Transcripts For CSPAN2 Fulton V. City Of Philadelphia Oral Argument 20240711

Morning and case number 19123, fulton v. The city of philadelphia. Ms. Windham. Mr. Chief justice, and may it please the court. The courts below made a simple error. They failed to understand where Employment Division versus smith controls and what doesnt. Smith doesnt control when the government uses a system of individualized exemptions or when it makes other exceptions that undermined its rules or when it changes the rules to prohibit a religious practice. Philadelphia made all three of those errors here. The city still cant identify a neutral, generally applicable attempts. Fter six it now acknowledges its decisions are subjective and individualized. Yet the courts below still applied smith. Even set Smith Wouldve be a dead letter if petitioners prevail. That. That demonstrates the confusion and instability smith has caused. Respondents, rather than defend smith, asked the court for new limited constitutional standard thats even less protective of religious exercise. That approach has no basis in the text, history or traditions of the free exercise clause. The city has no compelling reason for excluding Catholic Social Services, which is exercised its faith by serving atrisk children in philadelphia for two centuries. Ri nor does it have any interest in refusing to allow the agency to step aside ander provide referrs efsewhere. Yet philadelphia is refusing to place children with loving mothers, like Sharonell Fulton and toni simmsbusch, just because they chose to partner with an agency who shares their faith. Responders act as it is a zerosum game, i do couples can foster, or fulton and css can. But the law and techies thickef experience say otherwise. The free exercise clause is at the heart of our Pluralistic Society and to protect petitioners vital work for the philadelphia community. I welcome the courts bastions. Ms. Windham, this is a case involving free exercise rights but they are in tension with another set of rights, those recognized in our decision in obergefell and whatever you think or however you think that tension should be resolved as a matter of government regulation, shouldnt 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 . Mr. Chief justice, i dont believe that that analysis should control here for a couple of different reasons. This courts precedents make clear that when the government is acting as sovereign using its Regulatory Authority like when its applying a citywide fair practices ordinance or the ordinancesg in lukumi, then the court does the normal free exercise clause analysis. The same thing is true when the seat is deciding at the outset whos able to persuade in a program. So you dont see any difference in terms of the analysis whether it simply a regulation, the city issuing a a rule that governs acrosstheboard as opposed to part of the rules for participating in a program. In other words, not in its sovereign capacity but in a managerial capacity or a business capacity . The city is in acting in one of those capacities here and i think a key factor is the fact that rely on the fair practices ordinance. The fact that they put that into a new context do you think there are different roles in those different context . Mr. Chiefef justice, if you d a situation which is unlike lukumi, unlike licensing, unlike Trinity Lutheran or espinoza, when the government is managing internal affairs in the government interest may be stronger but here philadelphia said css is an independent contractor and is not an employee or agent of the city. Thank you, counsel. Justice thomas. Thank you, mr. Chief justice. Counsel, following up on the chief justices question, this seems to involve both contractual relationships with the city as well as come as a chief said, regulatory or licensing. In that instance when you have both aspects of that do we analyze it as a government contract, again, referring back to the cheats point, or as a sort of a Licensure Program where the city has basically taken over and very and now it has certain requirements of the regulated industry . Justice thomas, the city is trying to regulate and airy that has a stork within area of religious practice and so i think that sets this case apart from many cases the city deciding. Its correct their using Regulatory Authority, using Sovereign Authority, using Licensing Authority to decide who gets to participate. Those are cases where this course precedents that said you do the normal constitutional analysis. Theres not some special rule. Here we n have the old contracts and a contract say were not employee or agent of the city. The same analysis should apply here as did and look to meet and espinoza and Trinity Lutheran. This is different from the case likes a a bowen where youre trying to reach out as a thirdparty and tell us to run its internal affairs. Here the city is reaching out and telling a private religious ministry which is been doing this work foric two centuries hw to run its internal affairs and trying to force it to make statements that are contrary to its religious beliefs asta a condition of continuing to participate in the religious exercise that theyve carried out in philadelphia for two centuries. Thank you. Justice breyer. Yes, thank you. On pages 45 and 46 of the cds a brief, they say that they are not requiring you to endorse samesex marriages. They say all their asking you to do is evaluate a couple without reference to whether they are samesex or not. You have read that pickett says your objection iss to being required to buys with and provie written endorsement of the samesex relationship but they are not saying to do that. Indeed, they say add something onto any response you make and say that you do not endorse samesex marriages. Say it. You see what it says. So suppose pages 45 and 46 written right into youry contract, allowing you to say whatever you want about samesex. All they want you to do is evaluate this couple irrespective of saying or different sex. What is your religiousf objectn to that . Justice breyer, i am going to point your honor to the joint appendix at 210, 211, and then 237 or that very question was asked. Ahead of Catholic Social Services testified the certifying home of a samesex couple would be in violation of that religious belief, that a host that is essentially a foundation of the relationships in the home, and that if i post that includes a written endorsement of the relevant relationships of the Foster Parent. The state law asf well asks an agency to assess the ability of applicants for approval as Foster Parents. What the the citys asking csso is to certify, validate, and make statements that it cannot make. Im not aware of any case where this court has said its okay to compel speech or coerce religious exercise as long as you can tag a disclaimer on to the end of it. Respondents have decided to any. It would be hurtful for css and for the couple, within a couple ever approached them, for them to go into the home, assess the relationships, interview them about their intimate relationship and herin family ad and the end of that had to say we cannot provide that approval for you and your family. Csss making a modest request which is to step aside and be able to allow the first religious agencies to serve the city of philadelphia, as theyve done successfully for many years. You dont have to say, according to them, whether the couple is married, whether its not married, whether its samesex, whether its different sex. You just put that to the side, make a note that youre your pt to the side and say, other than that, they are okay or they are not okay. Its all you have to do. Now whats the problem . I still dont quite see it. You said in your response at you dont want to do it, which i understand that you dont. Do but they say they are imposing a requirement that does not interfere with your they cant figure out how does it interfere. And so we write 45 and 46 writing to your contract word for word. And now tell me once again whats the problem. In your last answer you just said they cant make you say anything. I guess thats true. But we write five and 46 and say you can sayan something if you want or you dont have to if you dont want to but just take samesex, different sex, and put it to the site and say, other than that, are they qualified. What they are still being asked to do is to evaluate, assess, and approve of a couple under state law. In their own written report that something that they have testified they cannot do. This is also not an unknown or unusual religious belief. 