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I'm up for SCOTUS oral arguments at 10am in Fulton v. City of Philadelphia, which asks whether a foster care agency has a First Amendment right to receive government contracts even if it won't comply with their nondiscrimination policy. https://www.c-span.org/video/?471183-1/fulton-v-city-philadelphia-oral-argument
This is the case that we've been warning about - it has the potential not only to blow a massive hole in nondiscrimination protections, but to twist the First Amendment from a shield into a sword used to deny other people of their rights.
It's hard to overstate how extreme the central argument is - that religious groups should have the right to administer government contracts according to their religious beliefs, even if they won't comply with their terms and won't serve all people equally.
The stakes in Bostock were absolutely high, but there was always the theoretical option of Congress clarifying the statute if LGBT people lost. The danger in Fulton is constitutionalizing an extreme right-wing position in a way that Congress would be largely powerless to fix.
Breyer is asking what religious exercise or speech this policy is compelling, and why Catholic Social Services (CSS) can't maintain its beliefs and perform the government service neutrally.
CSS says that having to go in and interview and tacitly approve same-sex couples would violate its religious beliefs, and cites the 11 state laws that permit agencies to discriminate against potential parents.
Alito is now teeing up a series of softball questions for CSS about how many kids are in need of homes, etc. Sotomayor jumps in to ask why CSS thinks of itself as a licensee rather than a contractor, and why the city's criteria doesn't function as a contract.
Sotomayor asks how this would function if religious agencies decided they wanted to discriminate based on faith, disability, race, or other criteria. CSS says there are disability criteria in some foster care, but doesn't really answer that question.
Kagan poses a hypothetical about private prisons - CSS responds the difference is that adoption has long been provided by private actors, and Kagan notes that many private philanthropies are now regulated by the state.
Gorsuch has an exchange about CSS's status as a contractors, and now Kavanaugh is asking about whether same-sex couples approach CSS, whether there are referral mechanisms, and whether same-sex couples could be served elsewhere.
(This argument drives me crazy - I would also try to avoid an agency that is likely to discriminate against me, even if I wanted to use them. That doesn't make the ability to discriminate okay.)
Barrett is now asking whether they have to reach the question of whether Employment Division v. Smith should be overruled, given that CSS says it should win regardless, and whether they'd want to return to Sherbert v. Verner if Smith is overturned.
Barrett also asks whether this would equally apply if a religious agency doesn't approve of interracial couples, and CSS claims the state has a compelling interest in stopping racial discrimination but not sexual orientation discrimination.
It's hard to stomach what a big shift that line drawing would be - Breyer pushes back on it, asking whether the Solicitor General wants SCOTUS to say the government has different interests in combatting different forms of discrimination.
Sotomayor draws attention to the burden suffered by those who are subject to the actual discrimination, and when the SG pushes back, points out that the discrimination is happening if LGBT people are being deterred from coming because they expect discrimination.
Kagan goes back to the compelling state interest argument, asking where in the scale discrimination based on gender would arise. (Which, you know, Bostock.)
Kagan asks point blank if it's a compelling state interest to try to eradicate discrimination against LGBT people, and the Solicitor General of the United States will not answer yes.
Barrett asks how we understand whether laws are generally applicable in the relevant respect - that is, to the extent there are exemptions, none are exemptions to the sexual orientation discrimination provision.
The SG seems to say the city hasn't specified that the sexual orientation discrimination provision is uniquely absolute and brokers no exceptions - I'm not sure that answers the heart of Barrett's question.
Roberts asks what would happen if a kid didn't want to be placed with a same-sex couple - the city responds that that's a question of matching and the best interest of the child, rather than approving potential parents.
As the city points out, the approval stage categorically rejects LGBT people, where the matching stage is about the best fit for a placement.
In response to Thomas's question, the city acknowledges that CSS would be differently situated if it were a private organization rather than a recipient of public funds - this is also a difference in some of the state legislative exemptions.
Thomas asks whether it's in the child's best interest to have a pool of parents who represent their best interests - the city points out that LGBT kids are overrepresented in foster care, and it's important to have LGBT parents in the mix.
Alito says LGBT people in Philly can still be foster parents, and that the city just doesn't like CSS's message - the city responds that they still give boatloads of money to CSS every year, and that you don't have to wait til discrimination happens to guard against it.
Kavanaugh says this case asks us to think about two rights - the First Amendment and the right to marry under Obergefell - and suggests governments should look for win-win answers. (I actually don't think that's true - it's about whether cities can enforce nondiscrimination law.)
The city disagrees with this framing, and points out that we need to think about the bigger stakes - a win for CSS could also facilitate religious discrimination, has serious repercussions in other areas, and hasn't been taken up lightly by the city.
Roberts asks about whether the city could disagree with an all male priesthood; the ACLU points out that that would raise different Establishment Clause concerns but also that that's not really what this case is about.
Alito is pressing Fisher on Barrett's hypothetical about a government takeover of hospitals, and Fisher is again pointing out it's hard to imagine. Sotomayor points out that the government isn't occupying the field here - Fisher agrees but says it wouldn't matter.
Both Breyer and Sotomayor have asked Fisher about what a good solution here would be, noting the difficulty of this line of jurisprudence. Fisher suggests allowing contractors to be very clear about their personal views and beliefs even as they administer programs neutrally.
Kavanaugh is stuck on maddening points - that CSS does a good job, that LGBT people haven't been turned away, etc. - Fisher points out that we don't know how many agencies will discriminate if they had permission, & SCOTUS shouldn't be tallying up options in every area of the US.
Barrett asks about the third party harm principle that religious exercise is not necessarily protected when it does harm to others - where it exists in law, and whether Fisher agrees. Fisher says it may not be categorical but the harm (and state interest) is very clear here.
Barrett says we can agree race discrimination is wrong, but can we imagine places where someone might reasonably believe discrimination against LGBT people is okay. Fisher points out we don't evaluate whether religious beliefs are reasonable - the city has a compelling interest.
I'd also point out that, to the extent this consensus around race discrimination exists, it's in part a *product* of nondiscrimination laws - historically, there have been *plenty* of odious religious justifications for race discrimination, and the law has rejected them.
Anyway, that's a wrap. The central premise of the case is extreme and I thought Katyal and Fisher were very convincing, but given the priors of various justices and some of the lines of questioning I'll still be anxious about the result.
