➤ CATHOLIC SERVICES, from p.8
religion and should be abandoned,
but she didn’t really press that
point very hard.
Hashim Mooppan, an attorney
from the US Justice Department’s
Solicitor General Offi ce, appeared
in support of CSS, refl ecting the
Trump administration’s posture
in favor of maximizing free exercise
of religion, but his arguments
added little to what Windham
had to say. Mooppan’s argument
strayed into controversial territory
when he contended the city could
forbid religious agencies from discriminating
based on race, even if
their religious beliefs opposed interracial
marriages, but could not
require them to provide services to
same-sex couples. The high court
has generally rejected the idea that
some anti-discrimination categories
addressed in law are weightier
than others, but Mooppan insisted
it has in the past placed particular
emphasis on the constitutional
treatment of race discrimination.
Neal Katyal, an acting solicitor
general in the Obama administration
and experienced Supreme
Court litigator, represented the city,
arguing that CSS was performing
a governmental function through
its contract with Philadelphia. He
contended that the case was not
about regulating private activity
or merely licensing agencies, but
rather about the city setting reasonable
terms for those who sought
to perform functions in its name.
The children referred to foster care
agencies are in the custody of the
city, the city is responsible for their
welfare, and the city has a right to
establish the terms on which it will
contract with foster care agencies,
he argued.
Along with Jeffrey Fisher, an attorney
representing Support Center
for Child Advocates and Philadelphia
Family Pride, an LGBTQ
rights organization — which intervened
to defend the city’s policy
— Katyal also emphasized that
the exemptions Windham relied in
Newly minted Supreme Court Justice Amy Coney Barrett, who has long expressed concerns about
protecting First Amendment protections for Religious Freedom, did little to tip her hand during the oral
arguments.
arguing that this was not a law of
general application were irrelevant
because they do not apply at the
screening stage of the foster care
process. The city would not grant
an exemption to allow an agency
to categorically exclude people protected
under its anti-discrimination
law. Instead, exemptions were
granted on an individual case basis
consistent with the best interest
of a specifi c child, as required
by Pennsylvania law.
Unless the court is ready to
overrule Employment Division v.
Smith, or modify it in some way,
that precedent compels the decision
reached by the trial court and
the court of appeals, Katyal and
Fisher argued.
The Supreme Court generally
tries to avoid deciding constitutional
questions unless it is absolutely
necessary to decide a case.
Here, if the court wants to avoid
the constitutional question and
still rule in CSS’ favor — as the
conservative majority may want to
do — they could use the off-ramp
REUTERS/ SAMUEL CORUM
used in the Masterpiece Cakeshop
case, avoiding the underlying issue
and fi nding that the government
decision-maker was hostile
to religion in how it handled this
particular matter. CSS pointed to
statements and letters from the
city as evincing such hostility, and
could also point to the City Council’s
reaction to the news reports
that fi rst raised the issue.
Or, the court could embrace
Windham’s characterization of the
exemption process and conclude
that the existence of exemptions
means the law is not generally applied,
and so does not fall within
the scope of the Employment Division
precedent.
Another way out was suggested
by Justice Stephen Breyer, who
asked whether CSS’ objections
could be satisfi ed by contractually
allowing it to express its religious
views as part of its evaluation of
same-sex couples and disclaim
any approval of same-sex marriages.
That approach, of course, would
certainly undermine the city’s antidiscrimination
policy. The reason
no same-sex a couple has ever applied
to CSS is undoubtedly because
they would anticipate being
rejected on religious grounds.
The newest member of the
Court, Justice Amy Coney Barrett,
was closely watched, as many assumed
this conservative Catholic
would favor CSS’ arguments. Her
questioning, however, challenged
the positions of both sides and did
not suggest any particular predisposition.
Predicting an outcome is diffi
cult, even though there is now a
solid conservative court majority of
6-3. The court would seem likely to
be eager to fi nd a way to reverse
the lower courts and give a victory
to CSS, but that does not necessarily
mean that it will overrule
Employment Division v. Smith.
Reverting to the pre-Smith precedents
would, as the late Scalia
suggested, introduce a wild card
into all government contracting,
allowing potential contractors with
religious objections to any facet of
the governing rules to claim a constitutional
right to ignore them.
It would not be surprising if the
court were unwilling to go back
down that route.
The court could well decide that
Katyal and Fisher’s argument that
this issue is about more than simply
licensing but instead foster
care agencies carrying out a government
function does not apply,
that the law was not being generally
applied, or that the government’s
compelling interest in being
sure foster parenting options are
available to same-sex couples does
not compel dropping CSS from the
program since it stated it would refer
such couples elsewhere.
A decision in the case could
come within the next few months,
but signifi cant rulings in LGBTQ
cases normally take longer to be
produced since they typically generate
dissenting opinions, drafts
of which circulate back and forth
among justices over extended periods
of time.
➤ EQNY CO-CHAIRS, from p.16
dorsement of EQNY’s model than
the transfer of leadership to two
highly respected community leaders,”
Blau said in a written statement.
EQNY board member Teri Wilhelm
also heaped praise on Marino
Thomas and Walker, describing
them as among the “fi nest advocates”
for the community.
“Given the importance of our
recent gains on the line and our
persistent efforts for full equality
far from over, we shouldn’t be
more pleased to have such inspiring
people lead Equality NY,” Wilhelm
stated in a written statement.
“It will be my personal pleasure to
work with them, to support them,
and for us all to welcome them to
the largest, progressive stage for
LBGTQI rights in the Nation.”
The organization will host a virtual
meet and greet with Walker
and Marino-Thomas on December
9 at 7 p.m.
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