11 states have passed laws to specifically protect religious Child Welfare provided in this context, as the u. S. Ccb brief points out that an agency closures across the country over this very issue. What were asking here thank you, counsel. Justice alito. Let me ask you a couple of questions about whats in the record of this case, about the facts of the case. The record reflects come how manyth samesex couples in philadelphia have been denied the opportunity to be Foster Parents as a result of Catholic Social Services policy . Zero. In fact, none had even approached Catholic Social Services asking for this approval and endorsement. Before the events at issue now, howor many children had ben placed, were in homes that had been evaluated by Catholic Social Services . At the time of the referral freeze, there were well over 100 children who were currently being served, and over the years there had been thousands who had been served by Catholic Social Services. How many children are awaiting placement in foster homes in philadelphia . According to the city of philadelphia, at the time when they froze intake for css, there were 250 children who were in group homes who need to be moved n,out of those homes and into family homes. This is in the best interest of the children. Its actually an obligation under state law. But commissioner figueroa, at page 35253 acknowledge that those children were still in group homes and those children were not going to be moved into homes that are supported by Catholic Social Services. One of your main arguments concerns the fact that the exemptions to the generally applicable rules under the citysn policy. Im somewhat uncertain about what that cities final position is about the availability of exemption, so what is your understanding of that . I understand that are individualized exemptions from privation 3. 21 of the contract and also to the waiver Exemption Committee, that are categorical exemptions whenever an agency conducts a home study have to consider disability, marital status and familial status. That is prohibited by the citys fair practices ordinance. The city itself deviates from the fair practices ordinance even though it is bound by it when is making placement decisions in foster care. Do they make exemptions at the initial stage only at the placement stage . Justice alito, the citys exemptions are at the placement stage but for the agencies as exemptions are happening when they are carrying out the home studies so the exact same point in the process that the city is trying to coerce Catholic Social Services. Of course the waiver and Exemption Committee could in theory give them at any stage. Thank you. Justice sotomayor. Counsel, im interested in why you see yourself as a licensee as opposed to a Government Contractor. I understand that many governments throughout the country do these home assessments and certifications internally. They hire employees within the government, they set of criteria, and they are the ones who choose to certify a family oror not. So why are you not any different than a Government Contractor . What license are you receiving . Of a licenseheard where they pay you to take the license. E Justice Sotomayor, the city is exercising a Licensing Authority because it is deciding which foster agencies are able to perform the services in the city of philadelphia. But thatsis no different thn deciding, setting forth criteria toto hire someone to do work for you. Its a lovely argument that of having a very hard time accepting how, when the city sets forth a set of criteria, only these people can do this work for me. Thats not a license. Thats and implement contract. Its an independent contractor, but its and apply the contract. And the city has been Crystal Clear that css is not its employee or agent. Pennsylvania has chosen to partner with private agencies to do this work. We have often permitted and we have a legion of cases with people who are not state actors or agents or actual employees but contractors for people who are being retained to do things for the government where we said the government could set the criteria it once. Why are you any different . What the city is trying to do here is tell religious groups who have been doing this a prior to win the city got involved we are going to exclude you, you can no longer carry out this work and leisure taketo actions that are contrary to your faith. That is something the free exercise clause prohibits. Thats a philadelphia is attempting to do here. Philadelphia and respond his position here is a dangerous one because were saying, theres saint even if not the employee or agent, the government speedy im sorry, counsel. I dont have much time for just one last point. 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. Justice sotomayor, the city actually allows agencies to exclude people with disabilities today. Thats one of the exceptions that they have from the contrac contract. Thats not exclusion. They require an agency to be specialized in that placement. If the agency gets the specialization it could become one. The agency actually cant exclude pairs on the basis of the disability from providing foster care. But what does it have to do with certifying a family . Meaning those are two different functions. The certification process is whos eligible, and they dont require someone to be married even, samesex or not. Thats different than placing theno child, which is governed y the best interest of the child. Briefly, counsel. Justice sotomayor, the state life 55 pennsylvania code 3700. 64 does take into account disability, including mental and emotional stability. Thank you, counsel. Justice kagan. Good morning, ms. Windham. I would like to take you back to the chief justices opening questions and give you a hypothetical. Suppose theres a state and it doesnt want to operate its present itselff so contracts wih private organizations to do so. In the contract theres a provision that says no employee can useov drugs of any kind. A group says, the ones to operate the prison says it wants an extension for peyote use. What would be the result in that case . Justice kagan, i think to know the result in the case first of all we would have to know where the the governments rules are neutral and generally applicable. I believe the free exercise analysis would apply. Well, i guess the question that im trying to get at is heres the government in its capacity as a contractor saying a condition thats extremely relevant to the contract in its view, and shouldnt the government have leeway to do that, to just say it doesnt matter why you want to use peyote, whether its religious or anything else. Were just going to say there should be no peyote use and no other drug use. Justice kagan, i think that the state would be likely to prevail in that case a couple of reasons. One is that, unlike you, the governments interests are going to be a lot stronger. The government there is taking something thats traditionally a publicin function in handy get t to private opposed to hear taking, been an increasingly regulating and restricting work that is traditionally been private. But there are a lot of governments do now. There are a lot of things governments do now that traditionally were done by private organizations, religious organizations. You could go through youth homes or homeless shelters. A lot of old philanthropy is now regulated and conducted by the government. Why should that matter . Justice kagan, because i think that points out the question in this case. As the free exercise clause shrink every time the government expands its reach and begins to regulate work that has