The Volokh Conspiracy

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Four Observations from Fulton v. City of Philadelphia

1) Loving and Obergefell, 2) Breyer wrestles, 3) Barrett questions, and 4) Alito charges


Elections come and presidents go. But the Supreme Court continues to chug along, like nothing happens. Unless, of course the Supreme Court has to decide the election. Or if the election results in the expansion of the Supreme. For now, at least, neither option looks feasible. On Wednesday morning, as the ballots were still being tabulated, the Supreme Court heard oral arguments in Fulton v. City of Philadelphia.

The session, which lasted nearly two hours, was absolutely fascinating. Lori Windham of the Becket Fund for Religious Liberty argued on behalf of the Plaintiffs. (I am co-counsel with Becket in a different case challenging New York's lockdown measures). Hashim Mooppan, Counselor to the Solicitor General, argued on behalf of the United States. Neal Katyal represented the city of Philadelphia. And Jeff Fisher represented the Support Center for Child Advocates and Philadelphia Family Pride Respondents. An all-star cast all around. And the Justices brought their A-games.

Much of the case focused on a fairly technical fact question: should Catholic Social Services (CSS) be treated as mere contractor, or instead a licensee. There was some dispute about whether the First Amendment analysis would differ with regard to those two different statuses. This predicate factual question may give the Court an easy out to avoid ruling on the more difficult constitutional question.

This post will focus on four broader issues. First, Fulton picked off where Obergefell left off: how does opposition to same-sex marriage compare to opposition to interracial marriage? Second, Justice Breyer continues to wrestle with the Religion Clauses. He is truly conflicted about how to balance the rights of religious communities with those of the greater community. Third, we got an early glimpse of how Justice Barrett views stare decisis, Smith, and Sherbert. Fourth, Justices Alito saw this case, at base, about animus towards the Catholic church's views on same-sex marriage. In this post, I'll presume a general familiarity with the facts and history of this litigation.

1. Same-Sex Marriage and Interracial Marriage

Throughout the arguments, several Justices brought up the Loving question. If CSS was allowed to decline to evaluate same-sex couple, could another religious group be given a similar exemption for interracial couples.  For example,  Justice Sotomayor asked Windham what would happen if a religious organization asked to "exclude interracial couples" from their assessments. Windham did not answer that question directly. She pivoted, and explained that Philadelphia allows foster service agencies to consider whether a family has a disability. In other words, the state's interest could not be so compelling if it created other exemptions

Justice Barrett continued the theme:

What if there was an agency who believed that interracial marriage was an offense against God and, therefore, objected to certifying interracial couples as foster families? Would they be entitled to an exemption and, if so, how is that distinguishable from --or, if not, how is that distinguishable from CSS's refusal to certify children to couples in same-sex marriages?

Windham responded that "in Loving and other cases that government has a compelling interest in eradicating racial discrimination."

Hashim Mooppan, Counselor to the Solicitor General, gave a very similar answer in response to Justice Breyer's question: "I would differentiate the interracial marriage . . . this Court has made clear repeatedly that there's a particularly compelling interest in eradicating racial discrimination."

Mooppan cited Pena-Rodriguez v. Colorado: "race is unique in this country's constitutional history, and eradicating that type of racial discrimination pretends --presents a particularly unique and compelling interest."

Later, Justice Alito threw Moopan a lifeline. He recounted Justice Kennedy's observation in Obegefell that "there are honorable and respectable reasons for continuing to oppose same-sex marriage?" Alito added, "Would the Court say the same thing about interracial marriage?" Of course, Justice Alito was alluding to his question to Solicitor General Verrilli about Bob Jones.

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax­-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a 10 university or a college if it opposed same­-sex marriage?

General Verrilli: You know, ­­I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I don't deny that. I don't deny that, Justice Alito. It is –it is going to be an issue.

Yeah, it's going to be an issue. Now!

Later, Justices Breyer questioned Mooppan about the question Verrilli punted on: was the state's interest in eradicating opposition to interracial marriage greater than the interest in eradicating opposition to same-sex marriage.

Next, Justice Sotomayor returned to this theme, with a variation. The compelling interest concerned the elimination of the stigma attached to the discrimination.

Counsel, I've always thought that a compelling state interest that motivated our holdings in racial discrimination cases was not merely that race was important but that the burden on the people who are rejected because of race is an interest that the state could seek to protect, that a rejection on the basis of race or any protected category creates a stigma on that person and that it's a compelling state interest for the state to have an anti-discrimination law on the basis of protected classes. Are you --are you diminishing that as a compelling state interest?

Justice Kagan would pounce on this issue. She was on a mission. She wanted to corner the federal government on the Bob Jones question left unresolved in Obergefell.

First, she asked how Mooppan would compare racial discrimination with sex-discrimination.

Justice Kagan: If I understood you correctly, you said that it is a compelling state interest to eradicate racial discrimination, but it is not a compelling state interest to eradicate discrimination on the basis of sexual orientation. And I was wondering where in this scale that you're using would discrimination on the basis of gender come. Would --would that be a compelling state interest? So, for example, if there's an agency that refuses to employ women, would the state have to contract with that agency?

You know what the follow-up question to "gender" would be? Bostock! Isn't discrimination on the basis of sex the same thing as discrimination against LGBT couples? (Thank you Justice Gorsuch). Mooppan didn't take the bait. He bobbed and weaved.

Then Dean Kagan went for the kill. This colloquy must have given the HLS graduate flashbacks to 1L:

JUSTICE KAGAN: Do you think there's a compelling state interest to try to eradicate discrimination against gays and lesbians? Is that a compelling state interest?

