Thread by @JoshABlock

Getting ready for oral arguments in Fulton v. City of Philadelphia. You can listen here.
c-span.org/video/?471183-…

What's Fulton v City of Philadelphia about? It's not about private adoption, or about the right of birth parents to have their child adopted within the faith. It's not about providing foster care group homes or other support services for kids in need.

Catholic Social Services receives millions of dollars in contracts from Philadelphia to provide a wide array of foster care services, and CSS will continue to receive those funds regardless of how this case is decided. This case is just about one specific set of contracts.

The contracts at issue in Fulton are contracts to screen potential foster families to see if they meet Pennsylvania's statutory criteria for being foster parents. PA allows couples to foster whether or not they are married, and allows single people to be foster parents too.

CSS receives gov't contracts to screen foster families, but it wants to change the terms of those contracts to impose *extra* requirements on the families it is screening on Philadelphia's behalf. CSS says it will only screen families if they are in different-sex marriages.

And that's not all: During litigation, Philadelphia discovered that CSS was also requiring foster families to provide a recommendation letter from a clergy. CSS dropped that requirement as soon as the Court found out about it. But if they win this case, they could reimpose it.

So this isn't a case like Masterpiece Cakeshop where there is a generally applicable antidiscrimination law regulating the public. This is a case where the City is trying to ensure that *its own* services are being provided on a nondiscriminatory basis to people of all faiths.

First up, is CSS's attorney. Chief Justice Roberts starts his question focusing on exactly this point. Isn't there a critical constitutional difference when the government is hiring contractors to provide services for the government itself?

Justices Breyer points out that the City isn't requiring CSS to endorse same sex couples' marriage. Being married isn't even a requirement! All City wants CSS to do is to evaluate couple to see if it meets the secular requirements of PA law.

"You don't have to say whether they are married, unmarried, same sex or different sex. You can make a note putting that to the side and say 'other than that they meet the state's requirements.' What's the problem?"
(approximate quote)

Alito says there is nothing in the record to indicate a same-sex couple has been turned away by CSS. But Alito doesn't mention there *is* evidence of a different agency turning away a same-sex couple based on religious objections. That is what prompted the City to investigate.

Alito now making the argument that other agencies are given exemptions, so the contract requirements aren't actually being applied neutrally and generally applicable.

But even Alito recognizes that CSS is confusing the processing of screening foster parents to join the pool and the very different process of matching up kids to families that have already been screened.

Sotomayor says that CSS's argument that it is really a licensee (as opposed to a contractor) makes no sense. "I've never heard of a license, where the government pays *you* to get the license."

"We have a legion of cases where people are not employees or agents, but contractors."

"I'm sorry counsel, I don't have much time but just one point. What is dangerous is that a contractor could come in and say I have a religious belief to exclude other families."

Kagan gives a hypo: How about a state contract for operating a private prison, and the contract says no employees may use drugs, but a contractor has a religious objection to not being able to use peyote?

CSS says that prisons are different because it has traditionally been a public function. But this isn't about charity. These are children who are wards of the state and been placed in the City's custody and care.

Softball questions from Gorsuch.

Kavanaugh: "I want to follow up on some of Justice Alito's questions."

Kavanaugh says CSS is just one of 29 agencies, and that CSS says that if a same-sex couple came to CSS it would refer the couple to another agency, and that no same-sex couple has come to CSS. (Actually there isn't anything in the record where CSS has promised to refer).

CSS's legal argument also does not depend on number of other agencies. The legal argument equally applies even if there is no other agencies.

Barrett says that if CSS thinks it can win under the Smith standard, then why should the court consider overruling Smith? Also asks "what would you replace Smith with"?

So far there haven't been a lot of questions suggesting the conservatives are interested in overruling Smith.

Barrett asks what would happen if an agency had a religious objection to serving couples in interracial marriages? CSS says government has a compelling interest in eradicating racial discrimination, but not discrimination against same-sex couples. Very scary response.

As recently as Masterpiece, the Court has consistently held that government has a compelling interest in eradicating discrimination bases sex and sexual orientation. CSS is asking the Court to roll back those precedent.

