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.

NEXT: Thursday Open Thread

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  1. This whole things strikes me as someone signalling virtue, but I’m not sure who. As I understand it, the city contracts with agencies who vet prospective foster parents. There must be multiple such agencies. I bet some of them have their own specific moral points of view, just as CSS has its own religious point of view. For all I know, a chess club could be a foster agency, or the Sierra Club, or a Nude Gardeners club. Is the chess club open to non-chess players? Maybe so, but why would any non-chess player join a chess club, and why would non-chess playing parents sign up with a chess club as prospective foster parents?

    Surely all foster agencies have access to all children needing a foster home; the city doesn’t assign children exclusively to specific agencies. Why would a gay couple waste time trying to sign up with CSS if they know CSS doesn’t vet gay couples?

    I’d normally suspect the same as the gay couple who purposely picked the religious bakery just to get them in trouble with the government; there were plenty of bakeries who would have taken their business, and why would anyone want a cake from someone they have gone out of their way to antagonize? But this was the city cancelling the contract with CSS. Is someone in the city government trying to signal their virtue, raise their profile for a jump start to a political career?

    The whole thing seems unnecessary and politically inspired.

    1. The whole thing seems unnecessary and politically inspired.

      That which is politically inspired is, to some folk, the most necessary of all.

    2. This whole things strikes me as someone signalling virtue, but I’m not sure who.

      Please explain the difference between signalling virtue and advocating virtue. Also, is virtue bad? Is government policy permitted to favor virtue? If not, must government policy be indifferent to virtue? If there are government policies which are anti-virtue, are they especially meritorious?

      1. The difference is that virtue signaling doesn’t have virtuous consequences.

        Like, let’s say that you allow a number of groups to provide lists of potential foster parents, and then you chose from the list yourself.

        One of the groups objects to SSM, so they refer any potential foster parents involved in such to other groups.

        Where is the actual benefit to the children from refusing to look at their referrals? There is none. You’re making the final determination, and no potential applicants are being refused by the system as a whole.

        Therefore the purpose of excluding them isn’t benefit to anybody, it’s just expressing disapproval of their opinion about SSM: Virtue signaling!

        1. Thank you — very well said, and far more polite than I could have done.

        2. Where is the actual benefit to the children from refusing to look at their referrals?

          The benefit to the children is by excluding bigots from the adoption process, you ensure that all children are potentially available to be adopted to suitable same-sex couples.

          Indeed, if we put the shoe on the other foot, if a city contracted with adoption agencies that refused to place children into Christian conservative homes because of their sincere beliefs that conservative Christianity is a false and harmful religion and that such parents will damage the children, you would, I am sure, argue that such a policy is potentially harmful to children.

          1. Well, no. That’s the exact same hypo (except replacing gay with Christian conservative) and so the exact same reasoning applies.

  2. There is a threshold argument before one reaches the arguments Profesor Lederman outlines.

    Is the relationship between CSS and the City contractual, or regulatory?

    The City’s position seems to be that it set up a government program, then invited potential contractors to provide services for it, subject to rules.

    But CSS’ position is that it has been providing these services for hundreds of years, as a religious mission, long before the city ever became involved. The city muscled in on CSS’ program, taking it over, and imposing requirements as a condition of operating. For this reason, the relationship should be regarded as a regulatory relationship in which the city licenses CSS to do CSS’s work, not a contractual relationship in which the city hires CSS to do its. The key basis for distinction is that the city has made it illegal to offer foster care services outside a relationship with the city. This makes foster care services different from running (for example) a school, where the Catholic Church could simply decline to accept governmemt aid but could still legally run its school om its own dime. The Catholic Church can’t legally run foster care services on its own dime. The government rules are coercive. And that makes the relationship promarily a regularitory one.

    It seems to me one has to ask the question whose services are these, the City’s with CSS as a provider, or CSS’ with the city as a regulator, before Professor Lederman’s discussion about contractors hired by the city to perform city-oroginTed services apply.

    From the point of view of a charitable religious organization, the charitable work is its mission, its work and not the city’s. And the fact that CSS was there first and continuously operating for centuries may have some relevance.

    1. Well, this is a good post re contract or regulation, but I don’t think the mere fact that the Catholic Church has been around longer than the city is relevant. The nation, state, and city may all be younger than the church but it is they not the church that has both authority to contract and to regulate.

      There is no good argument by the church as to why it should be allowed to do it’s so called mission when it is in violation of both contractual and regulatory authority of the city re adoption by gay people. I am sure if you look hard enough they are also in violation of other elements of the nondiscrimination requirements whether those are contractual or regulatory is immaterial, otherwise you would be saying they have a right to defy and deny the city’s authority to make rules.