MR. MOOPPAN: So we're not denying the significance of that interest in the abstract. What we're saying is that -

JUSTICE KAGAN: Is it a compelling state interest, Mr. Mooppan?

MR. MOOPPAN: In the abstract, perhaps, but, on the facts of this case, the government has undermined that interest -

JUSTICE KAGAN: I don't want -

MR. MOOPPAN: --by recognizing -

JUSTICE KAGAN: --Is it perhaps, or is it yes or is it no?

MR. MOOPPAN: Well, Your Honor, we haven't taken a position on that question….

Later, Kagan return to the theme, and and asked if racial discrimination is a "super-compelling" state interest (sort of like a super-precedent!):

JUSTICE KAGAN: That's why it's super-compelling. Is that the idea?

MR. MOOPPAN: That's right. As this Court said in Pena-Rodriguez, where it recognized an exception to the jury impeachment rule for racial discrimination, particularly in -

JUSTICE KAGAN: Yes. I mean, race is sui generis in our society in all kinds of ways, but a compelling state interest usually allows the state to act. It doesn't usually; it does.

MR. MOOPPAN: Right. And the question is whether the government has undermined that interest by recognizing exceptions.

I think Mooppan did about as well as he could given the United States's position. There is not a good answer to the questions. Once you concede that the state interest for interracial marriage is different from the state interest for same-sex marriage, you have to explain why. Justice Kennedy's offering in Obergefell only gets you so far. And given Bostock, you have to now contend with why sex discrimination is different. (Thank you Justice Gorsuch).

Neal Katyal, Philadelphia's attorney, acknowledged that the question was not answered:

MR. KATYAL: Justice Sotomayor asked that question, apart from race, and I didn't quite hear a response from the other side.

Later, Justice Barrett returned to this issue during her questioning of Jeff Fisher.

JUSTICE BARRETT: I want to sneak in other question. I think we would agree that there's really not any circumstance we can think of in which racial discrimination would be permitted as a religious exemption. Can you think of any example in which saying, as, you know, CSS has done here, that they, you know, will not certify same-sex couples, that --where an objection to same-sex marriage would justify an exemption? Or is it like racial discrimination?

Fisher took the issue head-on. He saw no difference between interracial marriage and same-sex marriage: the compelling interest analysis would be the same.

MR. FISHER: Well, Justice Barrett, I think for purposes of your analysis here, it is like race discrimination. I understand that race is special in many ways in the Court's jurisprudence. But, as Justice Gorsuch stressed in Masterpiece Cakeshop, it is the proudest boast of free exercise jurisprudence that we do not judge the legitimacy or the offensiveness of religious beliefs. If they are deeply felt, which, as we know from the Bob Jones case, for example, some religious organizations do have deeply felt views about interracial marriage. I think the Court would have to accept them. Then the only question would be whether the compelling interest test applies differently in that scenario. And I don't think it would.

And Fisher tied together Jaycees and Bostock to hold that there is a compelling interest to eradicate sexual orientation discrimination (Thank you Justice Gorsuch).

As a matter of just compelling interest law, the Court has said not just that governments have an interest in eradicating race discrimination, but also in Jaycees the Court said sex discrimination, as we know from last term in Bostock, this could be thought is of as sex discrimination. And so I just don't think you could draw a line in this context between sexual orientation [and racial discrimination]

This opinion will be difficult to write. Justice Breyer recognized this issue in his questioning of Mooppan:

I'm sorry. I want to interrupt you right here because now two of you have said this, that we should write an opinion which says discrimination on the basis of race, constitutionally speaking, is different than discrimination on the basis of gender, on the basis of religion, on the basis of nationality, on the basis of homosexuality, all right? Is that the opinion you want us to write?

I don't know how the Court will resolve this issue.

2. Justice Breyer continue to wrestle with the Religion Clauses

Justice Breyer is consistently conflicted on religion clause cases. In 2005, he split his votes in the Ten Commandments Cases. In Van Orden v. Perry, he allowed the Texas monument to stand. But in McCreary County, he voted that the Kentucky display had to go. At the time, Justice Breyer wrote that the Court should work hard to avoid religious strife among between people of faith and those who oppose public displays of religion.

A decade later, during oral arguments in Zubik v. Burwell, Justice Breyer expressed a similar concern. He worried how to accommodate religious communities, while still ensuring that women would have access to contraceptive coverage. In Zubick, the short-handed Court punted, and asked the parties if there was some way to work out the conflict without the judiciary's intervention. The Court gave the parties "an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage.'" The compromise would turn on the precise paperwork that the religious organizations had to sign, and whether the government could still ensure seamless contraception coverage. I strongly suspect that this order was crafted by Justice Breyer.

During the Fulton arguments, Justice Breyer seemed to be hinting at a very similar compromise. Catholic Social Services (CSS) objected to evaluating same-sex couples for foster placements. Justice Breyer asked Lori Windham whether there is some possible workaround that would not offend their beliefs. His questions reminded me of the Zubick order. Breyer asked what would happen if CSS was allowed to "say whatever you want about same-sex" couples, and then "evaluate this couple irrespective of [whether they are the same] same or different sex." In other words, CSS could write on the report that they object to same-sex unions, but in all other regards, the couple is suitable for a foster placement.

