The US Supreme Court heard oral arguments Wednesday in the case of Fulton v. City of Philadelphia. The court heard the argument by telephone with live-streamed audio.
Fulton concerns whether Petitioner, a Roman Catholic adoption agency in Philadelphia, is entitled to discriminate against potential foster parents on the basis of sexual orientation.
The city of Philadelphia has custody of about 5,000 abused and neglected children, and contracts with 30 private agencies to provide foster care in group homes and for the certification, placement, and care of children in individual private foster care homes. The city stopped referring children to Petitioner for placement after it learned that Petitioner was refusing to consider placing the children with same-sex couples. A Philadelphia provision prohibits discrimination against LGBT couples in the screening of foster parents.
Petitioner filed suit claiming the city violated their free exercise of religion and free speech.
While religious expression is a right guaranteed by the First Amendment, the city of Philadelphia stressed that this could be the exception that swallows the rule.
“It seems if you have a free exercise right to opt out of a government contract requirement because it doesn’t match your religious beliefs, [it could then apply to] any contract requirements. So, for example, here taking the child welfare context that this case arose in, if there are family reunification services that agencies provide, that would mean an agency could say, I’m not going to provide family reunification services for that child because I have a religious objection to their family of origin. And we can’t even really cabin it to the child welfare system. If there is an entitlement under the free exercise clause to dictate the terms of a government contract if you’re a faith-based organization, that would seem that there’d be no line to draw to limit that to the circumstances of this case.”
The case was the first major dispute to come before Justice Amy Coney Barrett, who was confirmed to the court late last month. Barrett’s views on LGBT rights and religion came under heavy scrutiny during her Senate confirmation process. This case follows many others concerning religious expression picked up by the court in the last few years, with some legal scholars noting a trend toward conservatives justifying discrimination based on freedom of religion.
According to NPR, seven of the court’s nine justices were raised as Catholics, including Barrett, and in the past five of them have pushed for an expansion of religious rights under the constitution’s guarantee to the free exercise of religion.
During oral arguments, Justices Alito, Thomas, Kavanaugh, and Gorsuch seemed overtly hostile to the city’s position, stressing the “good work” that the Petitioner does for needy children.
Meanwhile, Justices Breyer, Kagan, and Sotomayor stressed the city’s ban on contracting with groups that discriminate based on race, ethnicity, religion and gender. When asked if an agency wanted to discriminate based on those characteristics, Justice Barrett suggested that, in her view, race is different than all other categories.