historically and traditionally been done by religious groups . Would you have a different argument is a religious group that had never engaged in this okind of activity set now we wt to . With that make a difference to you . Justice kagan, i think it would make a difference. The history here is important. When you look at the government interest in the case that would be relevant. The city calls css point of light in its foster care system and it is demonstrated through the years it can do this work successfully for the children of philadelphia with no detriment toel the lgbtq population of philadelphia. Thank you, his wisdom. Justice gorsuch. What do we do with the fact that the city seems to be really present too us here and now that the fair practices ordinance is binding of its own force and that the department cant offer any exemptions . Thats a very important factor here because it were going to take the city at its word, what it needs is with stepped out of the contracting context now and we permit and the regulating context. What the city is saying to Catholic Social Services is that it is the legal for you to do this work in the city of philadelphia according to your religious exercise what the contract with the government or not. How does philadelphia, in its written documents with the Catholic Social Services, treat it . Is it an employee, an agent . The city is quite clear, at ja 634 and sa 17 the csss independent contractor and shall not begin or intend to be an employee or agent of the city. Hollowness Catholic Services engage in this activity . They have been doing it for two centuries now. And what do we do with your de facto exemption argument, given the fact that we have a finding by the District Court that there are none . The District Courts air is an error of law. The District Court said it was a generally applicable law as long as it didnt prescribe particular context only orno primarily went religiously motivated. You can see that at petition appendix 87. The District Court had the wrong idea about what counts as an exception, what counts make something not generally applicable, and it made an error of law. If we thought the were a finding ofad fact and we were stuck with it, then what would you argue . I would argue in the case if the court didth think that was a finding of fact that under the courts decision in hurley and bose and a First Amendment case the court is going to make a big review of thed. Record. Thats particularly pertinent here when we talk about the words off the contract, the wos of the city hall, the words of a state regulation. This is the work a day business of the courts to interpret and apply the law. I see my time is expected hankie. Thank you, counsel. Justice kavanaughs. Thank you, mr. Chief justice. Good morning, ms. Windham. I want to follow up on some of Justice Alitos questions and just make sure i have some of the factske down at here. First as instead ofta philadelpa contracts with about 30 private thoughts agencies to find and train and support foster families, and catholic socialie services is just one of them as i understand. Second, if a a samesex couple ever came to Catholic Social Services, Catholic Social Services would refer that couple to another agency that works with samesex couples so that the couple could participate and be Foster Parents. Third, no samesex couple has ever come to Catholic Social Services for participation in this program and, therefore, Catholic Social Services policy has never actually denied any samesex couple the opportunity to be Foster Parents in philadelphia. I just want to make sure those three facts are accurate, and you can elaborate as you see fit. Thats all correct, justice kavanaugh. That demonstrates, first, that css is not going to prevent any samesex couple from being able to foster in philadelphia. There are many other agencies out there. They are made asking to be able to step aside and recuse if that situation were ever to arise. It also demonstrates the city doesnt have a compelling interest. This is a system that is work effectively and worked well for many years. This is an unnecessary conflict. The city of philadelphia had an easy option, which is allow Catholic Social Services to continue the great work thatca its been doing. Unfortunately because of the courts below decided to apply Employment Division versus smith the city thinks its under no obligation to consider, respect and accommodate religious exercise which demonstrates how far off the rails offer exercise jurisprudence has gone in this case. Erer thank you. Justice barrett. Good morning, ms. Windham. So you just kind indicated that may be smith should have been applied and you arguing you aro breathe smith should be overruled. You also say you win even under smith because this policy is neither generally applicable ore neutral. Why should we even entertain the question of whether to offer will smith . Youre right that we can and should win this case even under smith. The question then to the court will be how it resolves legal question and what kinds it provides to the courts below. The court in cases like Trinity Lutheran and espinoza looks to traditionsistory and of the free exercise clause. Smith has caused negative results. Development since smith was decided make clear that its prediction has actually not borne out, that it is possible for theit government to accommodate and partner withrn religious organizations to do religious exercise. But would you replace smith with . We just want to return to sherbet versus werner . I believe that the courts for exercise jurisprudence gives us some guidance there in cases like the minister exception or church autonomy, the court doesnt even look at the smith lukumi line of cases in cases like lukumi and Trinity Lutheran, the court has look at the nonneutrality or targeting but in other cases i think the question should be pretty simple, is the free exercise of religion being prohibited . If so, doeson the government hae a compelling reason for doing so . Here the government does not. Last question. If we did over a smith or frankly even iff we didnt, lets take this out of the samesex marriage context and put into interracial marriage context. Justice sotomayor was indicating an example like this. What if there was an agency to believe that interracial marriage was an offense against god and, therefore, objected to certifying interracial couples as foster families . With the entitled to an extension and if so how is that distinguishable if not, how is it instinctual from csss refusal to certify children to couples and samesex marriages . No. If the case were even to get to strict scrutiny this court has been clear in loving and other cases that government has a compelling interest in eradicating Racial Discrimination. Its a far cry from i your where commissioner ali said interest is no stronger or no weaker than enforcing any of the policy. Its hard to imagine the city making that kind of concession in a case involving interracial marriage. Thank you. Ms. Windham, you have a minute to wrap up. Philadelphia will make exceptions to rituals for lots of reasons but not for the reason of csss religious exercise. Regardless of the Legal Mechanism philadelphia uses, the bottom line is that css is breaking the citys j of law ift even refer samesex couples to another agency better suited to help them. As a result philadelphia place children with Sharonell Fulton, toni simmsbusch or css and less the church changes or violates its beliefs. In our Pluralistic Society properly functioning free exercise clause is supposed to prevent this kind unnecessaryry and harmful conflict. There are children in need of loving homes waiting for the night of philadelphia nor smith should stand in the way. Thank you. Thank you, counsel. Mr. Mooppan. Mr. Chief justice, and may it please the court. Philadelphia has not afforded Catholic Social Services the tolerance ofan religious practie that is required by the free a exercise clause and vital to our pluralistic nation. The city refused to place foster children in available foster homes certified by css simply because it css were ever asked to certify a gay couple it would respectfully decline and refer them to another foster agency. The citys are tony response to csss hypothetical position discriminate against religious exercise for two reasons. Dr. Cohen response. First, the city lacks a generally applicable rule because it seeks to apply a nondiscrimination requirements to css, thereby devaluing csss religious concerns. Second, the city has not neutrally applied this rule because it is shown unto dishes back to csss sincere religious beliefs by pleading a winwin accommodation as to odious to tolerate. Counsel, you rely as does the petition on contract provision 3. 