Yesterday the Supreme Court heard oral argument in Fulton v. City of Philadelphia, the case over whether Philadelphia can exclude from its foster care program agencies like Catholic Social Services that decline to certify home studies for gay couples. Here’s the reaction of my colleague Ilya Shapiro in a statement:
In the biggest case the Supreme Court has heard since Amy Coney Barrett joined the bench, it was heartening to see the justices struggle to do right by religious believers, members of the LGBTQ community, and, perhaps most importantly here, the kids in desperate need of fostering and adoption. Unlike how many commentators have characterized the case, Fulton v. City of Philadelphia doesn’t present a direct clash between religious liberty and equality principles. As Justice Kavanaugh pointed out, no gay couple has ever been turned away by Catholic Social Services, there are 30 agencies providing screening and placement services, and CSS has no problem referring adoptive parents to those agencies. Moreover, the relevant city contract allows for exemptions from the relevant antidiscrimination provision at the sole discretion of a commissioner—so why not use that wiggle room here? This case is different both from the direct government provision of a service or license (as in Obergefell) or the thorny issues surrounding “public accommodations” (as in Masterpiece Cakeshop). There should be a way for CSS to continue to provide its valuable services, and for the rights of same‐sex couples to be observed, without either cutting away First Amendment freedoms or Fourteenth Amendment equal protection. It’s a good thing that at least a majority of the Supreme Court is likely to find that path.
I’m on pretty much the same page as Ilya policy‐wise. What makes this such a knotty case is that constitutional principle doesn’t always map well onto good policy. As I wrote in February when the Court agreed to hear Fulton:
It’s far from clear on what issues the Court will choose to resolve the case.
It might focus on whether the city of Philadelphia overstepped the Court’s Masterpiece Cakeshop guidance by showing improper animus against religion, and if so whether it matters (as the Third Circuit thought it did) that the city would have turned away a secular agency that followed the same placement policy. Or, with more dramatic implications, the Court might revisit its Employment Division v. Smith precedent, which holds that the Constitution affords no right to religious exemption from otherwise neutral and generally applicable laws.
Deciding the case on the basis of one‐off Masterpiece Cakeshop animus would allow the Court to dodge the issues for now. But the plaintiffs’ evidence on that point was found insufficient by courts below. Another off‐ramp would be to accept the plaintiffs’ theory that signing off on a home study counts as compelled speech, but that one — along with a number of the other arguments for the Fulton side — doesn’t work well if you accept the city’s description of CSS’s role as that of a city contractor standing in the city’s shoes in performing a service the city could might instead have performed directly itself.
Perhaps for that reason, conservative Justices repeatedly probed the question of whether the city’s rules might be recharacterized as a form of licensing as opposed to terms in a contracting relationship. Would it make a difference in such a classification if the government had taken over a formerly private category of services?
The Justices spent relatively little time on the looming presence of Employment Division v. Smith, which many religious liberty litigators seek to overturn. Justice Amy Coney Barrett got straight to the point, though, when she asked advocate Lori Windham, “What would you replace Smith with? Would you just want to return to Sherbert v. Verner?” In some ways Smith already seemed half‐dead, however, as the Justices debated whether the city was acting on behalf of a compelling enough government interest and had exhausted possible accommodations.
To my mind, the best policy approach in cases like these is a pluralist one in which a variety of high‐quality foster care agencies are made welcome, while the city makes sure all qualified families have agencies happy to serve them. Such a multi‐door or choice‐based system would be more easily advanced through concepts of voucherization. In particular, Prof. Robin Fretwell Wilson of Illinois has suggested voucherizing the home study phase of the process, which is the sticking point for CSS. And yet an affirmative obligation to voucherize a complicated service is probably beyond this (or any?) Court’s view of what the Constitution requires. Justice Brett Kavanaugh — who may be in a position to assemble a majority — seemed instead to have in mind a search for minimalist common ground, even if only enough of it to last one case.