Wyndham responded that "the head of Catholic Social Services testified that certifying a home of a same-sex couple would be in violation of that religious belief." Specifically, "a final home study includes a written endorsement of the relevant relationships of the foster parent." Windham's answer brought me back to Paul Clement's argument during Zubik. He argued that his clients could not certify the forms, because that certification would make them complicit in sin. Windham, along similar lines, said that Philadelphia was "asking CSS to . . . certify, validate, and make statements that it cannot make." She added, "I'm not aware of any case where this Court has said it's okay to "compel speech or coerce religious exercise as long as you can tag a disclaimer onto the end of it." Zubik redux.

Next Windham said it would be harmful for CSS to evaluate a family, knowing full well at the end that it could not endorse the couple: "It would be hurtful for CSS [to] . . .  interview them about their intimate relationships and their family, and then at the end of that have to say we cannot provide that approval for you and your family."

Justice Breyer was still unhappy with that answer. He asked what was the problem if CSS "put . . . to the side" whether the couple is same-sex or opposite sex, and simply say whether "they're okay or they're not okay." He added, "That's all you have to do." All CSS has to write is "are they qualified." Windham did not accept the proffer: "What they're still being asked to do is to evaluate, assess, and approve of a couple." And CSS "testified that they cannot do." She explained that CSS does not hold "an unknown or unusual religious belief." I don't know that Justice Breyer came around to CSS's position, but he tried, mightily to work out a compromise.

Later, Justice Breyer asked Neal Katyal this exact question. And he framed the issue in Zubickian terms:

JUSTICE BREYER: And the disagreement seems to be whether they now have to sign a piece of paper that says if there were a gay couple, we might have to look into whether they're qualified. And you're willing to have them say, but taking gay into account, you don't have to take it into account at all, but they don't want to do that. Now that seems to me a very narrow ground for deciding a case that has enormous implications. Could you not say, hey, we think if there ever were a gay couple and it really was a problem, you'd have to do something about it, like look into it and don't say gay? And they say: We don't even want to do that, but it's never come up. I mean, the natural thing for me would be to say, okay, you say what you want, we'll say what we want, and if it ever comes up, we'll deal with it. But it never has. Now is there any way that that has anything to do with how we would decide this case?

Here is what Justice Breyer is describing: in the rare event that a gay couple is rejected by CSS, the City can just look the other way, and "deal with it." In other words, refer the gay couple to another group. Why resolve a major constitutional issue if there is no real dispute? This sort of monologue reminds me of Justice Breyer's objection from Van Order v. Perry: for decades, no one objected to the enormous Ten Commandments display. Same in the city of Brotherly love. For two centuries, CSS has been working in Philadelphia without objection. Why disturb that natural equilibrium?

Of course, gay couples could decide to treat CCS like the Masterpiece Cakeshop--seek evaluations for the sole purpose of triggering test cases. But that sort of effort is unlikely. It is easy enough to request a cake that Jack Phillips does not wish to bake, for the sole purpose of trying to sue Jack Phillips. But applying to be a foster parent is a substantial undertaking. The transaction costs will likely limit the number of gay couples going to CCS zero, or close to it.

Finally, Breyer expressed frustration with Smith. He expressed a sympatico with his frequent sparring partner, Justice Scalia.

JUSTICE BREYER: In general, what have you thought should be the right rule? I mean, I've always thought that Smith is a problem or a solution to a problem that nobody could figure out how to answer it. If your opponents win, it's pretty hard to see how all kinds of government programs can exist with every religion making exceptions every which way for all kind of reasons, sincerely too. If you win, it's pretty hard to see how, for example, a --a religious group that wants to meet on Sunday, the only place to hold services, but there is a --there are a no parking sign, and they can't do it. I mean, they can't even hold religious services. And --and we could think of lots of examples, like abortion and so forth. And that, I think, is what led Justice Scalia to that more absolute rule. He couldn't figure out another one. So have you anything there that you can suggest? After all, RFRA is one way, but RFRA they can change, Congress, if we make a mistake. The Constitution you really can't. That's why I asked the question just to see what's in your mind.

I think Justice Breyer is underrated as a member of the Court. When he goes on lengthy monologues, he is not trying to show everyone how smart he is. He is truly wrestling aloud what is going on inside his head. We really do not appreciate SGB enough.

3. Justice Barrett Questions about Smith, Sherbert, and Stare Decisis

Fulton was the first constitutional case that Justice Barrett heard. And she gave us an early glimpse of her views--to the extent that oral arguments tell us anything at all.

First, she did not seem keen to overturn Smith--especially since this case could be resolved without doing so. Justice Barrett asked Windham:

JUSTICE BARRETT: Good morning, Ms. Windham. So you just kind of indicated that -you know, that maybe Smith shouldn't have been applied here, and you argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if you're right about that, why should we even entertain the question whether to overrule Smith?

ACB also asked a perennial question: if Smith is overruled, what will replace it?

What would you replace Smith with? Would you just want to return to Sherbert versus Verner?

I think it is possible to contend that both Smith and Sherbert are incorrect. In other words, both Justices Scalia and Brennan got the Free Exercise Clause wrong.

Next, ACB asked Hashim Mooppan another lingering question about Smith: how do you decide when a law is "neutral" and "generally applicable":

JUSTICE BARRETT: Good morning. So I'm wondering how we decide whether a law is generally applicable in the --in the relevant respect. So you said that the City recognizes a slew of exceptions, but none of them are for the same-sex anti-discrimination requirement. So it's not quite the same thing as granting an exemption, say, for, like, Sunday Sabbath observance but not Saturday Sabbath observance. That's a more apples-to-apples comparison. So how do we go about identifying what the, you know, relevant factor is in deciding whether a law is generally applicable?

