Great argument in Fulton today! #SCOTUS looks poised to protect foster families and their Catholic foster care ministry. Main question is how broad the vote will be (8-1, 9-0?) and how broad the reasoning (is Smith in play?). Key takeaways: (thread)
The Justices broadly agreed that CSS has done vital work for over 200 years, and the City had no need to go after them. No same-sex couple has ever been turned away, yet city officials manufactured this dispute by shutting down CSS. 2/
Kavanaugh called the City’s position “absolutist and extreme,” noting that Philadelphia “created this clash,” even though “no same-sex couple has ever come to Catholic Social Services for participation in this program.” 3/
Breyer said what is “bothering me a lot” about the case is that “that no family has ever been turned down by this agency—indeed has never applied,” but the City still tried to shut them down. 4/
Kagan pressed Philly on the Free Exercise Clause, saying “I read Smith and Lukumi that you can’t get out of it so easily—that as long as there is an exemption, as long as it exists, as long as you could rely on it in the future, that there is not neutrality here.” 5/
Gorsuch worried that the City could “effectively take over a service that had been provided privately for some time, and take it over so much so that it regulates it pervasively and this [Free Exercise] analysis shouldn’t apply at all.” 6/
Alito saw targeting: “If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact the City can’t stand the message that CSS send[s] [with its] view about marriage.” 7/
Barrett asked a hypo the City had no good answer for: What if the City contracted with Catholic hospitals and said they had to perform abortions? 8/
Alito asked a similar question regarding religious homeless shelters. Philadelphia’s position would put all of these religious ministries at risk. 9/
The Justices asked several questions about how shutting down an excellent foster-care ministry would harm children—especially given the foster-care crisis in Philly right now. 10/
Many questions focused on the various exemptions from the City’s policy, suggesting that several Justices thought they could rule against the City even under the narrow (and much-maligned) case of Employment Div. v Smith. 11/
But there were also several questions about revisiting and replacing Smith, suggesting at least some Justices are willing to overrule Smith—either in this case or soon. 12/
Also possible is that the Justices will recognize that Smith—which applied to an “across-the-board criminal prohibition”—simply doesn’t apply to traditional religious practices that the Framers of the Free Exercise Clause never would have let a city government forbid. 13/
Bottom line: Looks like a win for Catholic foster parents—possibly a broad win by a broad margin. And the Justices clearly understood that protecting religious freedom here is not only required by the Constitution but also best for needy children. Fin/ #FreetoFoster
• • •
Missing some Tweet in this thread? You can try to
force a refresh
