Barrett, Top Court Weigh Religion Case That May Snub Gay Couples

(Bloomberg) -- U.S. Supreme Court conservatives including new Justice Amy Coney Barrett weighed bolstering religious rights in a case that could let a Catholic charity refuse to work with same-sex couples when helping to place foster children in Philadelphia.

Hearing arguments Wednesday even as the nation tried to sort out the results of the presidential election, the court’s strengthened conservative wing questioned Philadelphia’s effort to enforce its anti-discrimination requirements in contracts with the private agencies that screen potential foster families.

The case promises an early indication of how aggressive the court will be in protecting religious freedoms -- and limiting gay rights -- now that Barrett has replaced the late Justice Ruth Bader Ginsburg and created a 6-3 conservative majority. The court is scheduled to rule by late June in the case, which centers on the constitutional guarantee of free exercise of religion.

Justices Brett Kavanaugh and Samuel Alito were upfront in their skepticism of Philadelphia’s policy. Kavanaugh said the city was “looking for a fight.”

“What I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers,” Kavanaugh told the city’s lawyer, Neal Katyal.

Katyal said the city was “torn up” about the decision to drop Catholic Social Services and acted only after another agency had turned a same-sex couple away.

“The city took that reasonable limited action and they certainly don’t need to wait for an instance of discrimination with respect to this particular entity,” Katyal said.

Gay-Rights Tension

President Donald Trump’s administration is backing the religious group in the case, argued before a court that now has three of his appointees.

Other conservatives on the court didn’t clearly indicate which way they were leaning. Chief Justice John Roberts said the Catholic group’s rights were “in tension with another set of rights, those recognized in our decision in Obergefell,” the 2015 Supreme Court decision that legalized same-sex marriage nationwide.

“Shouldn’t the city get to strike the balance as it wishes when it comes to setting conditions for participation in what is, after all, its foster program?” Roberts asked the Catholic group’s lawyer, Lori Windham.

Later, Roberts suggested that even Philadelphia might be willing to make exceptions to its anti-discrimination policy because it would consider a child’s request not to be placed with a same-sex couple.

“At least in certain contexts, you are comfortable with the concept of discriminating in this program on the basis of sexual orientation,” Roberts told Katyal.

Barrett and Justice Neil Gorsuch similarly tried to probe each side’s reasoning. Barrett asked Katyal what would happen if a state took over all its hospitals, contracted with private entities to run the facilities and then required them to perform abortions.

Liberal justices explored possible middle grounds. Justice Sonia Sotomayor asked a second lawyer defending the policy whether he could offer a “compromise.”

Another liberal, Stephen Breyer, told the city’s lawyer it was “actually bothering me quite a lot” that the dispute arose even though Catholic Social Services has never turned away a same-sex couple. “The disagreement seems to be whether they have to sign a piece of paper,” Breyer said.

Windham said Catholic Social Services “is making a modest request here, which is to step aside and be able to allow diverse religious agencies to serve the city of Philadelphia, as they have done successfully for many years.”

City Law

Philadelphia says it is trying to enforce the city’s Fair Practices Ordinance, which bars discrimination in places of public accommodation on the basis of sexual orientation and other protected characteristics. The city and its supporters say the government has broad power to set the rules when it is paying outside contractors for services.

Catholic Social Services is asking the court to overrule a 1990 decision that said the government can enforce generally applicable laws without making an exception for religious groups. The charity is also making narrower arguments, saying Philadelphia was targeting the group and doesn’t have a generally applicable law it is seeking to enforce.

Catholic Social Services has served as Philadelphia foster-care contractor for more than 50 years. Its policies came under scrutiny in 2018, when a newspaper reporter told a city official the Catholic group and another agency refused to provide the needed certification for same-sex couples.

After negotiations with city officials failed, Catholic Social Services signed a more limited contract for the 2019 fiscal year, ending its status as a so-called foster family care agency. FFCAs, as they are known, conduct home studies to determine whether potential foster families are suitable.

The dispute with the city doesn’t affect other aspects of Catholic Social Services’ Philadelphia foster-care work, including its management of two congregate-care facilities, which provide group housing for children. The group also provides social services to foster children as a so-called community umbrella agency.

Catholic Social Services says it would refer any interested same-sex couple to another foster-care agency.

The case is Fulton v. Philadelphia, 19-123.

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