The Volokh Conspiracy

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

A perplexing oral argument at SCOTUS


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!