Analysis | A License to Discriminate Could Be Rejected by the Supreme Court. Here’s Why:

By Jon Davidson • November 10, 2020 • 10:19 am

The following is a guest post from our Chief Counsel Jon Davidson, who listened in on oral arguments in Fulton v. City of Philadelphia, the next landmark case for LGBTQ freedom. He came away thinking there was hope that a broad license to discriminate would be rejected. Here’s why: 

On November 4, the U.S. Supreme Court heard oral argument in the momentous case of Fulton v. City of Philadelphia. The case asks whether a religious child welfare agency—Catholic Social Services (CSS)—is entitled to violate the terms of a taxpayer-funded contract it voluntarily entered with the city of Philadelphia to screen prospective foster parents for the city. The contract required that CSS perform the contract without discriminating based on sexual orientation and that it therefore serve all who want to become foster parents, including same-sex couples. The agency claims it has a constitutional right not to abide by that requirement because of its religious views. While some recent press coverage assumes that a majority of the Court is leaning in favor of the agency, a closer examination of the questions and comments from Chief Justice Roberts and Justice Gorsuch at the argument suggests that may not be the case.

Questions from Chief Justice John Roberts seem to reveal he sees Fulton as a government contracting case, meaning the city of Philadelphia can manage the program as it sees fit. He began by asking the lawyer representing CSS: “Shouldn’t the City get to strike the balance as it wishes when it comes to setting conditions for participating in what is, after all, its foster program?” He followed up by asking whether her position would change knowing the city is acting in its “managerial capacity” and its rule operates “across the board.” This is a significant point: It’s important for cities to be able to set the terms of their contracts based on their understanding of their communities’ needs. Agencies that enter these contracts and acting on behalf of the government are obligated to follow the agreements’ terms.

It’s always risky to predict how the justices will rule based on their questions and comments at oral argument. A justice may just be playing devil’s advocate or exploring the responses of a particular side to a question. But these questions from Chief Justice Roberts and Justice Gorsuch indicate that the ultimate outcome is still far from clear, and we should take some solace in that.

Under currently controlling law, a claim of religious freedom will fail if the government is acting in a neutral and generally applicable way, treating secular and religious beliefs equally. Questions from Justice Neil Gorsuch suggested that he rejects the argument by CSS that the city’s contract permits exemptions to be granted to its nondiscrimination requirement and that the requirement is not neutral and generally applicable because the city refused to grant such an exemption to the agency. He asked the agency’s lawyer about the fact that the city has told the Court that its nondiscrimination ordinance, which prohibits sexual orientation discrimination in services available to the general public, “is binding of its own force and that the department can’t offer any exemptions.”

Justice Gorsuch subsequently asked the lawyer what the Court was to do with “the fact that we have a finding by the district court” that there are no exceptions to the nondiscrimination requirement in the contract. Justice Gorsuch later repeated that the city has stated that it does not permit exemptions and that the Supreme Court “normally take[s] [government] representations about their law with … some respect.” Doesn’t that mean, he asked, that “there are no exemptions here?”

Chief Justice Roberts followed up on this point when the lawyer for the United States, which is supporting the foster agency’s appeal, argued. The Chief Justice asked whether there had ever been an exemption to the contract’s nondiscrimination requirement granted to a foster care agency, and the lawyer said he wasn’t sure whether there was evidence of that. Chief Justice Roberts then noted that “The federal government, of course, has an extensive contracting regime, and it draws distinctions … on the basis of, for example, disability, minority ownership, and [other grounds].” This shows he recognizes the dangerous scope of the ruling that the agency is seeking.

Even if CSS prevails, the ruling in the case may be less sweeping than what the agency is seeking. It has asked the Supreme Court to overturn long-standing precedent that religious organizations and individuals generally cannot refuse to comply with nondiscrimination requirements that equally reject secular and religious objections to it. The justices did not seem interested in doing this.

When the lawyer for Philadelphia argued, the Chief Justice noted that, although the city sometimes takes into account characteristics of a child in foster care and a prospective foster parent in matching them, that’s “certainly” at a “different stage” than the agency’s role of screening who can be a foster parent at all. The Chief Justice asked if the two stages were comparable—and the lawyer explained why they are not. Justice Gorsuch similarly agreed this case is about the screening stage and once again referenced the city’s argument that there are no exemptions from the contract’s nondiscrimination obligation at that stage.

It’s always risky to predict how the justices will rule based on their questions and comments at oral argument. A justice may just be playing devil’s advocate or exploring the responses of a particular side to a question. But these questions from Chief Justice Roberts and Justice Gorsuch indicate that the ultimate outcome is still far from clear, and we should take some solace in that.

Freedom of religion is important to all of us; it’s enshrined in the Constitution and is one of our nation’s fundamental values. But city contractors, whether they are religious or not, should not be able to unilaterally change the terms of contracts they enter or dictate how the government should serve the public or spend taxpayer funds. A broad ruling in favor of Catholic Social Services might not stop at foster care, but could be used to challenge nondiscrimination requirements and even health and safety rules at food banks, in homeless shelters, and in other areas, simply based on the beliefs of their religion. Hopefully the Supreme Court will not go that far, and the questions and comments of Chief Justice Roberts and Justice Gorsuch means that hope still exists.

A decision will likely be issued in the spring. Regardless of how the Court rules, however, it’s important to recognize that the current patchwork of legal protections in the country—with 29 states and the federal government failing to fully protect LGBQ people from discrimination—shows exactly why we need Congress and all states to pass comprehensive LGBTQ nondiscrimination protections.

Even if CSS prevails, the ruling in the case may be less sweeping than what the agency is seeking. It has asked the Supreme Court to overturn long-standing precedent that religious organizations and individuals generally cannot refuse to comply with nondiscrimination requirements that equally reject secular and religious objections to it. The justices did not seem interested in doing this. That would mean that antidiscrimination laws and contract provisions could continue to be enforced, as long as they are equally applied to all. If the Court found that the city was not acting evenhandedly, that might result in further challenges to how nondiscrimination laws and contractual provisions are enforced, chipping away at current protections. It would not, however, create the gigantic loophole to nondiscrimination obligations that a broader ruling would create.

A decision will likely be issued in the spring. Regardless of how the Court rules, however, it’s important to recognize that the current patchwork of legal protections in the country—with 29 states and the federal government failing to fully protect LGBQ people from discrimination—shows exactly why we need Congress and all states to pass comprehensive LGBTQ nondiscrimination protections. Freedom for All Americans will continue to fight for that goal; that is the reason we were formed and our focused mission. And with recent polling showing that 83 percent of Americans support protecting LGBTQ people from discrimination, including 68 percent of Republicans, we believe we will succeed.


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