Prof. Marty Lederman (Georgetown) on the Fulton Oral Argument

A long, detailed, and characteristically thoughtful post; here's the intro, though it's all worth reading:

Many of the Justices appeared to be troubled by Philadelphia's refusal to contract with Catholic Social Services (CSS) to be a Family Foster Care Agency (FCA) unless CSS agrees not to discriminate against same-sex couples when it certifies whether particular applicants are qualified to be foster parents for children in the City's custody.  As far as I could tell, however, the Justices were anything but settled about how to think about those concerns in relation to the Court's Free Exercise doctrines–indeed, they expressed deep uncertainty about just which of those doctrines is, and is not, pertinent to the case.

So I thought I'd offer a few additional thoughts here on the major themes of the oral argument.  So as not to make this post overly long, I'll assume familiarity with my post from yesterday, where I discuss some of these matters in greater detail.

Is Philadelphia's Nondiscrimination Condition Generally Applicable?

In my post yesterday, I suggested that the case might possibly turn on a rather narrow, fact-dependent question–namely, whether the City has discriminated against CSS on the basis of its religious opposition to same-sex marriage.  That's the basis of the Solicitor General's argument on behalf of CSS, and it was the focus of CSS's reply brief.  In the oral argument, Counselor to the SG Hash Mooppan repeatedly urged the Court to decide the case on this case-specific theory–in particular, on the ground that the nondiscrimination condition in Philadelphia's contract with FCAs is not "generally applicable" (at least not in practice).

On its face, that condition, found in Section 15.1 of the current standard contract, is unconditional and admits of no exceptions:

Provider shall not discriminate or permit discrimination against any individual on the basis of actual or perceived race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, source of income, familial status, genetic information; domestic or sexual violence victim status; or Human Immunodeficiency Virus ("HIV") infection status.Mooppan insisted, however, that in practice the City has recognized "a slew of" (or "myriad") exceptions to this nondiscrimination rule for conduct motivated by secular reasons and, "having exempted comparable secular conduct, [the City has] thereby devalu[ed] CSS's religious concerns," which allegedly violates the Free Exercise Clause, even within the context of performance of a government contract.  Such exceptions, argued Mooppan, prevent the condition from being "generally applicable," thus triggering heightened scrutiny, and they "undermine" what might otherwise be a compelling City interest in nondiscrimination in the family-certification process, thereby making it impossible for Philadelphia to satisfy that heightened scrutiny.  In support of this argument, Mooppan and CSS lawyer Lori Windham repeatedly cited Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993).

The problem with this argument is that there really isn't much, if any, evidence of such underinclusiveness by virtue of City-permitted exceptions.  Mooppan pointed to three things, but none of them appears to be remotely comparable to an FCA categorically refusing to certify families as eligible to care for foster children because of a protected characteristic….

There is much more, including an interesting discussion of the government-as-sovereign vs. government-as-manager question.