oral debate got into other cases the lawyer agreed the law could compel a service provider to violate their ethics and morals, and when they could not. I don’t remember which was which, but he said either that Phillips had a right to refuse to bake a cake for inter-faith or inter-racial weddings, but not the other.

          The baker won […]

          On narrow grounds that did not rule on the merits of whether or not custom cake services were covered by state non-discrimination law.

      3. Why should anyone have to accept a custom for-hire job? If you don’t want to work on my special project, where do I get the right to compel you into my service?

        1. He advertises he bakes wedding cakes…all he has to do is not advertise that he bakes wedding cakes…but as long as he advertises he bakes custom wedding cakes he has to bake a custom wedding cake for every lawful customer within reason. So obviously if a couple said they needed a wedding cake that night he can tell them he needs a week to bake a custom wedding cake. Sorry, in America everyone has an expectation that business as usual can be conducted without having to investigate every business to see if they will serve every American engaged in lawful commerce.

          1. An advertisement is not a waiver of fundamental rights

            1. Yes it is, if you advertise you bake wedding cakes you must bake wedding cakes.

              1. No it isn’t. If you say you bake wedding cakes, that’s just information. It creates no obligation to do any specific work.

                1. Yes it does, otherwise it’s false advertising.

                  1. So what? Fundamental rights are fundamental rights.

                    Your “false advertising” complaint can be contested as a false advertising complaint based on whatever the rules are for that. It’s probably not actually false advertising by any legal definition, but I don’t know every statute everywhere.

                    Any in any case, false advertising isn’t punished by involuntary servitude.

                    Fundamental rights are not casually lost.

                    1. The Supreme Court has the power to sentence anyone to DEATH for any false or misleading advertising!! You really think the Supreme Court is going to force the baker to bake a cake for a wedding that took place years ago??? If the baker continues to run false advertisements of course the state will be the party to take action to stop the baker from engaging in that activity.

                  2. It would be false advertising if your ads said you sold custom wedding cakes to all comers, but I presume the ads didn’t say THAT.

                    More and more I’m convinced that left-wingers are incapable of reading without reading into.

              2. Do you think a resume is a promise to perform specific services too?

                1. I told you, if a couple books a wedding venue in a small town they should be able to look at what the proprietors in the town advertise and makes plans just like every other American. If they see a baker on Main St advertising wedding cakes they shouldn’t have to inquire if the baker bakes for every type of couple or just couples with blue eyes or just couples with blonde hair.

                  1. Answer about the resume. Because every company in America has a cause of action against everyone who sent a resume and didn’t accept the job offer.

                    Either that, or people can turn down jobs regardless of saying what they do for hire.

                  2. If they see a baker on Main St advertising wedding cakes they shouldn’t have to inquire if the baker bakes for every type of couple or just couples with blue eyes or just couples with blonde hair.

                    That may be a statement about what you wish the law was, but it’s just not how false advertising law actually works.

          2. Pretty certain that for all of the false advertising blather from mr cremmington, that the case was not argued before scotus on the basis of false advertising.
            I do some surgery, but if you want a sex change operation, you will be certainly unhappy with the results, as this is quite a bit out of my area of practice. Bespoke services, versus commodity services might be more along the lines of what scotus considered.

            1. If the baker advertises custom wedding cakes the baker has to bake a custom wedding cake…I’m not sure why that is such a difficult concept to understand??

              1. It’s not difficult to understand; it’s just not true.

            2. The real argument is that specific categories of people have rights to be satisfied and everyone else is a second-class individual with an obligation to cater to the satisfaction of the first-class individuals.

              So get ready to be punished for not doing that surgery. But some money will make your legal problem magically go away.

          3. An architect designs custom buildings. Can you force him to design a building for a site he doesn’t like?

            Creative work can’t be compelled. Custom work is generally creative work.

      4. They say they bake wedding cakes, not gay wedding cakes.

        Those are two different events.

    2. This is the position of most of us at Reason (I’ve written EXTENSIVELY supporting this position both on the blog and in the magazine) and it was the position the Reason Foundation officially took in an amicus brief to SCOTUS on the Masterpiece Bakeshop case. Which I wrote about, back in the day, here at Reason!

      1. That’s segregation where Black people had to navigate the American South with a special book to see which businesses would take their money…we can’t return to segregation.

        1. You should amend the Constitution to repeal the 13th Amendment if you don’t like it.

          Except the courts already incorrectly, and in violation of their oaths, hand-waved it away.

