The newly formed 6-3 conservative majority on the Supreme Court seemed likely Wednesday to deliver a win for religious-liberty advocates in a case on Catholic-run adoption services and LGBTQ-discrimination rules.
President Trump’s three appointments to the high court — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — coupled with Justices Clarence Thomas and Samuel A. Alito Jr. were all sympathetic to Catholic Social Services’ fight to be able to select married different-sex couples as foster parents in Philadelphia.
In the case, which was heard Wednesday, Catholic Social Services challenged the City of Philadelphia’s efforts to compel the organization to place foster children with same-sex and unmarried couples.
Philadelphia ended adoption services through the Christian organization after discovering it only worked with married different-sex couples per the Catholic Church’s teachings on sex and marriage.
Justice Kavanaugh pointed out the Catholic organization refers same-sex couples to other providers that will help them with foster and adoption services.
“It seems like Philadelphia created a clash, it seems, and was looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court even though no same-sex couple had gone to CSS, even though 30 agencies are available for same-sex couples, and even though CSS would refer any same-sex couple to one of those other agencies,” Justice Kavanaugh said.
The justices heard the oral arguments through teleconference due to the coronavirus pandemic.
A ruling in the case is expected by the end of June when the justices usually wrap up the term.
President Trump’s newest appointee to the high court, Justice Barrett, was under scrutiny in the case because she is a devout Catholic. Her Catholicism and whether it would color her rulings were at issue in her Senate confirmation for a federal appeals court seat in 2017 and then for the Supreme Court last month.
She declared that she will always separate her religious faith from the law.
During Wednesday’s arguments, she questioned whether the high court could rely on its 1990 ruling in Employment Division v. Smith, which held an individual’s religion cannot excuse that person from complying with a generally neutral law that applies to everyone.
The ruling was authored by the late Justice Antonin Scalia, for whom Justice Barrett clerked after graduating law school. Court watchers are paying close attention to whether the high court overrules — or limits — the 1990 case.
Catholic Social Services has been providing foster care for children in Philadelphia since 1917. The city began partnering with private foster care agencies in the 1950s and has been contracting with Catholic Social Services for decades.
But in 2018, after a newspaper article was published noting the organization’s policies on sex and marriage, the city threatened to terminate its contract unless the group changed its policy.
The city of Philadelphia claims taxpayer funds are used by private foster-care agencies that contract with the city, and that local law bans discrimination based on race or sexual orientation.
The high court’s Democratic-appointed justices quizzed attorneys about whether protecting LGBTQ people from discrimination was a compelling state interest, and how sexual orientation could be treated differently from race.
“What is dangerous is the idea that a contractor with a religious belief could come in and say: Exclude other religions from being families, certifying families. Exclude someone with a disability. How do we avoid that? Or exclude interracial couples?” said Justice Sonia Sotomayor, an appointee of President Obama.
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