21, which bans a list of objectionable practices but then has at the end this, unless an exception is granted by the commissioner in his or her sole discretion. Has an exception of ever been granted under that provision . Im not sure that theres any evidence of that one way or the other, your honor, but i think they keep exceptions that havent granted and have been recognized in the record is that the city both requires come tolerates, and itself engages in the consideration of protected traits when certified and placing foster children. Under 55 pennsylvania code 3700. 64, the city. 64, the city requires agencies to consider both familial status and disability in certifying Foster Parents. The city has tolerated racial and ethnicbased outreach for Foster Parents. The city itself considers race and disability and placing children. Ts the federal government of course has an extensive contracting regime and that draws distinctions on the basis of, for example, disability, minority ownership, and all that. You contract rules have to be neutral and generally applicable across the board even with respect to protected status . Your honor, the federal government of course the subject to rfra, for the purpose of a state government, if the state chooses to recognize exceptions to its antidiscrimination provisions within his contractual setting, can no longer claim to be acting in a a generally applicable and neutral way. To counsel. Justice thomas. I have no questions, mr. Chief justice. Justice breyer. Yes. Did you sorry, the machine didnt work. Can you hear me . Yes. Yes, your honor. Very well. I would like to follow up on two questions that have been asked, the questions that interracial marriage. Everything is the same except its interracial. The response so far from your site has been, well, thats a compelling interest. This is in. Think of other examples. The government wants to contract to a food distributor to supply food on all the military bases, because they are Orthodox Jews they want nothing to do with ham and dont want to let anybody else they want nothing to do with it. Or consider a religion which says we are bidding on this contract for local transportation and we want men and women to sit separately, or what women to wear headscarves. Now, in a contracting basis is it your opinion that the government just has to do that, has to get into the religious belief, or not . I think the question under our submission is whether the government is acting in a generally applicable and neutral way. If the government has a a blant and that his commission provision that would be one thing. If as in this case the government is forced to have an antidiscrimination provision but then itself recognizes myriad exceptions, it is generally going to have undermined its compelling interest and its going to have to explain why it can tolerate deviations from that at that its commission provision in whole host of areas but it cannot tolerate a deviation for our religious accommodation. We can get other people to supply the ham, they say. So thats all right. We cant do anything about this, the headscarves, you can do about the interracial marriage. So your idea, how does that work out . I would differentiate the interracial marriage from the rest of them, your honor. On interracial marriage this court has made clear repeatedly that theres a particularly compelling interest in eradicating Racial Discrimination. So you want to start im sorry. What interrupt you right here because now two of you have said this, that we should write an opinion which has discrimination on basis of race, constitutionally speaking, is different than discrimination on the basis of gender, on the basis of religion, on the basis of nationality, on the basis of homosexuality or is at the opinion you want us to write . Briefly, counsel. I think this court in penarodriquez aubrey said something very similar about how race is unique in this countries constitutional history and eradicating that type of Racial Discrimination presents a particularly unique and compelling interest. Justice alito. Didnt the court in obergefell say exactly that . Didnt the court say that the honorable and respectable reason for continuing to oppose samesex marriage . With the court say the same thing about interracial marriage . Certainly, your honor, obergefell does say that. Loving, of course, didnt say that and never would have said that. Masterpiece cake, in addition, also recognize similarly that there are contexts and circumstances in which gay couples can recognize and accept that there are longstanding, deepseated, sinceret religious beliefs that oppose samesex marriage, and in a pluralistic nation that respects religious tolerance, accommodating those religious practices does not undermine the compelling interest in the same sorry, that religious practice is consistent with the free exercise clause in a way that, if you are dealing with interracial marriage, it would not, given the Significant Interest in that context. We dont reach constitutional questions as a general matter unless we have to. Thats a strong policy. But what do the arguments in this case about, the complicated arguments about exemptions and the new arguments about contracting, the question whether Catholic Social Services is more like a regular licensee or more like a contractor, say about the stability of the Employment Division v. Smith precedent . The government as you know we havent taken a position on smith. We do think this is all relatively straightforward case under smith that the city acted in a generally applicable and neutral way. We think the record makes clear that the city has recognized myriad exceptions from its antidiscrimination provision and that the courts below erred just because the made a legal error in not treating those as exemptions because they looked too narrowly at whether, if an entity had engaged in the same practice for a nonreligious reason, with the city have been treated them carefully. Thats just contrary to look to me. In the is a been a nonreligious actor who had engaged in a ritual sacrifice of an animal in lukumi. Thank you, counsel. Justice sotomayor. Counsel, i have always thought that a compelling state interest that motivated our holdings in Racial Discrimination cases was not merely that race was important but that the burden on the people who are rejected because of race as an interest that the state could seek to protect, that a rejection on the basis of race or any protected category creates a stigma on that person and that its a compelling state interest for the state to have an antidiscrimination law on the basis of protected classes. Are you diminishing that as a compelling state interest . No, your honor. I think that consideration of that just cuts in the opposite direction here for two reasons. The first reason is no gay couple is being denied the ability to serve as as a Foster Parent in this situation, first, as a factual matter may i interrupt you there. They are by this agency. Css is saying to them, i wont certify you. It is an independent contractor with the city. The city has said to that couple, we wont discriminate against you, but css, are independent contractor, doesnt what to serve you, doesnt want to certify you, not on the basis of any of the criteria that the state has set forth. Youve might meet every criteria the state sets forth but they are imposing an additional criteria. So to point