          1. Adults that have to get a business license and pay taxes have to behave like adults and can’t throw a tantrum because they don’t like that two men can get married…the same people didn’t like it when Black Americans were allowed to sit next to them at a lunch counter but they eventually got over society telling them to STFU and behave like adults.

            1. Fundamental rights don’t disappear by saying “adults” or “business license”.

              1. Yes they do—once you start a business and advertise you have to accept lawful paying customers.

                1. That’s the argument that lost in Citizens United. Fundamental rights, in fact, don’t disappear.

                  1. Nobody has a gun to a person’s head forcing them to open a business and then advertise. The baker advertised that he bakes custom wedding cakes…and then a couple saw the advertisement and tried to give him money for doing what he advertised he did!?! If he doesn’t want to bake wedding cakes he shouldn’t advertise that he bakes wedding cakes.

                    1. Regardless, he has fundamental rights.

                      What if he offers to do it for $10,000,000? He is agreeable to doing what he advertised. He never advertised rates. What’s your complaint in that case?

                    2. Alternatively, he agrees to deliver it in June of the year 2237. Of course he never advertised a specific delivery date. Every delivery date is negotiated individually based on his whims. So no problem.

                    3. The argument is, “Nobody has to do X!”

                      But everybody has to do SOMETHING, and what’s to keep you from making every something into X?

                      Ultimately, I decide this on the basis of the 13th amendment. Involuntary servitude is illegal in the US, you can’t force somebody to work for you.

                    4. Opening a business and advertising is just like slavery…right?? U r soooper smart. 😉

                    5. Nope. Telling businessmen who they have to work for is just like involuntary servitude. They’re providing a service, and you’re making it involuntary.

                2. Yes they do—once you start a business and advertise you have to accept lawful paying customers.

                  You’re not that guy Oshtar that used to post at Volokh, are you? It’s the same basic error, and it’s just not correct as a general statement. To be sure, there are laws saying that you can’t refuse service based on membership in certain protected groups, but that has nothing to do with false advertising.

  7. Counter argument.

    By denying CSS the opportunity to place children, will fewer children get placed? Do the other agencies have the bandwidth to take up the slack?

    1. A quick google search suggests that is exactly what happened when the policies being supported by Prof. Somin are instituted. The poor deprived children are being deprived because of the decision to remove from the foster parent and adoptive parent rolls individuals who prefer working with the religiously-associated agencies. One article had the head of one agency (maybe Illinois, iirc?) who outlined their standards, which seemed pretty reasonable and for the most part evidence-based.

  8. A so called libertarian would recognize that the government should not be in the business of promoting morality beyond what is absolutely necessary. (ie murder etc). A minimalist neutral government does not mean a big interventionist one that actively compels and promotes an ideology, even if that ideology is ‘nondiscrimination’. Since the government is so massive that they can literally crown the winners of entire fields of industry, enforcing woke morals on government contractors has been an easy way for social justice zealots to circumvent the usual legislative controls and opposition to government interference in the private sector. This is just another example

    By mandating that agencies cant pick and choose based on SS but can still do the same for a bunch of other things, like discriminating against single men you’re doing the quite unlibertarian thing of choosing a moral side.

    Also its absurd to claim that lifestyles such as like SSR have absolutely no relevance to anything outside of itself. Just break down voting demographics and its obvious factors such as this have a major impact that probably trickles down to all aspects of life. Agencies are still allowed to discriminate for and against all sorts of BS demographic traits which are probably far less important. But we have to protect this demographic trait because its sacred I guess.

  9. Somin : Placing foster children with the best* available caregivers is pretty clearly a compelling interest, if anything is. And in this instance, unlike Hobby Lobby or Masterpiece Cakeshop, there may be no other way to ensure that the people in question can get the services they need.

    If some of the “best available caregivers” are same sex couples their services are not denied to the children of Philadelphia, since in the article by Helen Alvare which Somin links to, she says :

    ”Furthermore, CSS is willing to help same-sex couples find other agencies.”

    Somin : Unlike most customers and workers, the children are a captive market whose fate largely depends on decisions by government officials

    Well this is obviously untrue, because the officials of City of Philadelphia have plainly (and IMHO wisely) decided that they are not up to the task of placing children with suitable caregivers, and have decided to rely instead on private agencies to undertake this difficult and specialised task. It is on this specialized agency task, and on the subsequent care given by the caregivers that the fate of the children largely depends.

