Supreme Court Hears First Religious Liberty Case Since Barrett Confirmation

The swearing-in of Justice Amy Coney Barrett
November 4, 2020

The Supreme Court heard oral arguments Wednesday in a Catholic adoption agency's discrimination suit against Philadelphia, the first major religious liberty case to appear before the Court since Judge Amy Coney Barrett's confirmation.

In 2018, Philadelphia ended its contract with Catholic Social Services because the adoption agency does not place children with same-sex couples, which the city claims violates its anti-discrimination rule.

Catholic Social Services sued, arguing that the policy reflected sincere religious expression and is protected by the Constitution. The agency also pointed out that it had never been put in a position to deny service to same-sex couples, a point conservative justices latched on to during oral arguments.

"If a same-sex couple ever came to Catholic Social Services, Catholic Social Services would refer that couple to another agency that works with same-sex couples so that the couple could participate and be foster parents," Justice Brett Kavanaugh said. "No same-sex couple has ever come to Catholic Social Services for participation in this program, and therefore Catholic Social Services policy has never actually denied any same-sex couple the opportunity to be foster parents."

Lower courts have ruled in favor of the city, finding it did not violate the agency's religious-freedom rights because its rule applied to all adoption agencies. Catholic Social Services successfully appealed the case to the Supreme Court.

The agency may benefit from the Court's newly minted conservative majority. Barrett's appointment is expected to shift the Court to the right on religious liberty cases, but Philadelphia lawyers faced tough lines of questioning from Democratic appointees as well.

Justice Stephen Breyer echoed Kavanaugh's point that no same-sex couple had ever applied to the agency, nor filed a complaint against it. Justice Elena Kagan noted that the Free Exercise Clause protects the agency's right to practice its religious beliefs.

Kagan asked the city about a clause in the agency's contract allowing the city commissioner to make an exemption for the agency's religious beliefs. She said that if the exemption exists, the law is not neutrally applicable and should allow for religious exemptions.

"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, [then] there is not neutrality here," she said.

The city's defense argued that the adoption agency is performing a governmental function and should not be exempt from anti-discrimination laws.

"[Catholic Social Services] says the Constitution compels the city to give it a different contract. There is no precedent for such a thing," lawyer Neal Katyal, who argued for the city, said. "The government has broad powers to impose conditions on contractors like CSS that stand in the government's shoes performing government functions."

Lori Windham, senior counsel at the religious-liberty firm Becket Law, argued the case for the plaintiffs. She said the city has needlessly punished its oldest adoption agency and harmed prospective parents and foster children. As Philadelphia faces a shortage crisis in foster homes, "religious organizations should be free to serve the public, regardless of their beliefs," she said.

"All of the justices were interested in finding a way to allow same-sex couples to foster while also protecting religious liberty," she told reporters after oral arguments.

She said that the city government's targeting of the adoption service could mean it will go after other private religious institutions, including parochial schools.

A decision in the case, Fulton v. City of Philadelphia, Pennsylvania, is expected by the end of June 2021.