By Pete Williams
A legal battle over the reach of religious freedom returns to the Supreme Court on Wednesday, requiring the justices to consider whether the Constitution allows a religious freedom exception to anti-discrimination laws.
The dispute, between the city of Philadelphia and a Catholic charity that refuses to place children in foster care with same sex-couples, is the first of this term's blockbuster cases to be heard with Justice Amy Coney Barrett on the court.
The decision is likely to have a nationwide impact. Since the Supreme Court struck down laws against gay marriage in 2015, lawsuits have sprung up around the nation brought by bakers, florists, photographers and others who say their religious beliefs will not allow them to provide services for same-sex weddings.
In the background is the court's 1990 decision that said religious groups are not exempt from general local, state and federal laws, including those banning discrimination. A decision to overturn that ruling would make it easier for businesses to claim a religious exemption from anti-discrimination laws that cover sexual orientation. But civil liberties groups say it would blunt efforts to fight discrimination.
Two years ago, the court confronted but failed to decide a similar issue in the case of a Colorado man who said baking cakes for same-sex weddings would violate his religious freedom and right of free expression, even though a state law banned discrimination based on sexual orientation.
The current case is an appeal brought by Catholic Social Services, one of about 30 agencies that contract with Philadelphia to find homes for abused and neglected children. After learning in 2018 that the charity would not consider same-sex couples as potential parents for foster children, the city insisted that all its contractors agree not to discriminate. Read more via NBC
Chase Strangio (@chasestrangio) is a Staff Attorney with the ACLU’s LGBT & AIDS Project. He live tweeted the SCOTUS hearing @chasestrangio
I will be live tweeting starting in a few minutes. Follow here. Background on Fulton below. SCOTUS arguments are livestreamed here: https://www.c-span.org/video/?471183-1/fulton-v-city-philadelphia-oral-argument
Argument is underway. CSS is claiming that applying non-discrimination law is interfering with agency's religious practice. Total distortion of what is happening.
Breyer asking what is the religious objection to just evaluating the families without taking into account whether family is same or different sex couple. CSS claiming it cannot make statements validating LGBTQ families because it would violate their religious beliefs.
Breyer again explaining that the agency doesn't even have to consider the marital status of the couple.
CSS is saying it burdens their religious beliefs to even assess the homes of LGBTQ families.
Alito of course zeroing in on the numbers of couples denied placements due to LGBTQ status. But this isn't the question. The question is whether the government *must* provide government contracts to organizations that will discriminate.
Important to note that polling shows that public broadly (and across political party) opposes religious entities discriminating against LGBTQ prospective foster and adoptive parents.
Sotomayor asking about the status of the agency as a government contractor. Noting that there is no such thing as a license in which government pays entities to take a license.
Important point about Justice Alito's question.
Sotomayor: dangerous that a contractor with a religious belief could exclude people with other religious beliefs, or people with disabilities, or inter-racial couples. Again pointing out that the certification process is different than the placement process.
Kagan goes back to Roberts's question. Hypothetical about private prisons. Contract says that no employee can use drugs of any kind but agency wants an exemption for Peyote use. Invoking Smith standard.
CSS claiming government interests different because prisons are public function but this is not. But that isn't true.
Gorsuch's question getting at whether this is just about government contracts or more broadly about City enforcement of its non-discrimination law.
Gorsuch highlighting long-term practices of Catholic agencies providing these services. Should be a warning of (a) how sympathetic this Court is to religious entities providing public functions; and (b) how powerful religious entities are in delivering critical services. Read his full follow along from twitter