    I have no idea what the correct answer is in law, but purely as a matter of public policy this looks much more like the officials of the City of Philadelphia exercising their political prejudices at the expense of the children for whom they have responsibility, rather than any attempt to improve those children’s chances.

    How can it possibly benefit the unfortunate children of Philadelphia to dispense with the services of long standing agencies, of whom no serious complaint as to their competence can have been raised, else they’d have been shown the door long ago ?

    * “best” – the best is of course the enemy of the good, and any kind of standard that requires a solution that is “the best” is simply an invitation for the relevant arbiter to garland his own opinion as “the best.” Much wiser to have a standard that requires the arbiter to find the proposed solution manifestly unsuitable rather than merely “not the best.” Helps avoid megalomania in the arbiter.

    1. Yes, same-sex couples can participate in the system. But they can’t “compete” to serve those children whose cases are referred to CSS.

      On your other point, the children’s fate does indeed depend on the decisions of government officials, even when the latter use private contractors to do some of the work in question. It is those government officials who choose to contract with CSS (as opposed to another agency).

      1. H#$= s÷$t! Somin actually made a reply instead of his usual tape recorder monologues. Is this the apocalypse?

  10. Shouldn’t compelling interest be demonstrated by actual evidence of specific harm having occurred? Is there any such evidence?

    1. This is Somin’s reasoning for specific harm: “If they end up with CSS or another organization with similar views, they will lose the chance to be placed with a same-sex couple…”

      The ranking of best adoptive parents has the same contorted system as colleges trying to do anything but a straight meritocracy. Cause it wouldn’t look right to give all the kids to stable white couples with good jobs, good schools, and prospects for raising kids who will themselves later go to college, get married and have kids in that specific order.

      1. Shouldn’t there be evidence that Somin’s story is:

        A. Something that actually happened.
        B. Actually injurious in a non-trivial way

        If it fails the first, it’s imaginary. If it fails the second, it’s not a compelling interest, it’s just a curiosity.

        So is there such evidence?

  11. Here is a suggestion for any service placing children in a home. When a child placement service is given a child in state custody for placement if that child is not placed after a set time that child could be then placed by any child placement service that is approved by the state. The one that places the child would then get the credit for that placement. Now if the child is placed by a private concern then that private concern would be the one who is to place the child in the new home according to the agreement between the private concern and the child placement service.
    Situations as these there is always going to be some that is hurt some more and some less. The point is to make the ‘hurt’ the least as possible.
    Doing as I suggest here if the Child service organization has a bias against gay couple if they can place the child within the timeframe allow by state then the child is not hurt but if they cannot then other agencies that don’t have a bias against gay couple will get the chance to place the child. This would work in the other direction aslo. If the placement agency who would place the chile in a gay couple home so be it but if the time frame has expired other agencies would also have a chance to place the child by their standards and if that agency places the child then so be it.

  12. FYI, Brief from CSS here.

    The brief from CSS here is pretty strong, IMO.

    The city of Philadelphia has a history of making exceptions, exemptions, and more in regards to foster care, and specifically categorizing families on race, martial status, and disability status in regards to the placement of children. Philly seems to be singling out CSS for “Special treatment” to the disadvantage of its foster children…denying placing siblings together because one is with CSS already, Philly would rather place kids in institutional care, rather than foster homes, due to its dispute with CSS.

  13. A foster home is a small boarding school for privacy type purposes, not a family.

    The Supreme Court has consistently held that states have a compelling interest in educating and placing children in gender-diverse environments, just as they have an interest in educating them in racially diverse environments.

    Suppose the shoe were on the other foot and the state required gender diversity as a condition of being a foster parent. All the Courts’ educational diversity cases support its compelling interest in such a requirement.

    An LGBT organization claims a religious exemption from the requirement.

    Would it have a claim?

  14. “If they end up with CSS or another organization with similar views, they will lose the chance to be placed with a same-sex couple…”

    That is a good thing, Twinkle-toes.

    Please visit my website at

    1. “That is a good thing, Twinkle-toes.”

      How’s your big lawsuit going, you bigoted, superstitious rube?

    2. Ahh yeah, the argument that if you advocate for equality for gays it probably means you’re gay!

      There’s a reason why your side’s arguments oftentimes crumble so quickly.

  15. My general view here is that the Establishment Clause prohibits states from conditioning funding of religious orgainzations (as distinct from individuals) on giving up doctrinal beliefs. If a state funds religious organizations, it has to accommodate them.