      Please consider, what if the KKK decided to get into the business of running adoptions to what that organization considers “proper homes” for kids without parents? Get those minds while they are young and flexible and place them into homes where lethal levels of racism is taught. I think we can all agree that the city would have the right and even duty to make sure child adoption via that organization was prohibited.

      What plausible arguments would you then make that the kKK can or should be excluded from the pool of agencies placing childern for adoption? And then on what grounds would the city have any authority at all?

      The real bottom line here is that the government has decided that if you discriminate systematically against people based on among other things sexual orientation then you simply do not qualify as an agency the city accepts for the purposes of adoptions. And the fact that an agency thus left out because it openly violates that rule and refuses to give up it’s discriminatory practices argues that that is somehow unfair, illegal, and itself discriminatory, whell it is circular logic as most religion is.

      All the church has to do in order to go on with their mission is simply drop their discriminatory practices as far as adoptions go. They may remain hate filled in their other functions and preach against homosexuals as a sin but just not when providing services to the government.

      Another example would be in healthcare. Several Christian faiths run hospital corporations. What if they simply refused to admit or treat gay paople, or people of color? How long do you think they would still be in business within the jurisdiction of any place with nondiscrimination rules?

      No “bisiness” should get an exemption based upon their alleged religion status at all. What about the duty of the city , state, or nation to protect each and every child against adoption by a biased organization? All the city is trying to do is exclude those agencies that have demonstrated and indeed brag about their discriminatory practices, and they have the absolute authority to do that. If the Church claims their version of God directs their discrimination, as laughable as that is on it’s face, then please let’s give them the opportunity to produce this god and hear his arguments as to why driscrimination as they are practicing it is a good for society.

      1. The basic problem I see here is that there is very little limit to this practice of taking parts of life that were outside the government, and thus free to be done as people liked short of actively attacking others, and pulling them inside government.

        Lederman just isn’t taking CSS’s argument seriously enough. What’s to stop the government from taking over schooling in this way? Taking over charity in this way? I suppose they’d have to stop short of taking over religious sacraments, but that’s about the only limit.

        As you expand the scope of government, you contract the scope of non-government, including religion. It’s a recipe for squeezing religion out of our lives unless it’s willing to conform it’s own doctrines to the government’s demands.

        This doesn’t look bad for people who are a-religious, or for whom government IS their religion. It looks bad for anybody who takes religious liberty seriously, or even just liberty in general.

        1. I mean, schooling is answered by Seven Sisters, so that can be easily dealt with regarding the time states did try to take over all schooling (banning private schools) and lost on grounds other than Religious Freedom.

          Of course, that case is a bit weird because it’s a Lochner case justified today on non-Lochner grounds.

      2. No “bisiness” should get an exemption based upon their alleged religion status at all.

        Government as purifier and definer of religion as a quaint lifestyle choice it can, at its whim, strip from entire major realms of life.

        What an arrogant position.

        Religion directly controlling the handles of government is bad, but that’s because large memeplex control of government is bad, not religion per se. It’s just one example.

      3. What about the duty of the city , state, or nation to protect each and every child against adoption by a biased organization?

        This is kind of a puzzling statement, for multiple reasons. First, we’re not talking about adoption at all; this is about fostering. Second, you know that it’s parents, not the organization, that would be fostering the kids, right? Third, are you advocating that parents are to be ideologically screened by the government before permitting adoption?

    2. From the point of view of a charitable religious organization, the charitable work is its mission, its work and not the city’s.

      It’s worth noting that just because these people call what they do “charitable” doesn’t mean the government has to agree with that characterization.

      I mean, if the local chapter of the KKK opened a soup kitchen for white people, I wouldn’t label that “charitable”. This is basically the same thing.

  3. Thus, from CSS’ point of view, the government here is operating primarily as a sovereign, not purely as a manager. CSS is doing this work as part of its religious mission, not as the government’s hired hand. The nature of the relationship is an essential threshold question, not just an interesting side question.

    I continue to argue that when government makes payments to a church based on conditions, the establishment clause is implicated, and the analysis should be different from a purely free exercise clause case. however, CSS is not making this argument.

    1. I think you’ve nailed it: This isn’t a government service CSS is offering to perform. It’s a CSS service the government took over.

      1. Yet that begs the question of the authority of government to take over certain functions like adoption services of it’s most vulnerable populations. In the case of parochial schools for example the government provides a secular alternative while the churches provide very conditional and discriminatory admissions to their own schools, yet the government does not refuse parents the right to give their kids an alternative education.