about that. The first is, as a factual matter, no gay couple has ever actually tried to use css. I think that reflects the point that i suspect part of that is just natural, meaning people gravitate to agencies that are community. Eir this is one of the arguments that was resolved against the petitioner. Its not that the agency at the city has agencies who cater only toe. One community. Its that some agencies live in community, and so more people will come to it from that community. Your honor, respectfully, i think it might more reflect the point that Justice Alito made earlier, that gay couples can recognize and accept that the Catholic Social Services and the Catholic Church havely deepseated, sincere religious objection to gay marriage and thus they dont seek out css to serve as their foster agency. But onon the flip side i think its important to emphasize the cds of rules do consider disability whent certifying Foster Parents. Pasta parents can be denied the ability to serve as fossa pairs goes of their disability. So again the city is allowing that sort of dignitary harm that your honor pointed to enter saying sometimes that dignitary harm isnt enough but they are not willing to allow that to happen in this context where its a totally hypothetical harm and were by enforcing that hypothetical harm they are actually harming the children they purport to serve. Thank you, counsel. Justice kagan. Good morning, mr. Mooppan. If i i understood you correctly you said that it is a compelling state interest to eradicate Racial Discrimination but it is not a compelling state interest to eradicate discrimination on the basis of Sexual Orientation. I was wondering where in this scale that you are using with discrimination on the basis of gender, peer would that be a compelling state interest . For example, if there is an agency that refuses to employ women, with the state have to contract with that agency . Your honor, just to be clear, my point was that the government, philadelphia in this case has undermined its compelling interest, any compelling interest that it mit have in eradicating Sexual Orientation discrimination because it has recognized a slew of exceptions. What i was suggesting is with respect to Racial Discrimination, given the do you think it is a compelling state interest to want to eradicate discrimination against gays and lesbians . Im sorry, your honor, i didnt hear the beginning of your question. You think theres a compelling state interest to try to eradicate discrimination against gays and lesbians . Were not the 90 some advocates of the in the abstract. Is it a compelling state interest, mr. Mooppan . In the abstract perhaps, but on the facts of this case the government has undermined i didnt ask is it perhaps yes or is it no . We have taken a a position n that question because the question in this case is whether the city of a philadelphia has compelling interest. The city does that because they have undermined that interest by recognizing a series of exceptions. Having recognized all those exceptions, it no longer has compelling interest in insisting that the one situation where i cannot abide by any discrimination is Sexual Orientation, even though it tolerates Racial Discrimination, it tolerates disabilities excuse me, mr. Mooppan. You said the city could not do the same thing with respect to race. The same suppose exceptions are there, too, ready to undermined it but you said that would come out differently. Im seeking to find out a o rean why. The reason why is because Racial Discrimination is particularly unique and compelling, as this court has held in thats why its super compelling. Set the idea . Thats right. As this court said it penarodriquez, where it recognized an exception to the jury impeachment rule for yes. I mean race is sui generis in our society in all kinds of ways, but a compelling state interest juju jesuit allows the to act. Right, and the question is whether the government has underminedme that interest i recognize exceptions. What im submitting is that the exceptions the government has recognized here dont underminee its compelling interest with respect to Racial Discrimination because most of exceptions dont involve race and the only ones that do involve race involving in individualize incineration of race. Thank you, counsel. Justice gorsuch. Can we circle back to the question whether Catholic Service Catholic Social Services should be treated as an employee or agent and whether the city can effectively take over a service that had been provided privately for some time, and taken over so much so that it regulates it pervasively and this analysis should s not apply at all. Can you address that concern . In this case its true that the government in some contexts its greater latitude when its acting in a contracting capacity, what it doesnt get is the ability to discriminate against its contractors on the basis of their religion or religiouss exercise. To take Justice Kagans hypothetical from earlier, if you have your present with prison contractors and it allows Prison Guards to bring in peyote, it cant interna rabbits it will allow Prison Guards to bring in alaska. The argument here is similar that the city of philadelphia is allowing all sorts of other exemptions ayahuasca. Put aside the exemptions argument. Would otherwise be identical to a City Employee or agent in the governments view . Know because of the other aspect of this case that we address and a breeze, the Masterpiece Cakeshop type arguments about the statements made by commissioner figueroa and by the city council. But im asking you to put that kind of stuff aside. Otherwise would be similarly situated to an employee or agent in your give . If you take both the exemptions and the statements out of the case, the government hasnt taken a position about how i case like that should be addressed. All right. Our submission is focus on both the exemptions and the statements. Lets deal with the exemptions. What do we do with the fair practices ordinance and the argument by the city when we normally take the representations about their law that the fair practices ordinance applies by its own force and that there are no exemptions . Points. E make two ns anynguage of the spl ba differentiation or preference in the treatment of a person on the basis of any respective traits. The city can see that it considers race and disability when placing thats at ja309. Thank you. I appreciate it. My time has expired. Thank you. Justice kavanaugh. Good morning, mr. Mooppan. What if Catholic Social Services were the only private agency in philadelphia that performed this service, meaning that samesex couples in philadelphia simply could not become Foster Parents and lets also assume there are no exceptions or other statements relative to the analysis. In that circumstance would there be any different analysis or result in a case like this . Yeah, i think that it would be a significantly harder case because the city at that point would have an interest that isnt presented here, namely the interest in ensuring that gay couples in philadelphia would have the opportunity to serve as Foster Parents, but of course, that isnt the facts that we have here. The facts we have in this case is that there are dozens of foster agencies that are available to serve gay couples in the city of philadelphia and theres no evidence that any gay couples ever even tried to use css as its agency. So, on the one hand, what philadelphia is doing here doesnt even help gay couples and what it is doing instead is harming the very children its trying to serve. Thank you. Justin barrett . Good morning. So im wondering how we decide whether laws in the relevant respect. Justice barrett. You said that the city recognizes a slew of cases about you none are for the requirements. Its not the same as sunday sabbath observance to saturdays sabbath observance, thats more apple to apple. And how do we decide whether the law is applicable . Your honor, in this case, the city is looking at hits practice ordinance, and preference in the treatment of a person on the basis of a string of protected