    In general, it can choose to avoid this issue by not funding religious organizations. I read Trinity Lutheran narrowly. In my view, Trinity Lutheran only applies when the state funding involved doesn’t implicate any religious doctrinal issue. The minute it does, as it does here, the state’s options are fund religious organizations and accept that it will need to accommodate them, or don’t fund religious organizations period (on the particular issue). It can’t fund only religious organizations that follow what the state regards as orthodox and not others.

    The issue here, again, is the establishment clause. A state’s conditioning funding on a religious organization doing what the state regards as orthodox is an establishment clause issue, separate from free exercise considerations. The issue is thus not controlled by Employment Division v. Smith. Smith involved an individual believer, not a church, and hence was strictly a free exercise case, not an establishment case.

    I recognize that a religious organization can’t have it both ways. It doesn’t have an inherent right to funding, at least not when its doctrines clash with the state’s. But the state can’t have it both ways either, and doesn’t have the right to fund only religious organizations whose doctrines it finds agreeable.

    1. So if you want to have a non-discrimination policy for your contractors, you must categorically exclude religious organizations?

      That’s your argument?

      1. If you want to have a policy that results in excluding religious organization, yes. You can’t fund religious organizations whose doctrines you support and not ones who don’t. That’s an establishment of religion.

        Establishment means you can’t be selective when it comes to funding religious organizations. You can’t fund religious organizations you like and exclude ones you don’t. That means if you allow religious organization, they are entitled to exemptions from funding conditions. And under the play-in-the-joints doctrine, states have an option to not fund rather than accommodate.

        It’s a straightforward read of the recedents. Until not lokg ago the First Amendment was interpreted to prohibit any government funding of religion. That doctrine was replaced by the play in the joints doctrine. Trinity Lutheran did not completely supplant the doctrine, and its facts involved a case where the church wasn’t objecting to any funding conditions. The logical consequence of reconciling these cases is that Trinity Lutheran only applies when no church has asked for an exemption from funding conditions.

        Religion is not speech, and it is not a racial or ethnic group. It is sui generis, its own thing, with its own constitutional rules.

        1. Right.

          So a given government office has a cafeteria, but instead of hiring it’s own kitchen staff and what-not, it puts out a call for conractors to staff and run the kitchen. Initially they have a menu that they would like to be served. This includes things like bacon, ham, beef, and so-on.

          Per your read, if a kosher kitchen throws it’s hat int he ring for the contract, the office is constitutionally prohibited from holding it against them that they won’t serve bacon.

          Per your read, if a Hindu kitchen throws it’s hat in the ring for the contract, the office is constitutionally prohibited from holding it against them that they won’t serve beef.

          Per your read, if a Buddhist kitchen throws it’s hat in the ring for the contract, the office is constitutionally prohibited from holding it against them that they won’t serve meat.

          Per your read, if the office wants to say “any prospective contractor must be willing to serve the menu we have specified”, it must categorically exclude all religious contractors, even ones that are willing to serve the specified menu.

          And further, you think this read is somehow in compliance with Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) and similar SCOTUS cases that have held that you can’t categorically refuse religious orgs a contract or grant or whatever purely on the basis of them being religious, but that it must be for cause.

          That’s your argument?

  16. Well, I’m a New Age type, up to date with all the *penumbras and emanations* of the Constitution, and my reading of the penumbras is that a child should if at all possible be raised by an opposite-sex married couple. It’s the child’s penumbral right!

    1. That’s an innovative reading of the 3rd Amendment. But if you think about it, it’s obvious.

      Opposite sex troops are not normally quartered together, so an opposite sex couple are clearly not troops.

      Same-sex troops are quartered together all the time. So two same-sex individuals may be troops. And it would violate the child’s 3rd Amendment right if they were. Therefore it’s the child’s right under the 3rd Amendment not to be placed in that situation, or even to be at risk of it.

      This penumbra stuff can mean anything. No wonder the left likes it.

    2. Strawmanning 9th Amendment jurisprudence instead of engaging the OP’s argument is the last refuge of the shallow.

      No one except the right has talked about penumbras and emanations for decades.

      1. So the Left agreed to overrule the *Griswold* decision?

        1. Dicta is dicta; the decision does not rely on that.

          1. The Bears relied on Ditka to be the most awesome team ever, and anyone who says otherwise is a hater from New York City.

      2. Anyway, I believe you are mistaken, it was on of the *concurring* opinions in the Griswold case which discussed the 9th Amendment, the main opinion simply included a quote from the 9th Amendment among a grab bag of constitutional provisions it cited to show the penumbras.