She later posed a more specific hypothetical:

JUSTICE BARRETT: What if the ordinance said expressly that there shall be no exemptions permitted with respect to the same-sex marriage anti-discrimination requirement, period, and then had another section which permitted some exceptions as the City employs here, like in considering race, for example, in the placement of a child. Would that be generally applicable then, the same-sex anti-discrimination requirement, I mean?

With these questions, Justice Barrett focused on some long-simmering criticisms of Smith. Even if the case is not overruled, the Court may shed some light on Justice Scalia's decision.

Finally, Justice Barrett alluded to a question raised by Cutter v. Wilkinson, and tabled by Hobby Lobby--how do "third party harm" issues affect Free Exercise cases:

JUSTICE BARRETT: Good morning, Mr. Fisher. I have a question about something that some of the amicus briefs brought up, which was this third-party harm principle, the principle that religious beliefs can never give a believer the right to harm a third party even slightly. I'm wondering if you agree with that and, if so, if you could tell me where in law the principle comes from.

Look at her question. ACB does not acknowledge that the Court has adopted this principle. She is inquiring "where in law the principle comes from."

Justice Kennedy seemed to endorse the third-party issue in his Hobby Lobby concurrence, but he is no longer on the Court. I would not be surprised if the Court affirmatively rejects the "third-party harm" doctrine. Even if Smith is not overruled, that simple rejection would be momentous. I don't know if rejecting the third-party argument in the Free Exercise context would likewise reject it in the RFRA/RLUIPA context. (Stephanie Barclay wrote on this issue here.)

4. Justice Alito charges

Justice Alito is never one to mince words. During his colloquy with Katyal, Justice Alito seemed to get a bit annoyed. He argued that the lengthy discussion about the precise status of the CSS was besides the point. This case was really about animus.

JUSTICE ALITO: Look, if we --if we are honest about what's really going on here, it's not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It's the fact that the City can't stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage. Isn't that the case?

MR. KATYAL: Absolutely not, Justice Alito. The text, of course, of all of this doesn't say anything like that. As the district court and third circuit found going evidence by evidence, piece by piece, they rejected that idea.

For Justice Alito, this case is merely Masterpiece Cakeshop redux. The lower court rejected any finding of animus. And it will be tough for the Court to disregard that finding of fact.

Later, Justice Kavanaugh sounded a similar note. He suggested that Philadelphia was "looking for a fight." After all, no one had ever objected to CSS's practices, and gay couples (unsurprisingly) did not seek their evaluation.

And it seems like we and governments should be looking, where possible, for win-win answers, recognizing that neither side is going to win completely on these issues given the First Amendment on the one hand and given Obergefell on the other. But, when I look at this case, that's not at all what happened here. It seems like Philadelphia created a clash, it seems, and was looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court even though no same-sex couple had gone to CSS, even though 30 agencies are available for same-sex couples, and even though CSS would refer any same-sex couple to one of those other agencies. And to be clear, I fully appreciate the stigmatic harm. I completely understand that, fully appreciate it. But we need to find a balance that also respects religious beliefs. That was the promise explicitly written by the Court in Obergefell and in Masterpiece, explicitly promised that respect for religious beliefs. And what I fear here is that the absolutist and extreme position that you're articulating would require us to go back on the promise of respect for religious believers.

Katyal's response was a bit testy. It wasn't Philadelphia who brought this case to SCOTUS. It was Becket.

And then, lastly, when you say the City was looking for a fight or something, we couldn't profoundly disagree more. We certainly didn't rush this case to the Supreme Court. Indeed, we won it in both courts below and the first one, after a three-day hearing looking at live testimony, looking at precisely the allegations you said about religious hostility, and all of those dissolved.

What a fascinating case.

NEXT: Federalist Society Panel on the Free Exercise Clause Next Monday (the 9th), 11 am to 12:15 pm Eastern

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  1. The notion that the Govt. gets to decide which religious doctrines are offensive and which are not (or which are super-offensive, and which are only moderately offensive) is pretty frightening.

    The real answer is, there is no theoretical difference between opposing inter-racial marriage, and opposing same-sex marriage. It's just that one became unacceptable decades before the other, and the latter is still considered acceptable by a sizable minority of Americans.

    I happen to think that in all these areas, the private party should be free to do as they like, so long as there is full disclosure. And at the same time, the Govt. does not have to spend its money on something it finds harmful or socially negative.

    1. I .... agree with you.

      As I wrote in the open thread, I was shocked that there wasn't a better canned response to the Loving question. Especially by Windham (CCS).

      If you're basically saying, "SSM is different from IRM (interracial marriage) because we all know that religions that discriminate against SSM are okay, and those that discriminate against IRM are insane in the brain!" then you've not proposing a workable test, no matter how much you try to shoehorn it into "compelling interest."

      1. If you’re basically saying, “SSM is different from IRM (interracial marriage) because we all know that religions that discriminate against SSM are okay, and those that discriminate against IRM are insane in the brain!” then you’ve not proposing a workable test, no matter how much you try to shoehorn it into “compelling interest.”

        Right. But the thing is, the reality is that it is the popularity of bigotry against gays as opposed to bigotry against Blacks that is exactly what motivates all the litigation in this area.

        Conservative religious groups want to be able to crap all over gay people, and they want to do it while thinking of themselves as better than and not prejudiced like the folks at Bob Jones University circa 1981 who enjoyed crapping all over Black people.

        The reality is there should be an exemption for bigotry in purely religious activities (and it should be labeled a "Bigotry Exemption", no sugar coating), meaning if a Church wants to, say, exclude gays or Blacks from the priesthood, they should be legally allowed to do so.