traits and they recognize exemptions for a variety of those traits. Now, its true that theres an example of them recognizing an exemption for Sexual Orientation, unless they can say that for some reason Sexual Orientation discrimination is the one type of discrimination they can abide no exemptions whatsoev whatsoever, even more so than race or disability. It reveals that those are comparable traits and theyre recognizing exemptions for the best interest of the child. Here where the children would be better recognizing an exemption for css that would allow css to continue to provide this work, the city refuses to do so, thats a lack of religious tolerance and lack of with the fraternal of order of mr. Is the third circuit. What if they said there would be no exemptions permitted with regard to samesex marriage antidiscrimination requirement period and another section which permitted some exemptions as the city employs here, considering race, for example, in the placement of a child. Would that be generally applicable, the samesex requirement, i mean . I think we would still say in that case in the absence of any argument why Sexual Orientation is the one form of discrimination that cant define any exceptions more so than race, that the city was making a value judgment. In the same way that the city allowed for certain reasons and not other reasons. You can imagine parsing out the statute in a different way and gerrymandering the statute so that applied and has no exemptions and other subprovisions than have all the exemptions. Ultimately, its a question whether the governor is devaluing religious interest visavis secular interests and thats whats happening here because the government is recognizing for the children. Thank you. Mr. Mooppan would you like to wrap up for a minute . I think here, your honor, at theened. Day, what the city has done is worse than cutting off its nose to spite its face. Its cutting off homes from the most Vulnerable Children in the city despite the Catholic Church. The government itself requires, tolerates and engages in itself various discrimination for the protection of children and then turns around and refuses to abide by any form of discrimination with regards to Sexual Orientation in order to deny accommodation to the Catholic Church and the statements made by versus officials made clear the reason theyre doing that, they view this as some sort of odious anachronism rather than as this court recognized a decent and honorable view that people can recognize and accept in a country thats committed to religious tolerance. Thank you, counsel. Thank you, mr. Chief justice, may it please the court. This case is not about private activities or beliefs. When they sign a contract, its expected to approve foster families under section 3700 upped the pennsylvania code, a universal clause in every contract or through Sexual Orientation or discrimination, that clause contains no exemptions and applies equal toy to every fca, religious and secular alike. Css compelled the city to give it a din contract. Theres no precedent for such a thing. This is as the chief justice said the citys own program and its own worth as a state. The government has broad powers to have conditions on contractors like css that stand in the government shoes performing government functions. Ms. Wyndham admitted that the government has more leeway as a contractor she says says that css isnt one. Thats all it narrows down to and the contract is clear that they are. Ruling otherwise would throw the courts into contracting decision ins all 50 states and imperil governments in many. And that means they could discriminate against lgbt kids and Justice Sotomayor asked that question and i didnt hear from the other side. And requiring a clergy letter that Foster Parents were a member of the congregation. And discrimination against catholics and jew in south carolina. Compelling government to permit all of these practices, ending their openness to all ap finally css says it was targeted for its beliefs, but the District Court found after three days of live testimony that never happened and the 3rd circuit agreed and nothing my friends have said comes close to the obvious and showing of error that the two court rule requires to reverse that. Counsel, if a foster child requested not to be placed with a samesex couple, would you take that into consideration in placing the child . Thats a very different stage. Thats at a matching stage and we certainly, i think, its come across the idea of Foster Parents and we said they cant request a particular race, im not sure if weve had the question of the child itself, but i would say thats a very different thing ago Justice Alito said. That child matching stage. At that stage youre looking to the best interest. This case is about the pool stage and who is eligible to be a Foster Parent i suppose there are different contexts, but the question is, at least in certain contexts, you are comfortable with the concept of discriminating in this program on the basis of Sexual Orientation but you have a very strict rule, youve said there will be no exemptions to csss similar taking into account of the Sexual Orientation status of the wouldbe parent, Foster Parents . No, mr. Chief justice, its the same rule at both stages. So at the pool stage, theres no there is a he a categorical bar against any discrimination. Its up to the parent to work wi with and with the child, thats the federal standard in all 50 states, that doesnt categorically exclude anyone it looks at all potential consideration. What my friend on the other side is taking the very the race mandated by state law and i asked the city when have you taken race into account one instant and thats when the kid used racial slurs and thats when they thank you, counsel. Justice thomasments thank you, mr. Katyal youve placed in your briefs and argument today a lot of reliance on the fact that your point that css is a contractor. With your analysis of this case differ if rather than receiving funds from the city or contracting with the city, css was a private organization that was regulated, solely regulated as opposed to the contractual relationship . Absolutely, Justice Thomas. That would be a very different case. Because this is a contracting circumstance, the government has far more leeway what is actually similar when you heard those things about race and disability ap the like. Says that the courts must give difference to the governments reasonable assessment of interests as contractor. So when you look at what is similar and what is different, i think its important to understand that its not similar in the sense that the government is that i go that those the distinctions made on the best interest of the child are made when the point is different. Its about matching kids, not growing the pool of safe Foster Parents and its not discrimination. The government is saying at that point its done to protect the welfare of an individual child and is nothing like the across the board flat refusal that they want to hear. So if a catholic teen wanted to be with a catholic family at the child matching stage. That can be taken into account. Lots of things can be taken into account. Here were talking the first stage as Justice Alito id like to get one question in before my time expires. Dont you think its in the best interest of the child to also have a pool that is that is beneficial to the child . I dont understand why that isnt also in the best interest of the child . Oh, absolutely, your honor. We 100 agree. The citys point is when you enable the nfca to discrimination on the basis of orientation, that will stigmatize the kids. And lgbt kids in the population and undermine the ability of the program to operate. Absolutely, Justice Thomas, we 100 the best interest of the child looks to what is the best place for that particular child. Thank you. Justice breyer. Its actually bothering me a lot about this case, i think that no family has ever been turned down by this agency, indeed, none have ever applied, no gay family, no gay couple, and the disagreement seems to be whether