Good morning! In an hour, the Supreme Court will hear arguments in Fulton v. Philadelphia, which will decide whether the First Amendment requires Philadelphia to fund a foster care agency that refuses to work with same-sex couples.
Fulton v. Philadelphia also gives the Supreme Court’s ultraconservatives an opportunity to expand religious exemptions for people who do not want to comply with a law because of their beliefs. The court will consider overturning a landmark precedent that limited such exemptions.
(You’ll hear some reporting today that the foster care agency in Fulton refuses to “place” foster children with same-sex parents. That is incorrect. The agency only *screens* potential foster parents; the city then matches potential parents with kids from the entire foster pool.)
Fulton v. Philadelphia gives the Supreme Court an opportunity to reestablish second-class citizenship for same-sex couples and their children, denying them equal rights under the law in the name of religious liberty. It is poised to be a catastrophe. slate.com/news-and-polit…
Justice Kavanaugh didn't even pretend to question the lawyer defending the anti-gay foster care agency. He just summarized her argument then asked her if she'd like to "elaborate."
Breyer asks if discrimination on the basis of race is worse than discrimination on the basis of any other trait, including sex/sexual orientation. DOJ lawyer Hashim Mooppan says yes, it is. Alito claims Obergefell said race discrimination is worse than anti-gay discrimination.
The conservative justices are saying: A foster care agency couldn't turn away an interracial couple, but it could turn away a same-sex couple, because the state has a stronger interest in fighting racism than homophobia.
Kagan asks DOJ's Mooppan: Is eradicating discrimination against gay people a compelling state interest? She grills him on the question again and again, but he won't answer, which obviously frustrates her. (The Trump DOJ has long *supported* discrimination against gay people.)
Kavanaugh is trying to say that, because OTHER foster care agencies will work with same-sex couples, the government has a diminished interest in requiring this particular agency to work with same-sex couples. Basically, he's saying, "gay couples can just go elsewhere!"
Arguing for Philly, @neal_katyal makes the crucial point that this case is NOT about placing kids with foster parents. It's about screening and certifying potential foster parents. Philly is NOT forcing a Catholic agency to place foster kids with same-sex couples.
Alito accuses Katyal of making a "misleading" statement, then says: "If we are honest about what's really going on here, it's not about ensuring that same-sex couples in Philadelphia can be foster parents. It's that the city can't stand" the message sent by anti-gay agencies.
Alito is wrong that Katyal made a misleading statement and wrong that Philadelphia is persecuting the Catholic foster care agency. Philly continues to give the agency millions of taxpayer dollars to run different programs for foster kids. It just can't screen potential parents.
Alito did NOT get this from the record. There is simply no evidence that Philadelphia sought to persecute the Catholic social services agency. This is an alarmingly paranoid and spurious grievance to hear from a sitting justice.
https://twitter.com/JoshABlock/status/1324020188879138819
WOW: Kavanaugh claims Philadelphia "created a clash" and was "looking for a fight" when it stopped working with a foster care agency that refused to screen same-sex foster parents.
That's the ballgame. Kavanaugh has bought into the narrative that Philly persecuted Catholics.
That's the ballgame. Kavanaugh has bought into the narrative that Philly persecuted Catholics.
It's extraordinary to hear Kavanaugh peddle the false narrative that Philly went "looking for a fight" when it directed all foster care agencies to work with same-sex couples. It's simply untrue. It is supported by no evidence. Just an outrageous lie.
In her third day of arguments, Amy Coney Barrett raises a hypothetical about the government forcing every hospital to provide abortions.
https://twitter.com/stevenmazie/status/1324024316137189379
Kavanaugh keeps accusing Philadelphia of "looking for problems" by requiring all foster care agencies to screen same-sex couples. Again, this is just not true. This clash was not manufactured to punish faithful anti-gay Catholics. Kavanaugh is not framing the case truthfully.
It seems clear that the Supreme Court is going to force Philadelphia to continue funding a foster care agency that refuses to screen same-sex couples. Kavanaugh—who is now the court's median justice (!)—essentially accused Philly of persecuting the agency because it is Catholic.
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