Thread by @stevenmazie

Some tweets on the ongoing argument in Fulton v. Philadelphia pitting religious liberty against LGBT rights...

Justice Breyer: couldn't CSS just put aside matter of sexual orientation of potential foster parents when evaluating the suitability of the home they could provide?

Justice Alito with the softballs: how many same-sex couples have been turned away from CSS?

A: zero

(Narrator: they know they wouldn't be approved, so they haven't tried.)

Justice Sotomayor: why isn't CSS better regarded as a government contractor, not a licensee?

A: Philadelphia says CSS isn't an employee...

Sotomayor: yes but the govt can set the criteria for an agency it contracts with and pays, no?

Kagan with a hypo: what if state contracts with prison that says not employee can use drugs of any kind and a prison wants an exemption for peyote use?

(Direct reference to the issue in Employment Div v. Smith, the 1990 free-exercise decision that's under the gun in this case.)

A: the FE clause shouldn't shrink every time the government expands its reach...

Gorsuch: is CSS an employee or agent?

A: no, it's a contractor

Kavanaugh repeats point that Philadelphia contracts with about 30 agencies, so same-sex couples have other outlets/opportunities to be foster parents.

(He asks no question—not even a softball. Just makes a couple of points and asks lawyer to "elaborate".)

Justice Barrett: why should we even entertain question of whether to overrule Smith, if you're right that the city expressed hostility toward CSS?

(She seems interested in a narrower ruling, one that doesn't trash Scalia's, her old boss's, seminal decision from 1990.)

Barrett: would you want to go back to Sherbert v. Verner?

(Note that Scalia did not think Smith overruled Sherbert.)

Barrett: is this like allowing a foster agency to discriminate against inter-racial couples?

A: no, there's clearly a compelling interest in averting racial discrimination.

Justice Breyer has no effs to give this morning.

Lawyer for CSS repeats claim that racial discrimination is, effectively, worse than discrimination on the basis of sexual orientation.

Justice Alito now feeding that idea by pointing to line in Obergefell that says decent and respectable people can oppose same-sex marriage.

sorry: this is now the lawyer from the SG's office, not CSS's lawyer.

Sotomayor back to racial discrimination comparison: discrimination of any type creates a stigma against those who are excluded. Is there no compelling state interest in averting that?

A: it's a totally hypothetical harm, as no gay couples have approached CSS

Kagan: what about gender? what about an agency that refuses to employ women? is it a compelling interest in contracting with that agency?

Finer point on it: "is it a compelling interest to try to eradicate discrimination against gays and lesbians?"

A: [faltering a bit] we haven't taken a position on that

Neal Katyal, defending Philadelphia's right to revoke contract with CSS.

Justice Thomas: isn't it in best interest of child to have a home that's in best interest of the child?

Katyal: absolutely.

Katyal: city has been aware of CSS's religious beliefs for decades; the problem isn't its Catholicism but its refusal to fulfill the terms of the contract

(for which it received $26m)

Alito with strong words: what's really going on here is not that you want gay couples to be able to foster kids. It's that city "cannot stand" that CSS is holding onto "the old-fashioned view about marriage"

Katyal: no way

Katyal: city wants to maximize the number of parents in the fostering pool

Kagan: section 3.21 of the contract is problematic, as it says exceptions may be granted to sexual orientation discrimination rule - why isn't that the kind of exception that CSS wants? Lukumi and Smith should be on CSS's side on this, no?

Kavanaugh: Philadelphia seems to have created this clash, even tho 30 agencies avail for same-sex couples and no gay couple has been turned away.

"I appreciate the stigmatic harms", but we need to find a compromise, esp. given Obergefell promise to respect anti-SSM beliefs

Katyal: once you accept one accommodation, you'll need to accept them for all.

(my spin: the exceptions will swallow the rule.)

Justice Barrett with an *aBoRtIoN* hypo: can state take over all hospitals and insist that all hospitals must perform abortions?

Katyal: no way! that's different.

Roberts to Jeff Fisher: can city, if opposed to Catholicism's all male priesthood, withdraw contract for that reason?

Fisher: the stigma is about the people who can participate in the program, not a position of the church that runs the agency