they now have to sign a piece of paper that says if there were a gay couple, we might have to look into whether theyre qualified and youre willing to have them say, but taking gay into account, you dont have to take it into account at all, but they dont want to do that. Now, that seems to me a very narrow ground for deciding a case that has enormous implications. Could you not say, hey, we think if there will were a gay couple and it really was a problem, youd have to do something about it like look into it and dont say gay and they say we dont want to do that, but its never come up. I mean, the natural thing for me would be to say, okay, you say what you want, well say what we want and if it ever comes up, well deal with it, but it never has. Is there any way that that has anything to do with how we would decide this case . Justice breyer, this has actually come up. Those another fca turned a couple away and what led to the newspaper article in this event and the city acted reasonably. It had been aware of csss religious beliefs for decades. Page 165, but never stopped the contract because it thought that css was operating within the contract terms and took css at its word until otherwise and at that point the city was worried about the city being a part of discrimination. They didnt declare a breach, they said the next annual contract we wont renew because theyre telling us after, they wont fulfill the contract. But the 19 million they took for foster care, they took some and the rest in fact. To this day, css is getting 26 million a year from the city, which is hardly something demonstrating religious hostility and that is for foster care and child services. So, i think the city took that reasonable limited action and they certainly dont need to wait for an instance of discrimination with regard to this particular entity. With nelson there was no evidence of drug abuse, but the government had the test and this court said it was okay. Justice alito. In your brief and opposition when you were trying to persuade us not to take this case, you said the city had redemption waiver in the future any request for the religious exemption. Sort here, would be direct to the Waiver Committee and handled through the procedures that it establishes, page 15. Was that accurate . That is accurate that we said at page 15 the city had established after the events that gave rise to this case, in its law department, something called a vote waiver and exemption request. Thats a General Committee. Thats not about foster care, or religious, its a General Committee for everything. Well, the plain meaning of that statement is that if css or another religious organization came to the city and said that we do not that its contrary to our religious beliefs to certify a samesex couple, there would be consideration of an exemption. Is that true . Your honor, the citys policy, the citys view on this has been clear from the start they cant make exemptions on the basis that a practice ordinance at all when it comes to things like this, the child excuse me the parent pool stage. There are some exemptions that can be done under 3. 21 at the matching stage when the child is matched with an agency, but thats really just about dhs making an individual referral to a particular agency at that limited particularized stage. If thats the citys policy then the statement i just read seems to me to be quite misleading. Ill move on from that. Look, if we are honest about whats really going on here, its not about ensuring that samesex couples in philadelphia have the opportunity to be Foster Parents, its the fact that the city cant stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the oldfashioned view about marriage. Isnt that the case . Absolutely not, Justice Alito. The text, of course, of all of this didnt say anything like that. As the District Court and 3rd circuit found, evident by evidence, piece by piece, they rejected that idea and i think Justice Alito the most telling fact the city is giving that entity which youre saying that we cant stand and the like, 26 million a year for foster care. I think the annual Supreme Court budget, one third of the annual Supreme Courts budget were doing that every single year for this entity. The record reflects, what Catholic Social Services has done has not denied any samesex couple the opportunity to be Foster Parents and refer such a couple if they would come to them to one of the many willing agency who would do what is necessary for them, theres no realistic chance thats going to happen, but the city nevertheless is willing to cut them off from participating, participation in this program, even if what that means is that there will be foster children in there will be children in flinch who will be denied the opportunity to have Foster Parents. Thats what the record shows, isnt it . Justice alito, three things, one, were happy to talk about the record, we dont think it supports that at all. Css told us if this happens, this is precisely what they would do, it did happen with respect to bethany and thats the exact colloquy you and i had, theres no evidence of drug abuse youve got to wait for it. And the opinion said no the government doesnt need to wait to act. And this is the third point. Here the government has identified the most compelling interest of protecting its own ward of the state. It needs to maximize the number of parents in the pool and avoid stigma to parents and ute Justice Sotomayor . Counsel, is there any evidence that since css has not been a part of this program, that less children have been placed overall . Absolutely not. In fact theres a District Court record found the opposite and thats true in other jurisdictions that adopted nonchrno nondiscrimination policies, thats in the brief and the aba studied this issue and found that these nondiscrimination policies increase the number of people available, not decrease because these or policies of discrimination deter people from entering the pool in the first place. Have catholic family numbers reduced since css hasnt been a part of the program . I dont think we have numbers on catholic, specifically, but in massachusetts, Boston Catholic Charities withdrew, other agencies filled the gap there were at least more kids in foster care then than now and we welcome the idea of css and other catholic entities to work with the kids thats why we give them 26 million to do so. We tremendously value. We werent looking for a fight here, obviously the city was torn up about it, but they looked at stigma and need to increase the pool and you couldnt have fdas drafting on new to a contract theyd signed. Going onto that issue in terms of tolerance because that seems to be part of the questioning of some of my colleagues and youre addressing it by saying theres tolerance in their work in other areas, theyre receiving a tremendous amount of money for their work with foster children in other ways. But looking at this under smith, that pool. When you say two different pools, can you become a he will visible family and then theres the pool of placing a child. How do you see smith addressing that . I think what smith does. At least in the contracting context, give the government wide latitude, you wouldnt need it, and i dont think we would win in the sovereign context, the fact, what youd be asking is this really a similar circumstance at that time the pool stage or child matching stage and there are different interests and thats what the government is saying and different harms. And across the board, flat refusal of a Government Agency to say, hey, the doors are closed to you entirely. Is very different from the sort of individualized best interest of the child determination theyre focusing on. They focus on disability as well, but that absolutely misstates the record, its state law that requires foster care agencies to have a special license for disability needs and thats all thats about. Again, thats not discrimination, thats specialization to meet a childs need. Has any parent been, other than disability but thats because they cant meet certain criteria independent of their disability. They cant do certain things for the child that are required. Has there ever been an agency that has or an exemption granted on the basis of a protected characteristic . No, your honor, the one thing i said we dont think of it as exemption, we think of an application of the best interest of a child. When the child with racial slurs and so for the safety of the child. Thats fundamentally different. Mr. Katyal im concerned about section 3. 