        But anything that is a secular activity? No exemption at all. We can let other groups handle our adoption process if conservative Christians can't get over their hatred of the sodomites long enough to apply a best interests of the child standard.

    2. Do you agree this case is one about where government spends it money because CSS is being hired as a contractor to screen prospective foster parents?

        1. I doubt SCOTUS will go there (Alito, Thomas and Kavanaugh all indicated otherwise), but it would be nice if they did to avoid the Smith questions.

    3. Dalits, in India and Hindu religion are most certainly discriminated against. But, since they are not Christian, I suppose that is OK. Now go after Muslims, who emphatically oppose homosexuality...

    4. Yeah, it struck me as a non-lawyer that the arguments of CSS and the government in the first section were particularly terrible. It's pretty clear there's no logical difference between racial and sexual orientation discrimination from a compelling interested point of view. It doesn't look like the courts going to rule that way though.

      I also agree with Professor Blackmun's assessment of Breyer. He consistently thinks critically and neutrally, and has shown he is capable of both being independent and taking the middle ground.

      1. The problem is that we went down the wrong road with anti-discrimination legislation in the first place. The long term implications were always obvious: That which wasn't forbidden would eventually become mandatory.

        We're just watching the inevitable working out of a basic mistake: Treating private and governmental discrimination the same.

        1. Treating private and governmental discrimination the same.

          If you're on-board with prohibiting the government from discriminating while allowing private actors to discriminate, why would you give the government an out by saying "but if you contract out, you can just pay someone else to discriminate for you and we'll call it good"?

      2. " It’s pretty clear there’s no logical difference between racial and sexual orientation discrimination from a compelling interested point of view. It doesn’t look like the courts going to rule that way though."

        Why not? Even if there is a compelling interesting in eliminating racial discrimination, that doesn't mean that there is a compelling interest in eradicating anything that the government might not think is fair.

        If someone wants to open a lunch counter that only serves people with detached earlobes, the government interest in preventing that is not the same as the government interest in preventing racial discrimination.

        1. If someone wants to open a lunch counter that only serves people with detached earlobes, the government interest in preventing that is not the same as the government interest in preventing racial discrimination.

          Currently? Sure.

          If a local, state or federal government passes a law prohibiting discrimination in public accommodations on the basis of earlobe integrity? Then the government has stated it's interest.

  2. PS- My two comments after reading this.

    1. Alito, man. That was a terrible question from a terrible justice, albeit ably handled by Katyal.

    2. I give props when they are due. This is, by far, the best Blackman post I can remember reading in some time.

    1. I mostly agree with you about Blackman's posts, but I thought <a href=""this one, and his referenced paper, was quite good too.

      1. I don't remember seeing that one!

        I have to admit, while I generally dislike Backman's posts regarding the pandemic, he does usefully provide a way of thinking about essential/non-essential designations.

        That said, I think there will be tension between the labeling of constitutional rights (which is one thing) and government labeling of services/businesses as essential/non-essential during a pandemic.

        Power and the internet might be essential, but isn't a constitutional right.

        1. I also recommend Marty Lederman's take on Fulton. I think he hit the nail on the head on what the crux will be: when do exemptions make a law not generally applicable. Blackman in the above referenced paper argues any exemption does (most-favored nation status). I hate that standard. To Blackman's credit, he notes that Kavanaugh incorrectly thinks that's the current standard.

    2. Agreed. Wow, this is an amazing Josh Blackman post.

  3. Very good post. A couple of thoughts.
    Read Jefferson's Notes on Locke and religious freedom and you can extract quotes to support any opinion on free exercise vs. state rights. His notes focus on the same questions the court will have to wrestle with.
    Justice Thomas came closer to Solomon than the other Justices asking the city: "your goal is the best interests of the child?"
    Neither party's position is instructed by the 'best interests of the child" rather based on doctrinal preservation.

    1. To the contrary, CSS is explicitly arguing that it should be permissible for them to put "would-be parents are straight" as a higher criteria then "best interests of child".

      It is the city that is saying that the parent's sexuality cannot be a higher criteria.

  4. They just better make the right ruling, not more Roberts and Gorsuch fueled nonsense.

  5. Absolutely amazing how many contortionists can fit in one room. If only freedom of association had been honored, and the government itself simply banned from racial discrimination per the 14th amendment, so many legal arguments would not even exist.

    (I understand this case is a government discrimination problem, but most of the wiggly precedents would vanish)

    1. "If only freedom of association had been honored,"

      Speaking of penumbras and emanations .... 😉

      1. "Speaking of penumbras and emanations …."

        What's that smell? Oh God, someone ran over a skunk.

  6. "He asked what was the problem if CSS "put . . . to the side" whether the couple is same-sex or opposite sex, and simply say whether "they're okay or they're not okay.""

    Wow. Breyer really does NOT understand CSS's position, does he? Does he actually think CSS looks at a same sex couple, evaluates them, finds them qualified, and then applies this arbitrary criterion they think is utterly unrelated to whether they'd make good foster parents?

    No, they think being 'gay' is one of the things you look at to determine if somebody would make a good foster parent. They think it's in the best interests of the child not to be placed with same sex couples.

    1. " No, they think being ‘gay’ is one of the things you look at to determine if somebody would make a good foster parent. They think it’s in the best interests of the child not to be placed with same sex couples."

      That's long-winded for "they're bigots."

    2. I get the impression he wants them to be able to say "if they weren't a same-sex couple, they would meet the criteria of good parents but, because they are, they won't."

      1. Well, that's strange, because he seems to be asking that they say, "They'd be good parents, but they're a same sex couple."

        But CSS's position is that SS couples wouldn't be good parents, so they can't say that.