Next up is Solicitor General's office. They have argued that Philadelphia isn't really applying a neutral and generally applicable requirement because it has the power to make exceptions. Roberts points out that there is no evidence that the City has ever actually granted one.

Roberts again expresses skepticism that strict neutrality and general applicability makes sense in government contracting requirements.

Thomas has no questions.

Breyer asks how about a government contract to provide food on military base, and Jewish contractor wants to receive contract but refuse to provide ham.

Solicitor general again says discrimination based on race is different. Breyer is incredulous that "you want us to write an opinion that discrimination on the basis of race is different from discrimination based on gender, religion, and sexuality."

Alito: "Didn't the court say there are honorable and respectable reasons to oppose same-sex marriage."

Ugh. Protection for speech or religious beliefs isn't supposed to depend on whether those beliefs are "honorable."

Alito now suggesting that the complicated record of the case shows that Smith is a mess. Huh?

Sotomayor: I thought preventing racial discrimination is a compelling interest is not just because race discrimination is bad but because of the injury it inflicts on people discriminated against. Are you diminishing that as a compelling state interest?

So far, the argument is really showing the devastating impact of losing RBG? With her on the Court, Roberts would have been the deciding vote, and he seems very concerned about the implications for government contracting. Now Kavanaugh is probably the decisive vote.

SG's office again saying foster parents can be denied based on disability. Wrong. They can be denied if the disability prevents them from meeting the secular statutory criteria. No one argues that being gay prevents you from meeting the statutory criteria.

Kagan says that if you think that state only has a compelling interest in eradiating racial discrimination, then how about compelling state interest based on gender?

Kagan: Is it a compelling state interest to eradicate discrimination against gays and lesbians.

The US Government: Won't answer. "Perhaps."

Kagan: Is it perhaps or is it yes or is it no?

Kagan: You said the city of Philadelphia could not do the same thing based on race, and the same alleged exceptions you say undermine the state's interest here also apply to interest in race discrimination

Gorsuch: Can we circle back to the question of whether CSS should be treated as an employee or agent?

Gorsuch says government has taken over a function that used to be exclusively provided by private religious orgs. Wrong. There is no historical tradition of CSS or any other private entity being a gatekeeping of her can get approved to be a foster parent.

Kavanaugh: What if CSS were the only agency that could provide this service? Would there be a differnet analysis.

Kavanaugh seems interested in a narrower opinion focused on specific facts. So situation of Miracle Hill in South Carolina could be different.

It seems (or at least I hope) that Kavanaugh doesn't have an appetite for writing a broad opinion implying that there is no compelling interest in protecting people from discrimination based on sexual orientation.

Neal Katyal up next representing the City. Then Jeff Fisher--our co-counsel --representing the intervenor defendants with the ACLU

Roberts: If a foster child requested not to be placed with a same-sex couple, would you take that into consideration.
Katyal: That is the very different context of matching kids based on best interest. This case is about who is eligible to join pool in the first place.

Roberts: But doesn't that mean that in some contexts you are comfortable with discrimination?

No -- Matching looks to best interest of child. That doesn't discriminate against or exclude any group. It is matching particular kids with particular families.

Thomas: Would you analysis of this case different if, rather than receiving funds from City, CSS was a private organization that was purely regulated?

Katyal: Absolutely, that would be a very different case.

Breyer: What is bothering me about this case is that no family has every been turned away and this disagreement is about whether they have to sign a piece of paper about a hypothetical couple. That seems like a very narrow ground for deciding a case with enormous implications.

Katyal: This has actually come up. Bethany, another agency, turned a couple away, and that's what prompted a newspaper article and this investigation.

Katyal: To this day CSS is getting $26 million a year from this City, which is hardly something demonstrating religious hostility.

City doesn't have to wait for a particular case of discrimination from this particular entity.

Alito: "If we are honest about what's really going on here, it is not about ensuring that same sex couples in Philly have the opportunity to be foster parents. It is that the City can't stand the message that the Archidiose and CSS are sending." Wow.

Alito's statement has absolutely zero basis in the actual evidentiary record.

Sotomayor: Is there any evidence that since CSS has not been part of this program that less children have been placed overall.

Katyal: Absolutely not, and the district court found the opposite.