        1. Where is my mistake? Your strawman doesn’t get at any actually operative current jurisprudence. But that won’t stop you from using it to attack imaginary leftists!

          1. “Strawmanning 9th Amendment jurisprudence”

          2. “Your strawman doesn’t get at any actually operative current jurisprudence.”

            I was wondering why it was so hard getting a pack of Trojans at the convenience store. I assumed it was because the proprietor was Greek, but now I realize it was because it would have been a crime to sell them.

  17. Any reliance on Employment Division v. Smith is inapplicable because these are not “neutral, generally applicable laws.” Instead, these rules are specifically designed to target and exclude Christian ministries from participation in the process.

    Prof. Somin should read up on some post-Smith decisions, like Church of the Lukumi Babalu Aye, Inc. v. Hialeah.

    1. these rules are specifically designed to target and exclude

      You have not proven that.

      1. That’s one of the beautiful things about Smith and it’s progeny: the burden rests on the state to show that the statute is neutral and generally applicable.

        I’d encourage you to read the CSS brief linked above to see how the Philadelphia DHS specifically targeted CSS and does not equally apply it’s rules.

        Arguing that this is a neutral rule, rather than one targeted at Christian in general (and CSS in particular) shows a conscious disregard for the facts.

        1. If that’s where you think the burden is, you should read up on some post-Smith decisions, like Church of the Lukumi Babalu Aye, Inc. v. Hialeah.

  18. Well, that update sure changed things. Who the kids get placed with is up to the city, and the agencies are just recruiting possible foster parents the city selects from among.

    Looks to me like the city doesn’t have a case at all, and is arguably constructively discriminating against religious foster parents.

    1. The plaintiff’s brief is pretty compelling. Philadelphia did a lot of post-hoc rationalization to try to keep discriminating.

      At the same time, it was actively reducing options and keeping siblings apart, due to its discrimination.

  19. You’re making this more complicated then it needs to be.

    Can a government agency that contracts with private service providers require that those private service providers obey a non-discrimination policy that goes beyond state law?

    That’s it.

  20. Once again my basic view is that in this situation, somewhat like that in Masterpiece Cakeshop, the state has to be careful about structuring its rules to take religious considerations into account and cannot ride roughshod over them. But if it is careful, it can mostly get what it wants.

    My basic disagreement with Professor Somin is that the state can’t have a compelling interest in placing children with same-sex foster homes.

    I have two reasons for this. The most obvious reason is the long line of education cases where the Supreme Court has said the state has a compelling (or at least heightened) interest in placing children in a gender-diverse environment. You can’t have it both ways. What’s sauce for the goose has to be sauce for the gander. Judges have to be subject to some sort of judicial estoppel. You can’t assert a fact (e.g. gender diversity is what’s best for children) when it leads to convenient consequences, and then turn around and assert the opposite the minute the consequences become inconvenient.

    In addition, more generally, I think compelling interests are limited to a narrow set of things implicating survival, emergency stuff, war, fire, plague, preventing a murder, and stuff like that. This doesn’t come anywhere close. After all, if you have a compelling interest you can take a child away from its natural parents. What the state happens to think is the best interest of the child rarely rises to a compelling interest.

    1. You can’t assert a fact […] when it leads to convenient consequences, and then turn around and assert the opposite the minute the consequences become inconvenient.

      I think all of human history, including human history that includes courts, calls bullshit on this claim.

      The most obvious reason is the long line of education cases where the Supreme Court has said the state has a compelling (or at least heightened) interest in placing children in a gender-diverse environment.

      You don’t see any difference between where kids go to school and where kids go to sleep, huh? That said, PA, like many other states, is perfectly happy to place kids with single adults, so this kind of falls flat on the facts.

      In addition, more generally, I think compelling interests are limited to a narrow set of things implicating survival, emergency stuff, war, fire, plague, preventing a murder, and stuff like that.
      … Are you aware of what the compelling interest for non-discrimination law is? You seem to have missed that one. Kinda feels relevant.

      1. At a boarding school is a school that students sleep at. That’s what it is.

        And Supreme Court, in Smith v. Organization of Foster Families (1977), ruled that a foster home is just a boarding school for constitutional purposes, and foster parents are not parents in any constitutional and have no constitutional parental interest in the foster children. So far as the constitution is concerned, they are like the faculty of a boarding school.

        If you think the Supreme Court is bullshit, you wouldn’t be the first, but take it up with them.

    2. I’m trying to figure out how a SSM can qualify as “gender diverse”. What did that first “S” stand for, again?

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