        1. "But CSS’s position is that SS couples wouldn’t be good parents, so they can’t say that."

          That doesn't seem to be the argument that they were making at oral argument, it was simply that CSS couldn't endorse the *relationship*, not that they couldn't endorse the parenting capabilities of the people in the relationship.

        2. They're position was they couldn't endorse the relationship. Breyer's question is whether they could talk about the other qualifications while keeping a carve out for specifically that one issue and was told that doing so would be endorsing the relationship (in the view of their clients).

    3. That is probably CSS's official position now, but I wonder if (i) it's actually how they operate; and (ii) for how long.

      Catholic Charities of Boston used to have a contract with the state for adoption placement. The "caring professions" people who actually ran the organization were ordinary members of their social-political class and had no problem placing children with same-sex couples or single parents. They were doing this before the state even required it.

      In, I think, 2005-06, the bishops started paying close attention to the situation, in part because now the state was requiring such placements and the bishops were amazed to learn they were already occuring. The bishops demanded this "gravely immoral" practice stop. CCB's board unanimously rejected this and voted to continue placements. The bishops raised the stakes, board members quit, and donations fell. Whatever was left of CCB then simply canceled its contract with the state because it could not comply with the equality mandates.

      1. Mostly right.

        The non-discrimination law was old (late 80s, I think) and between when it was passed and when the diocese noticed, the agency placed a handful of kids with same-sex couples. I think it was mid single-digits, but it may have been in the teens. Really wasn't a lot, and it was always when they couldn't find a straight family first†.

        The diocese finally noticed because some well-meaning reporter wrote a feel-good human interest story about how even the Catholics were fine with gay folk. It blew up, and that's when they pulled out.

        But the law wasn't new, and Catholic Charities wasn't doing it out of the goodness of their hearts, but just because of state law.
        †Gay couples have a long history of adopting/fostering "problem cases" that are hard to place, because for most of American history agencies have discriminated against gay couples.

  7. " She explained that CSS does not hold "an unknown or unusual religious belief." "

    Racism is neither unknown nor unusual in today's America. Watching the bigots squirm and wriggle here probably provides a glimpse concerning the legal and linguistic gymnastics in which racists engaged throughout yestercentury.

    1. There is nothing virtuous or noble about denigration and discrimination based upon animous to religion. There is not a right to belittle, disparage, and hurl vitriol toward individuals who are religious or who are not religious. If we are going to have hate speech laws, they should/do apply to hate speech toward religion. Religious intolerance in the name of advancing LGBTQ or other issues is not immune from being considered hate speech and bigotry. Your religious intolerance is not virtuous and should be denounced.

      1. There is not a right to belittle, disparage, and hurl vitriol toward individuals who are religious or who are not religious

        That'd be the First Amendment, actually.

        If we are going to have hate speech laws [...]

        We don't. They'd conflict with the First Amendment.

  8. TBH, no government has yet to establish a compelling state interest in same sex marriage that differentiates it from other couplings that have no chance to accidentally result in a baby being brought into this world.

    1. No case has asked them to.

      In Romer v. Evans (1996), there was no claim that gay folk were being treated the same as other folk inclined to non-procreative sex.

      In Lawrence v. Texas (2003), there was no claim that gay folk were being treated the same as other folk having non-procreative sex.

      In Windsor v. United States (2013), there was no claim that gay marriages were being treated the same as other infertile marriages.

      In Obergefel v. Hodges (2016), there was no claim that gay marriages were being treated the same as other infertile marriages.

      And int his case, there is no claim that gay couples are being treated the same as other infertile couples.

      In fact, every time someone tried this ridiculous argument, "gays can't have babies", it's been pointed out that whatever is being discussed already includes couples that can't have babies.

      There's a reason "but no babies!" has been a losing argument for decades.

  9. Here is what Justice Breyer is describing: in the rare event that a gay couple is rejected by CSS, the City can just look the other way, and "deal with it." In other words, refer the gay couple to another group. Why resolve a major constitutional issue if there is no real dispute?

    I bet this is where this ends, ultimately. CSS has rejected no one, did not refuse anyone, so why even try to answer the question.

    1. But, CSS says they have a sincere religious objection to stating any same-sex couple is qualified. If we go the Breyer route, we must first conclude CSS's religious exercise is not substantially burdened. I'm having trouble seeing how you do that given Thomas v. Review Board.

      1. On further reading, I think Breyer is asking the city to turn the other way and if a gay couple is rejected by CSS for qualification analysis, just refer them to another agency. That strikes me as a decent compromise, but the city didn't want it. Unfortunately, they might not like the outcome and I won't like the impact a broad ruling might have on a case that could have been avoided and shouldn't be the vehicle for a broad holding.

        1. As I understand it, CSS already does that referral themselves.

  10. I would treat this just like I treat Masterpiece Bakery—marriage is a civil institution with a clear definition. So if you have a problem with weddings and marriage that now includes unions between two men and two women then you just have to find a field where you don’t have deal with marriage and weddings in any fashion. Many fields exist in which marriage and weddings never play a role.

    1. Why can’t the state simply declare schools to be civil institutions and say that if you have a problem with the way the state defines a school, you just can’t do it? No religious schools, no religious problems.

      1. Nobody wants to do that. But marriage is a civil institution and at some point if you disagree with too many American civil institutions you just have to leave the country and relinquish your citizenship. So if you are an American that is grossed out by the act of two men signing a marriage license then you have to move to Palestine or Afghanistan or one of the many countries that outlaw same sex marriage.

        1. "Nobody wants to do that."