        This does not impact their authority to administer nondiscrimination rules they created. It is because parents have a right to make choices for their minor children that they can opt for services that discriminate like a religious school, but in the case of adoptions the state IS the surrogate parent until the children are no longer minors, or placed and adopted to new parents. Thus the government has the same parental rights to ban discrimination as you would for your kids in all matters pertaining to their care and placement.

        This is rapidly circling back to the establishment clause itself, which has been argued to death and one more circular logic argument by a religious institution is not going to add more light, only more heat to the argument.

        This is just going to devolve into yet another first amendment argument re: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” which is an INDIVIDUAL right guaranteed by the first amendment, it applies only to your and my right to practice the faith of our choice, not the institutions claiming to be religions. Or of course not to practice any religion at all.

        I say, will always say, where in the city’s rules is the Catholic Church singled out? Their rules pertain to discrimination based upon sexual orientation and not on the religious organization. If another religious adoption agency practiced the same discrimination they also would be excluded.

        The fact that defiance of nondiscrimination laws is in the DNA of Christian organizations which they refuse to give up is not a valid excuse for an exemption to the laws. As the surrogate parents to their wards, the children in question, the government does have authority to dictate the rules by which those adoption agencies can be granted access. Prospective parents be they black, white, gay, straight, of Mexican descent, Catholc, disabled in some way, all these people could simply use an approved adoption agency that does conform to the authority and rules of the city. The ban only applies to any and all agencies that practice systematic discrimination against protected classes of citizens. What about the rights of the people who would be parents for these kids that do not meet the criteria the church has set down? And the Catholic Church makes no bones about their discrimination, you could even say they are proud of that fact.

        As I point out above, if the government does not have the authority to make rules and enforce them re nondiscrimination then you argue in favor of such entities as the KKK to get into the adoptions of kids also. The city is merely acting in the best interests of the children as their legal guardians until appropriate parents are found and adoption is completed. You cannot argue they have not got that authority.

        1. As I proof the comment it occurred to me to include a counter argument, suppose a government like the state of Utah wanted to practice broad and obvious discrimination in adoptions. One way would be to simply make the Church of Later Day Saints the only authorized adoptive agency, they could then spuriously claim that yes kids are being adopted out on very biased terms but they are not the one discriminating agains prospective parents, the church is.

          The government has no choice, federal law dictates that lower divisions of government cannot allow discrimination against protected classes. So I would say in a legal sense the CSS is not even targeting the proper government to start with. The city has no authority TO ALLOW discrimination or to grant exemptions to federal laws.

          1. As I say, the problem here is that, as you bring more and more of life inside government, you pull more and more of life out of religion, (And all other non-governmental forms of organization!) and provide the government with an increasingly powerful lever to compel religions to change their doctrines to agree with the government’s doctrines.

            In the end you could see religious liberty limited to the right to pray silently inside your head, because everything but your thoughts had been brought under the ambit of government.

            People like Lederman don’t find that troubling, because they don’t take religious liberty seriously, they don’t take liberty in general seriously. They view it as little more than a right to entertain certain ideas, while everything outside your skull is potentially the domain of government.

            So, government could pull education, or charity, or health care, or child raising, or who you date or marry, or just about anything, inside itself, and treat everybody else as mere contractors it deigns to allow to perform these activities on the government’s behalf, so long as they’re done in a fashion the government approves of.

            This is a view of government which ultimately treats our lives outside government as merely territory the government hasn’t yet bothered to take over, rather than as a separate domain. Which regards the fact that government doesn’t control everything as a mere choice of government, not a fundamental aspect of freedom.

        2. “This is just going to devolve into yet another first amendment argument re: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” which is an INDIVIDUAL right guaranteed by the first amendment, it applies only to your and my right to practice the faith of our choice, not the institutions claiming to be religions. Or of course not to practice any religion at all. ”

          The free exercise of religion is an individual right, though all individual rights inherently cover the right of individuals to engage in their exercise together. Churches are protected via the rights of their congregants.

          No law respecting an establishment of religion isn’t a right at all, as such. It’s a prohibition of legislation on the whole topic; An “establishment of religion” is a state church, like the Anglican church in England. Several of the states had such at the time, and they didn’t want the federal government interfering or competing with the states in this regard, so the whole topic was placed beyond the reach of legislation. The 14th amendment extended this prohibition to the states, but by that time none of them had state churches anymore.

        3. ” but in the case of adoptions the state IS the surrogate parent until the children are no longer minors, or placed and adopted to new parents. Thus the government has the same parental rights to ban discrimination as you would for your kids in all matters pertaining to their care and placement. ”

          But, the state wasn’t originally the surrogate parent for orphans, it decided to become that.

