The Conservative majority in the Supreme Court appeared ready on Wednesday to rule in favor of a Roman Catholic adoption agency in Philadelphia, which argued it was entitled to discriminate against potential foster parents based on their sexual orientation.
The arguments in the case known as Fulton v City of Philadelphia, Nos. 19-123, ended around noon. ET, as the votes from the previous evening’s election between President Donald Trump and former Vice President Joe Biden continued to be tabulated.
The case was Amy Coney Barrett’s first major judicial dispute, which was upheld in court late last month. Barrett’s views on LGBT rights and religion were scrutinized during their Senate confirmation process.
Trump proposed early Wednesday morning that the election results be questioned in the Supreme Court, despite the fact that the 2020 race topic was not addressed over the course of two hours of controversy. NBC News has not yet named a presidential contest winner.
The adoption agency’s case came after the City of Philadelphia learned in 2018 that Catholic Social Services, a nursing service of the Roman Catholic Church, would not certify same-sex couples as eligible parents for children in the city’s care system.
After Philadelphia learned of CSS’s policy, the city stopped referring the group of new children, citing a city law prohibiting discrimination based on sexual orientation, and updated their 2019 contract with care providers to include such discrimination more potential Parents expressly forbid.
Catholic Social Services argue that Philadelphia’s exclusion from the city’s care system is religious discrimination.
Two lower courts sided with Philadelphia, citing the 1990 Supreme Court precedent known as the Employment Division v. Smith, allowing laws affecting religion as long as they are neutral and generally applied.
Arguments included a familiar conflict between the court’s Conservatives, who now occupy six of the nine seats on the bench and have shown themselves to be respectful of religious interests, and their liberals, who tend to be better at protecting the rights of sexual minorities.
The liberal wing of the court, which includes Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, appeared to be leaning on the arguments of Neal Katyal, the Philadelphia attorney, that the case extended to virtually all government services.
“I don’t think the formulation of religion versus same-sex equality is the right one,” Katyal told the judges, saying it could be more appropriately described as “religion versus religion”.
Katyal said that allowing CSS to seek an exemption from Philadelphia’s anti-discrimination law would “go well beyond care” and allow private contractors to refuse to provide services to religious groups from “Buddhists to Baptists” if they did their citing their own religious beliefs.
Jeffrey Fisher, who represented two nonprofits advocating for Philadelphia, suggested that the rule enforced by CSS could allow police officers to refuse to enforce certain laws for religious reasons.
But the court’s Conservatives seemed to believe Philadelphia had an ulterior motive. Judge Brett Kavanaugh, who was appointed by Trump, told Katyal it seemed like Philadelphia was “looking for a fight” and “creating a clash”.
“If we’re being honest about what’s really going on here, it’s not about allowing same-sex couples in Philadelphia to be foster parents,” said Judge Samuel Alito, a judge appointed by President George W. Bush. “It is the fact that the city cannot stand the message that Catholic Social Services and the Archdiocese are sending by continuing to hold on to the old-fashioned view of marriage.”
Barrett suggested that she viewed Philadelphia as excessive.
She asked Katyal if a state could take over hospitals and force doctors to have abortions.
Katyal replied that the reason Barrett’s hypothesis sounded so bad was because a state could adopt hospitals, which he believed was inconsistent with Philadelphia’s role in the care system and posed distinct problems.
A decision in this case is expected by the end of June.
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