          Yeah, right. Nobody thinks they can get away with doing that yet. I think it's a pretty sure thing that a fair number of people would like to do that.

  11. The court has distinguished sex from race. Government sex discrimimation is subject to intermediate scrutiny, not strict scrutiny. It follows that any government interest in eradicating sex discrimination is important and legitimate, not compelling.

    Moreover the court has declared a compelling counter-interest. Under the Bakke line of cases, the interest in a gender-diverse educational environment permits sex discrimination.

    Accordingly, the Supreme Court doesn’t find sex discrimination to be a compelling interest at all. And if it does, it is clearly not universally or neutrally compelling. If it can make an exception for diversity of educational environment, it can jolly well make an exception for religion.

    1. This argument seems like it would fly if Smith was overturned (and the government would have to argue they had a compelling interest in this case), but it doesn't seem clear if Smith is still controlling law.

      1. There is an establishment clause argument here. Smith was strictly a free exercise case. See my comments on Professor Blackman’s previous post on this case.

      2. Also, the argument above is a Police v. Newark argument. The novelty is applying it to the Supreme Court itself. If the Supreme Court recognizes an exception to its rule, it too has to acknowledge that its rule is not universal and neutral, and hence Smith does not apply to it.

        Recap of earlier argument: the Supreme Court has indicated that a foster home does not have parental rights for constitutional person; constitutionally, it is essentially a small boarding school. Given this, the Supreme Court’s education cases flowing from Bakke, which recognize that the goal of diversity in edicational settings (racial in most of its cases but gender as well) constitutes a compelling interest justifying overriding otherwise applicable constitutional rules against discrimination, would seem to be relevant. Having declared that the state has a compelling interest in gender diversity in educational settings, and having declared a foster home an educational setting, any rule that anti-discrimination constitutes any sort of universally compelling interest against Catholic Family Services religious beliefs favoring gender divervisity would seem a hard sell.
        Services’ religious belief in gesm

        1. So, if an institution of education must have a diverse faculty, can't just decide to hire all one gender of teachers, doesn't that analogy work against the SS couples? Heterosexual marriage is more gender diverse...

  12. In this case - there are two competing constitutional questions, valid government interest in eliminating discrimination vs religious freedom. both are valid interests.

    That being said, In this case, both sides are addressing the wrong question. The correct question is what is in the best interests of the child. For 90+percent of the human population, there is a natural biological repulsion to homosexual behavior. That repulsion is a biological repulsion, not a mental bigotory,
    the outcomes of children raised in homosexual environments is generally not as good and children raised in hetrosexual environments, not withstanding agenda driven social studies that say otherwise.

    1. Yeah. This struck me as odd.

      Lots of the foster kids are mixed race, so placing them with a mixed race household is a non issue.

      Is it controversial to place white kids with white patents?

      Placing kids with same sex couple is a social burden on the kid. It’s not the kid’s job to change society. Kids
      can’t consent to that.

    2. Agree. Note the city admitted that a foster child who had a history of using racist language was placed to avoid a home where his language could cause trouble. No argument with city's prudence, difficult to avoid comparisons.

    3. Best interests of the child isn't a Constitutional standard, though, it's a question of state law that can be superseded by other laws.

    4. The correct question is what is in the best interests of the child.


      And in case you didn't notice, CSS is saying that's a secondary priority, with "are the parents straight?" as the #1 priority.

      It's the city saying that "are the parents straight?" should not be a disqualifying criteria, taking precedence over the best interests of the child.

  13. If there are 30 agencies, why not simply assign the same sex couples to a different agency?

    No one is getting rejected or shamed.

    1. That's exactly the problem: CSS wouldn't be rejected or shamed.

    2. Why not simply have Black folk go to a different diner?

      Also, CSS is demanding that they be paid the same as other agencies while refusing to obey the same non-discrimination policies as other agencies.

  14. Why isn't the analogy to race simply distinguished on the basis of animus? I don't think CCS has been accused of animus here.

    Every case involving intentional racial discrimination has involved animus, whether "sincere" or not. Not so for gender/sexuality beliefs (e.g., Masterpiece - where the Court only found animus *against* the service provider).

    Hence, the court could simply establish a broad principle that both traditional AND progressive views on gender and sexuality are fully equal before the law, at least for cases where it's not motivated by animus. (How that shakes out for specific cases is another matter, but it would at least address the cycle of posturing over who's-discriminating-against-whom.)

    1. I don’t think CCS has been accused of animus here.

      The SCOTUS has made it very clear that they will punish lawyers for pointing out that religiously motivated anti-gay bigotry is bigotry.

      So, yeah, no one mentioned it. Because SCOTUS told them years ago that they have to ignore the elephant in the room if they want a fair ruling.

      But yeah, religiously-motivated animus may be, but it's still animus. Don't confuse lawyers being polite with CSS not being driven by animus.

  15. I think it is possible to contend that both Smith and Sherbert are incorrect. In other words, both Justices Scalia and Brennan got the Free Exercise Clause wrong.

    So what opinion of SCOTUS would apply, then?

    1. You would have to make up a new test. What it is, no one knows.

  16. As others have noted, this is one of the better posts by Professor Blackman in a while. I found it to provide helpful lenses on how to think about the case, the arguments made, and the various Justices' reactions.

    Having said that, the constant sniping at Gorsuch/Bostock is pretty tiresome. At a minimum, I'd expect a Con Law professor to understand that there's a difference between questions of statutory interpretation as in Bostock versus Constitutional interpretation as in Smith and Obergefell.