          What’s to stop the government from assuming those parental rights in the case of education? Or diet? Child protective services already take children away from parents if they think they’re being raised badly, for potentially very flexible values of “badly”. What’s to stop them from expanding the definition of “badly” to the point where parents effectively lose all parental rights, and become effectively subcontractors for the state?

          The reasoning here fails to take seriously the right of alternate power centers to exist in a free society, it divides the world into “what the government controls” and “what the government doesn’t control yet“, with no conception of, “what the government may never control”.

          1. What’s to stop the government from assuming those parental rights in the case of education?

            The fact that the parents are still alive?

            1. That doesn’t necessarily stop the government. The government already strips living parents of their parental rights every day. They just have to change the criteria for doing so.

      2. I’ve been saying this for years.

        Church: We will care for the sick and poor and elderly and orphans.

        (2000 years later)

        Government: Hey, we can get votes braying in front of the populace to do the same thing. Since we have armed men and churches don’t, we will tell them what to do. Yes, we know this is exactly why it is bad for religion to directly control those armed men, putting down the competition, but our large group of ideas banding masses to us so we can seize power isn’t an orthodoxy, it’s a political platform because it doesn’t mention God.

        1. Church: We will care for the sick and poor and elderly and orphans.

          (2000 years later)

          Church: We will care for the sick and poor and elderly and orphans as long as they’re not gay, unwed & pregnant, looking for an abortion, the wrong religion, or anything else that we’ve decided in the intervening years we don’t like.

          Government: Yeah, maybe we should step in here.

          1. Two ways they could step in:
            1) Caring for the sick, poor, and so forth that the Church decides not to care for.
            2) Telling the Church that it must care for exactly who the government dictates, or it will not be permitted to care for anyone.

            Guess which solution people who hate religion chose every time?

            1. Given that in the US “people who hate religion” aren’t enough in number to start a bridge club, I’m not sure what you’re talking about. It’s the US, for Christ’s sake! You guys don’t realise how thoroughly drenched in religion you are in the same way that a fish doesn’t realise it’s wet. None of this establishment clause/free exercise clause is about arguments between Christians an “people who hate religion”, it’s only ever about arguments between different kinds of Christians.

              1. In the US, politicians who hate religion and will publicly admit it, are few in number. Politicians who actually DO hate religion, not so rare.

  4. If someone doesn’t like America’s definition of “marriage” then I will chip in to buy them a plane ticket and house in Afghanistan. People should be free to live amongst people that have similar values…and people that are grossed out by two men signing a marriage license should be free to move to Afghanistan and start a new life.

    1. I think it’s a bit too late for RBG, but Kennedy, Breyer, Sotomayor, and Kagan might appreciate your offer.

    2. Presumably government could ban religious marriages, at least as far as ticking the box of “state-recognized”, because most clerics won’t marry gay people, either.

      Again, religion is a quaing lifestyle choice government has the honor of stripping from anything government insinuates itself into.

      1. Ironically, my gramma, grandpa long since dead, ran down to the judge to get remarried because her new spouse couldn’t get an anullment, so the church wouldn’t marry them. I hope she isn’t in Hell.

        As an atheist, I doubt it.

  5. I think SCOTUS will consign ‘Third-Party Harm’ to the ash heap of discarded previous SCOTUS reasoning in this case. That was a takeaway from the blog post.

    Thanks to Josh R who flagged this post. It was great reading.

    1. Third-party harm would only be considered by the Court in a strict scrutiny analysis if the law wasn’t considered generally applicable. If the law is generally applicable, then under Smith the courts defer to the elected branches judgment that third parties are harmed.

  6. Hmmm… A court with six Catholics is “troubled” that the City of Philadelphia doesn’t like the Catholic church. Who saw that coming?


    1. I gotta figure out how to do that shrugging thing. 🙂

      1. Copy and paste works. ¯\_(ツ)_/¯

        1. That’s what I always do. Just google shrug emoji and copy from here:

        2. Of course! DUH!!! 🙂

          1. ¯\_(ツ)_/¯

            By Jove, you’re right. It does work!

  7. “Among all non-Caucasian children who are adopted, 73% of them are adopted into Caucasian families.”

    Ok. How often are white kids placed with non-white families?

    “Studies show that interracial / transracial adoptions can provide a stable home for children in need, with more than 75% of transracially adopted children adjusting well to their new homes.”

    What’s the rate for same-race adoptions? 25% of kids failing to adjust seems pretty high, honestly.

    I think it’s likely that it’s better to have gay parents than to live in a foster home. Is there a difference in outcome between same sex and hetero adoptive parents?

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