The fact that Donald Trump might lose the election puts a “yuuge” exclamation point on his nomination of Amy Coney Barrett to the Supreme Court; the Court heard oral arguments Wednesday in a Catholic adoption agency’s discrimination suit against Philadelphia; the first religious liberty case to be heard by the Court since ACB’s confirmation.
As reported by the Washington Free Beacon, the case involves the city of Philadelphia in 2018 ending a contract with Catholic Social Services because the adoption agency does not place children with same-sex couples, which the city claims is a violation of its anti-discrimination rule.
Catholic Social Services sued, arguing that its policy reflects sincere religious expression and is protected by the Constitution. Moreover, the agency also pointed out that it had never been put in a position to deny service to same-sex couples, a point Justice Brett Kavanaugh, also a Trump appointee, and other conservative justices noted during the 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. 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.”
Associate Justice Elana Kagan, who has earned praise from conservatives and liberals, asked the city to explain a clause in the agency’s contract which allows the city commissioner to make an exemption for Catholic Services’ religious beliefs. She said that if the exemption exists as she understands it, the law is not 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.’
Lawyer Neal Katyal argued for the city 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. 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 Catholic Social Services, told the Court that “religious organizations should be free to serve the public, regardless of their beliefs.”
“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, presumably including Amy Coney Barrett in her assessment.
Given that I’m not an attorney, much less a religious-liberties lawyer, I cannot make a legal argument against or in support of Catholic Social Services, but it does appear to me that the CSS case illustrates an attack against religion — Christianity in particular — given that the agency has never denied a same-sex couple the opportunity to become foster parents. Then why was the contract canceled?
Why not wait until CSS does deny a same-sex couple? We’ve seen this movie, before.
After the Supreme Court in June 2015 struck down state bans on same-sex marriage, legalized same-sex marriage in all fifty states, and required states to honor out-of-state same-sex marriage licenses in the case Obergefell v. Hodges, there were multiple instances of same-sex couple demanding that churches marry them. While the First Amendment protects — so far — religious institutions from such demands, the demands were nonetheless made; although I don’t remember instances of same-sex couples demanding to be married in Muslim mosques or Buddhist temples.
Similarly, we had the case of the Colorado baker who refused to bake a cake for a same-sex couple’s wedding reception, in which the Supreme Court in 2018 ruled in favor of Christian Jack Phillips, but as reported by CNN at the time, the SCOTUS decision left unsettled broader questions on religious liberty.
And in 2015, an Indiana pizza restaurant made national headlines after refusing to cater a same-sex wedding, citing Indiana’s Religious Restoration Freedoms Act, which earlier in the year had been signed into law by then-Gov. Mike Pence. Again, I’m unaware of any cases involving same-sex couples demanding Arab bakeries bake basbousa or baklava for their wedding receptions.
In any case, Associate Justice Amy Coney Barrett, along with Justice Neil Gorsuch and Brett Kavanaugh, serves as a testament to Donald Trump — win, lose, or draw, in this crazy year called 2020. Wait — if the latter were to be the case, we could end up President Nancy Pelosi, shudder the thought. Even worse, no doubt San Fran Nan would soon be taken out by virtue of the 25th Amendment and replaced by Vice President Alexandria Ocasio-Cortez.
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