CSS and Alito assert that not renewing CSS's contract will reduce number of homes for kids. But the actual evidence record says the opposite.

Sotomayor: Has there ever been an exemption granted allowing an agency to discriminate based on any protected characteristic, not just sexual orientation.

Katyal: No.

Kavanaugh: I have a bigger picture thought to express and you can react as you wish?

He's been spending a lot of time with Breyer

Kavanaugh says that this case involves a conflict between two important rights and that the Court and governments should be looking where possible for "win win" answers.

Again suggests that Kavanaugh isn't on board for a broad opinion saying there isn't a compelling interest

Kavanaugh: "I completely appreciate the stigmatic harm, but we need to find a balance that also respects religious beliefs."

Katyal: I don't think the framing of this as religion v same-sex couples is the right one. This is also about religion v. religion. Baptists and Catholics can be turned away. Foster agencies and gov't services will be balkanized along religious lines.

Katyal makes the critical point: There is no historical tradition of CSS performing this particular function. There is no historical tradition of screening parents for kids in the City's own custody.

Barrett: What is government took over all hospitals and told hospital contractors that to contract with the government you had to provide abortions?
Katyal: there are many many many problems with gov't monopolizing all hospitals before you could even get to that hypo.

Jeff Fisher is up! Free exercise claims cannot turn on assessments of whether religious views are honorable or offensive.

Roberts: What if Philly doesn't like message of Church having all-male priesthood?

Fisher: There are separate ministerial exemption principles. But also that requirement wouldn't reasonable relate to the provision of foster services.

Breyer: In general, what have you thought should be the right rule? If your opponents win it is hard to see how all kinds of government programs can exist.

Fisher: The most important thing I can tell you here is that when you are dealing with the government's internal affairs a different principle appoint. Use the text from NASA v Nelson: Is it a reasonable rule for its internal operations

Alito: Do you think it is fair to say this is a simple government contracting case when this is the only way CSS can participate at all.

Fisher: That's not any different form NASA where govt contract was only way you could participate in space program.

Fisher again makes critical point that there is no historical tradition of CSS screening for kids who are in City's custody. That never happened before.

Fisher: The purported exemptions that the other side points to do not exist.

Gorsuch: One of the challenges of Smith is asking whether there is an exception, and we have to decide what's comparable enough. Why isnt matching sufficiently like screening?

Fisher: Existence of theoretical exception is not enough. You have to have the exceptions be used for actual differential treatment. Criminal law is filled with prosecutorial discretion

Kavanaugh: You agree that CSS does valuable work:
Fisher: Of course:
Kav: You agree that same-sex couple can go to other agencies?
Fisher: We don't know how many will discrim if allowed to do so.

Fisher: I don't know court wants to go down road of parsing how many agencies are available in each specific jursidiction

Fisher: Government has an eminently reasonable interest in not wanting to balkanize its services. Alternative will be for City to just to the service itself.

Barrett: Some amici are saying that religious beliefs can't cause third party harm. Where in law would such a principle come from?

Yikes.

Barrett: I think we can agree that there is no example in which racial discrimination would be permitted. Can you think of any situation where discrim against same-sex couples would justify an exemption?

Double yikes?

Closing from Fisher: I don't think there is any dispute that if City wanted to do this foster screening itself, it could. So only question is whether that changes if City does it through independent contractor. All this courts precedents say no.

So where do things stand when the dust settles? As I noted before, with RBG on the Court there would have been a very good chance of Roberts writing the opinion focusing on government contracting. Now the key vote is probably Kavanaugh.

Kavanaugh telegraphed that he wants to write a narrow opinion saying that this case is a clash between 2 very important interests and that under specific facts of this case CSS should win because there are many other agencies for same-sex couples to use.

An op along the lines Kavanaugh telegraphed would mean that the outcome would be different in places where only 1 or 2 agencies did all the foster care. Katyal and Fisher gave a great explanation for why this would be a morass for free exercise law but Kav is in driver's seat.

More broadly we are entering a very perilous time for same-sex couples, LGBT people, women, and religious minorities. Barrett, Alito, and Thomas seem firmly committed to idea that gov't has less of a compelling interest in protecting them from religious-based discrimination