  17. It's funny how these legal arguments can get completely lost in the weeds. The comparison of same-sex marriage to inter-racial marriage has to be one of the most ridiculous ever.

    To analogize gender to race, let us say that men are white people and women are black people. Then, with regard to Loving and the Virginia anti-miscegenation marriage law, applying proper logic to the gender/race analogy would have the effect of actually banning opposite-sex marriage and only permitting same-sex marriage! Just as white people could only marry other white people, and black people could only marry other black people, then by that reasoning, men could only marry other men and women could only marry other women. Or conversely, by the same logic employed in the analogy, the Virginia law would have actually required only inter-racial marriage. If men could only marry women, then white people could only marry black people, etc.

    Ridiculous! Right?

    The reason why the Virginia anti-miscegenation marriage law would be unconstitutional is because race and racial classifications are entirely irrelevant to the marital relationship, thus invoking no legitimate state interest. The only relevant classifications to the marital relationship are opposite sexes, since only opposite-sex relationships are capable of procreation. So, the Virginia anti-miscegenation marriage law, insofar as procreation was assumed in the marital relationship, was, evidently, all about maintaining “racial purity”. And, in order to do that, it would have been necessary to discriminate on the basis of an irrelevant classification without no real legitimacy as far as a state interest is concerned.

    But putting aside the absurdity of the gender/race analogy, there is the legal question concerning the state interest in marriage, which should rationally center more precisely on the sexual relationships between men and women and the likely consequence of these that is procreation.

    Same-sex marriage, however, removes the presumption that the marriage partners will procreate, thus, breaking the link to procreation. It makes marriage about nothing more than two people who want to live together as a couple, while getting the state to confer to them many rights, benefits, privileges and legal conveniences for simply wanting to live together as a couple.

    And that’s it! There would be nothing more to it than that! But, there is simply no point for government to do this! One might ask: What is so special about two people wanting to live together that the state should grant them many rights, benefits, privileges and legal conveniences for simply wanting to live together as a couple? Absent procreation and family formation, there is nothing at all special about them and no state interest in such relationships.

    You know what else two people living together are called?


    Conferring marriage with of all its many rights, benefits and legal conveniences to same-sex couples, for which there is no legitimate state interest, is actually bestowing upon them a privilege, which should be unconstitutional in itself.

    Then an argument was treated about the stigma attached to homosexual relationships, and while the sentiments expressed are nice – because who wants to be stigmatized? – it doesn't seem the proper role of government to go around making people feel good about themselves. Isn't that what therapy is for? Or friends and family?

    So it was asked: Is there a compelling state interest to try to eradicate discrimination against gays and lesbians?

    But, one may as well ask whether there is a compelling state interest in getting people to “love one another as one loves oneself”. Or in getting people to be nice?

    So, really, where do we draw the line on legitimate governmental authority?

    1. [T]here is the legal question concerning the state interest in marriage, which should rationally center more precisely on the sexual relationships between men and women and the likely consequence of these that is procreation.

      Same-sex marriage, however, removes the presumption that the marriage partners will procreate, thus, breaking the link to procreation.

      Even if you could plausibly argue that was ever the presumption that drove government interest in licensing marriages†...

      Straight folks broke that presumption long before gay folk started asking for sodomy laws to be overturned, nevertheless for marriage equality. You could vaguely argue that as long as being barren was grounds for divorce, that the state had an interest in children, but no-fault divorce (and barrenness being irrelevant) predates gay rights. So does senior marriage. Heck, there's even some states that allow incestuous marriages so long as the woman is old enough, explicitly endorsing childless marriages.

      Even if you want to argue this "presumption" ever existed, straight folk are the ones that "removed" it long ago.

      That said? Adoption has always been a valid way for otherwise barren couples to get children. So since we're talking about gay couples that are trying to adopt, your "presumption" would still be irrelevant.
      †You can do this, but only if you and your listeners are ignorant of history. Government involvement in marriages has more to do with inheritance and property ownership then anything else.

      1. “Inheritance” implies inheritors, and throughout history these were the off-spring or close family members of the property owners, so procreation is necessarily and unavoidably implicated.

        If reproduction of the human species occurred by some other means without the need for the two sexes, I imagine with difficulty that an institution such as marriage would have ever arisen.

        Applying Occam's Razor, then, yes! Marriage centers around the sexual relationship between men and women, procreation, and the consequences of this. This is the simplest explanation for the origin of marriage.

        And you should notice that all of the examples you cited imply procreation, with notable attention to your invocation of incestuous marriage between old, infertile women, where it is presumed that procreation will be impossible.

        It's procreation all the way!

  18. She added, "I'm not aware of any case where this Court has said it's okay to "compel speech or coerce religious exercise as long as you can tag a disclaimer onto the end of it."

    Except that they'd already established that if the objection was to inter-racial marriage, that is precisely what would be expected.

    Of course, gay couples could decide to treat CCS like the Masterpiece Cakeshop–seek evaluations for the sole purpose of triggering test cases.

    Conspiracy theory nonsense.

    But, when I look at this case, that's not at all what happened here. It seems like Philadelphia created a clash, it seems, and was looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court even though no same-sex couple had gone to CSS

    Is Kavanaugh seriously advocating that when someone makes a city aware that one of it's contractors is violating the terms of said contract, the city should just ignore it?

    Regardless, I think if the SCOTUS sides with CSS, that the city of Philadelphia should take it's ball and go home. Divert all the funds that were previously going to third-party contractors and use them to hire some dedicated employees to do assessments. After all, there is no disagreement that the city can require it's own employees to abide by the non-discrimination ordinance, just whether or not they can expect a third-party contractor to do so.

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