Last Week's Argument in the Philadelphia Foster-Care Case

A perplexing oral argument at SCOTUS

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Last week, the Supreme Court heard argument in Fulton v. City of Philadelphia, the latest religious-accommodation case to reach the Justices. In Fulton, a Catholic charity argues that the City of Philadelphia violated its religious freedom by forbidding it from participating in the city's foster-care program–unless the agency accepts same-sex couples as potential foster parents, which the agency declines to do from religious conviction.

As my colleague Marc DeGirolami and I explain in a new Legal Spirits podcast, last week's argument was a bit perplexing. Based on the Justices' questions, the outcome in the case seems clear: the city will lose. But, based on those same questions, it's not at all certain what analysis the Court will employ to reach that conclusion. There does not appear to be much appetite for overruling the landmark Smith decision, notwithstanding the fact that the Court granted cert on that question. More than that, though, it's hard to say.

Marc and I discuss various issues the Justices considered–whether the government can require independent contractors to waive their free-exercise rights as a cost of doing business (we're doubtful); whether the city's policy was neutral and generally applicable (we're doubtful about that, too); whether the Court will try to fashion a pragmatic, win-win solution in this and similar cases (some interest in that at oral argument); and whether Fulton will be yet another Religion Clause case in which the Court issues a narrow, even fractured ruling (always a strong possibility). Listen in!

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  1. Republicans are welcome to cling to the idea that cloaking bigotry in religion improves the bigotry, or changes it from low-grade bigotry to something else, but I do not expect that approach to survive long in modern, reasoning, decent America.

    Carry on, clingers. So far as your betters permit.

    1. RAK continues to cling to his own bigotry and prejudice and, in doing so, demonstrates that “his betters” includes pretty much everyone.

      1. The future of America will include a diminishing role for gay-bashing bigots. Better Americans will ensure it. Republicans will endure it. You guys hide behind religion but at heart you’re just multifaceted, obsolete bigots clinging to fairy tales as a fig leaf.

      2. Is it not obvious that this is a well played troll account?

        1. You figure Republican-style gay-bashing, racism, immigrant-bashing, misogyny, and other forms of traditional conservative bigotry are positioned for a comeback in modern America, Bubba? With our without a cloak of religion? Let’s hear your assessment of the point at which the tide of the American culture war reversed, and right-wingers stopped giving ground on bigotry.

          Open wider, Bubba. The American mainstream is not done shaping our national progress against your stale wishes and ugly efforts. Not nearly. The day that tide of progress stops working against you will be the day you are replaced — by a better, younger American. That’s the fate of every clinger.

          1. I’m just glad that, over the internet, nobody can splash you with spittle.

  2. Just to be clear, Catholic Social Services is compensated with taxpayer funds for doing work on behalf of the state.

    Justice Thomas asked the right question. Would the city’s position be the same if CSS were a private agency, not dependent upon government funds? Neal Katyal said that the city’s position would be different. It’s hard to believe that Thomas would ever vote in favor of the city.

    Sotomayor expressed some doubts in her questioning but I find it hard to believe that she would NOT vote in favor of the city.

    “whether the government can require independent contractors to waive their free-exercise rights as a cost of doing business (we’re doubtful); whether the city’s policy was neutral and generally applicable (we’re doubtful about that, too);”

    Those free exercise rights do not seem to exist as expressed herein. Scalia’s opinion in Smith defined those rights as “the right to believe and profess whatever religious doctrine one desires.” (Not being a lawyer, did I botch that?)

    The city’s policy is based on the city’s nondiscrimination ordinance. Defining gender identity and sexual orientation as protected classes would not seem to create doubts about neutrality or general applicability.

    Discrimination aside, CSS does a disservice to the children assigned to them. They are reducing the size of the pool of eligible foster parents which makes placement more difficult (if one believes in the sanctity of arithmetic).

    A ruling in favor of CSS could also give them to “right” not to place children with Jews and Muslims. Are some protected classes more equal than others?

    1. But no religion I am aware of forbids two dudes from signing a civil license that grants them a few privileges. I think we are going down a very troubling path in which people can’t make plans because everyone has a different definition for various civil institutions. So marriage is marriage…individuals don’t get to define marriage however they want which will inevitably lead to confusion during the normal course of business.

    2. You may wish to check some of your facts.
      CSS is not reducing pool size, 100+ other agencies available;
      CSS never received any application from LBGT applicants;
      City conceded discriminating for racial reasons in a case for the benefit of the family unit;
      City is reducing available services by excluding CSS in order to recognize the dignity of LGBT even if no LGBT parents will ever apply to CSS rather than alternate service.
      I would prefer the court remand as cert improvidently granted and ask district court to make factual determinations on whether there is a case and controversy given 100+ agencies offering services each with its own standards, absence of any LBGT discrimination complaints, and concession by both parties that welfare of child is primary objective of each party.

      1. A far more important question – is it in the best interests of the child to be placed in a home of homosexual couple?

        There natural biological repulsion to homosexual behavior. The repulsion is biological, its not based on some phantom bigotry. Using children to force the social agenda upon the child is not in the childs best interest

        1. I feel a natural biological repulsion to your comment.

    3. “They are reducing the size of the pool of eligible foster parents which makes placement more difficult (if one believes in the sanctity of arithmetic).”

      They are doing nothing of the sort, in as much as they have stated that no such foster parents have applied to them, and that if such did, they’d simply refer them to another agency.

      And it’s already been established that the agencies provide names to the city, and the city decides who the kids get placed with.

  3. Based on the Justices’ questions, the outcome in the case seems clear: the city will lose. But, based on those same questions, it’s not at all certain what analysis the Court will employ to reach that conclusion.

    Never fear. They’ll come up with something.

    1. bernard11, after reading the transcript of the argument, I think a) SCOTUS will not reverse Smith, and b) will state there is clear evidence of animus against religious belief by Philly.

      I found Justice Breyers colloquy pretty interesting.

      1. What is the standard for overruling district court findings of fact?
        Did CSS argue this point?
        Why would a Supreme Court majority write an opinion focused on fact findings to be disputed by a minority opinion finding no animus?

        1. Ruqt….Just based on my reading, I think SCOTUS sends this case back down to the District Court. There is evidence of animus in the record. To me, they are buying time, and developing the case, by sending it back down.

          1. I agree with you; Justices Breyer and Thomas were making a point: the city’s protocol had nothing to do with its admitted primary objective – the welfare of children. What if every government body decided to enact rules in order to promote “respect” for protected classes? Here, the rules disrespect the constitutionally protected class religious believers.

  4. It seems important to note that not all Christians and not all Catholics are right-wing bigots seeking government funding to advance their stale, noxious bigotry. Some are good people.

    The religious bigots are doing their best to accelerate the diminution of organized religion in our modern, reasoning, successful America. Thanks for that, clingers!

  5. Try this one on. In 2021 the IRS includes a line on all tax return forms.
    In order to qualify for a refund, you must check this box.
    [ ] I hereby confirm that I accept and recognize the legal right of LBGT couples to marry in accordance with the laws of the United States as determined by the US Supreme Court.

    That is the City’s case.

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