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Justice Barrett Leans Against LGBTQ Protections During Oral Arguments in Foster Care Case


U.S. Supreme Court Justice Amy Coney Barrett appeared to reject the idea that the government has a compelling interest in protecting the rights of LGBTQ people during oral arguments in a high-profile discrimination and religious accommodation case on Wednesday.

Stylized as Fulton v. City of Philadelphia, the case concerns whether or not the city can keep a Catholic group from participating in the city-run foster care system due to an ordinance that prohibits discrimination from being practiced by organizations who contract with the city and receive public funds.

The case has potentially far-reaching implications for hundreds of state and local governments who contract with private companies in order to provide public services. A broad ruling for Catholic Social Services (CSS) could give rise to a legal regime where such private companies refuse to provide otherwise public services to vast swathes of the population based on religious objections.

The American Civil Liberties Union (ACLU), which took part in oral arguments on Wednesday, says the case “could allow private agencies that receive taxpayer-funding to provide government services — such as foster care providers, food banks, homeless shelters, and more — to deny services to people who are LGBTQ, Jewish, Muslim, or Mormon.”

In 2018, after Catholic foster care agencies in Pennsylvania were caught discriminating against LGBTQ couples, the Philadelphia City Council passed a resolution condemning “discrimination that occurs under the guise of religious freedom.”

The city then updated their contracting practices and memorialized the change in the Fair Practices Ordinance. As a result, Philadelphia can no longer legally renew their contract with CSS–which has helped the city place adoptive children for decades–because of their policy against licensing same-sex couples to be foster parents.

The group, which is directly affiliated with the Archdiocese of Philadelphia, sued and lost in both federal district and appellate courts. CSS claims the city is attacking them for their honestly-held opposition to same-sex marriage and, in constitutional terms, have cried foul under the free exercise clause of the First Amendment.

Per CSS, the government is trying to “compel a private organization’s speech” because complying with the ordinance at issue would require the Catholic group to license same-sex couples as foster parents–should any such couples apply for the group’s services.

Philadelphia says the compelled speech angle is now moot because their original contract with CSS has long since expired. According to the City of Brotherly Love, the only question before the court is whether the anti-discrimination language is constitutional.

In their briefs, attorneys for the city noted at least one major compromise possible with the anti-LGBTQ organization: they can simply not contract with the city at all.

Philadelphia is not required to “offer [CSS] a contract that omits the same non-discrimination requirement every other” group “must follow when performing services for the city,” the respondents argue.

When questioning CSS’s attorney, Barrett repeated a line of inquiry originally started by Justice Sonia Sotomayor.

The recently-confirmed justice asked if a religious group that believes interracial marriage is an affront to God could enter into a contract with the city and refuse services to interracial couples.

In response, the Catholic group’s attorney declined to directly answer the question and said a case like that would ever make its way to the Supreme Court–while reiterating the belief that race and sexual orientation should be treated differently under the law.

Barrett, for her part, appeared receptive to that argument.

“I think we would agree that there’s not any circumstance where racial discrimination would be allowed as a religious exemption,” she said at one point while questioning the ACLU’s attorney Jeff Fisher. “Can you think of any situation where discriminating against same-sex couples would justify an exemption?”

The themes in Barrett’s questioning suggested to many legal observers that she believes the government’s interest in protecting against discrimination on the basis of sexual orientation should be decidedly less vibrant than the government’s interest in protecting against racial discrimination.

Fisher said that Barrett got the law wrong because the relevant inquiry in the case is not to evaluate whether any given group’s religious beliefs are reasonable–but whether or not the city itself has a compelling governmental interest in protecting against discrimination.

While the justice’s line of questioning clearly seemed to tip her hand on how she might rule, there was less clarity on the precedent she might rely upon to do so. CSS has argued for overturning the neutral application test for laws that incidentally impact religious groups–contained in Employment Division v. Smith–but Barrett appeared reticent to upset that landmark First Amendment opinion by former justice Antonin Scalia.

The ACLU’s Joshua Block offered an upshot:

Notably, the position attributed to the most conservative justices on the nation’s high court is the same opinion the Trump administration argued in support of the Catholic group: that racial discrimination is unacceptable but that the government does not have an overwhelming interest in protecting LGBTQ individuals—even in a case where public dollars are involved.

The DOJ explained in Aug. 2020 why it believed it had a substantial interest in this case, citing the Masterpiece Cakeshop decision:

The United States has a substantial interest in this case. As a general matter, the United States has a substantial interest in the preservation of the federal constitutional right of free exercise of religion. In addition, the federal government has prohibited discrimination on the basis of sexual orientation in certain contexts. The United States is thus well positioned to address the reconciliation of such anti-discrimination efforts with the freedom of religion protected by the First Amendment. Moreover, the United States previously presented oral argument as an amicus curiae in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) (No. 16-111). Participation by the United States could therefore materially assist this Court in its consideration of this case.

At one point during oral arguments, Solicitor General counsel Hashim Mooppan argued that the source of actual harm to same-sex couples would be to deny CSS a religious exemption to the requirements of the city’s anti-discrimination laws.

[image via Jim Lo Scalzo-Pool/Getty Images]

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