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1. My take on oral arg in Fulton v. Philly. In biggest case SCOTUS has heard since ACB joined, it was heartening to see the justices struggle to do right by religious believers, LGBTQ community, and, perhaps most importantly, kids in desperate need of foster/adoption. #CatoSCOTUS
2. Unlike how many have characterized the case, Fulton doesn’t present direct clash bw relig liberty & equality. As Kavanaugh pointed out, no gay couple has been turned away by Catholic Social Services, 30 agencies provide screening/placement, CSS refers adoptive parents to them
3. The relevant city contract allows for exemptions from antidiscrim provision at sole discretion of a commish—so why not use that wiggle room here? This case is difft both from direct govt services (Obergefell) or “public accommodations” (Masterpiece Cakeshop).
4. There should be a way for CSS to provide its valuable services & for rights of same-sex couples to be observed, w/o either cutting away 1st Am freedoms or 14th Am equal protection. It’s a good thing that at least a majority of the Supreme Court is likely to find that path.
5. For more on the thorny policy issues raised by this case, see this written congressional testimony by my colleague @walterolson: https://www.cato.org/sites/cato.org/files/2020-03/walter-olson-public-comment-feb-26-2020.pdf.
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