21 of the contract. So, the 2019 version of the contract says, and im quoting here, that an agency shall not reject respective foster or adoptive parents or Services Based on Sexual Orientation unless an exception is granted by the commissioner in his or her sole discretion. Why isnt that exactly the kind of exemption that css wants here and why doesnt its presence undermine the states reported interest . Your honor, the District Court looked into this and found that dhs has never made an exception to its nondiscrimination requirement including under 3. 21. Would you say thats true, mr. Katyal that no exemption and been granted under that provision. I read smith and that you cant get out of it that as long as an exemption exists and that you could rely on it in the future that theres not neutrality here. I disagree with respect to the law and the facts. With respect to the law, smith didnt say that it triggers strict scrutiny. If says you cant give exemptions if theyre from nondiscrimination rolls, that would trigger strict scrutiny and we know this because smith said across the board something generally applicable and thats the example of something with exemptions and broad discretion as this courts opinions in armstrong and mccluskey recognizes. With respect to 3. 2 is, your honor, it does two things, barring a referral from dhs. A referral can only be from dhs. And that admits that. And the second thing, dhs can make an exception if the provider shall not reject a child unless exception is granted by the commissioner. Thats if the child lives far away, were not going to force them to take it. And theres nothing on classification on race, gender or anything like that with respect to 3. 21. And the practice, i think. Thank you. Justice gorsuch. Id like to follow up more or less where we left off. There seems to be some lack of clarity about which stage were at here. Whether were at the matching stage or the screening stage. As i understand it, this case is about to the screening stage, whether Catholic Services would be eligible to participate in the program at all, is that correct . When i say screening, i mean parent screening, css says they would not permit lgbt couples to be a part of if youre a married couple the doors are closed to you, but not to a heterosexual couple. Thats the stage of process were currently dealing with, correct . Thats right. At the screening stage, my understanding is, from your latest brief at least, that the fair practices ordinance forbid any exception exemption at all. Is that right. And thats our policy. To follow up on 3. 21 on the matching stage, why is that legally relevant here . Because its at a very different stage. At least in the department of the contracting case, its not similar in lacoombsy sense. Were about the growing the maximum of safe Foster Parents and like this blocking lgbt parents from coming in and sending signal to lgbt youth at the matching stage, youre going under state law, best interests of the child and thats an inquiry and applies handily, but maybe its in the really rarest of instances like the one example i was able to give you, you know, you might take a protected classification into account. Thank you. Justice kavanaugh. Good morning, mr. Katyal. I have kind after Bigger Picture and thought express and you can react as you wish. Seems like this case requires us to think about the balance between two very important rights recognized by this court, the religious exercise and brief right obviously in the First Amendment and the samesex recognized, and it seems when the rights come into conflict all levels of government should be careful and should often where possible and appropriate look for ways to accommodate both interests in reasonable ways. So you know, its very sensitive, controversial, there are strong, very strong feelings on all sides that warrant respect and it seems like we and governments should be looking where possible for winwin answers, recognizing that neither side is going to win completely on these issues, given the First Amendment on one hand and given abergfell on the other. When i look at this case thats not at all what happened here. 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 samesex couple had gone to css, even though 30 agencies are available for samesex couples and even though css would refer any samesex couple to one of those other agencies. And to be clear, i fully appreciate the stig mattic harm. I completely, fully appreciate it. But we need to find a balance that also respects religious beliefs. That was the promise, explicitly written by the court in abergfel and masterpiece the respect for religious beliefs and what i fear here is that the absolutist and extreme position that youre articulating would require us to go back on the promise of respect for religious believers. Justice kavanaugh, four things. First, we absolutely agree with you that these are feelings that werent respect and both of these rights are important and we share that same spirit. Second, i dont think the framing of this as religious versus samesex equality is the right one. The way the city sees this is religious versus religious. If you accept what the argument is they will allow another fca could say we wont allow baptists or buddhists or only allow those things. In that sense religion would be pitted against religion and that would be true not only in foster care, but a number of areas where the government contracts. Third practically, i dont think you can say this is a small tiny accommodation, whats the harm in it, because any individual accommodation will look reasonable. The problem is is chief justice bergers u nnanimous in one the income will be either for social distance or fcas with so many religious accommodations and lastly, when you say the city was looking for a fight or something. We couldnt for family disagree more. We wouldnt rush this to the Supreme Court, indeed we want it in the first carts below and looking at live testimony and precisely the allegations that you said about religious hospitality and those. Justice barrett. Thank you, mr. Chief justice. Good morning, mr. Katyal. Whether the city was functioning as a contractor or whether it was granting licenses. Is it possible for any entity to recruitment and certificate if ication for foster families without a contract from the city . Not with respect to this function, i think thats a very important point about what miss wyndham said, she kept saying that weve been doing this for two centuries, this. Private entities have never done this because whatever they did before like css they never selected who cares for kids in city custody applying state criteria. Indeed the whole point of the modern foster care system was to bring responsibility for those kid inside the government and not to leave it into the private hands. These are words of the state and have the highest interest in screening the parents. This isnt an example after licensee function, a licensee, like when someone practicing in a barbershop, this is with the permission of the justice. This is the opposite judge barrett, this is the citys kids at the zenith. Lets say that the city takes over the hospitals and say were going to be responsible for hospitals, but we will contract with private entities to actually run them. So theres a Catholic Hospital and gets a contract with the city to run it, in fact, a Catholic Hospital in existence before the state adopts this policy and i. T. Contract with the state provides that there are, and the contract to the state gives everyone is that you can get some exemptions for some medical procedure, but every hospital has to do abortions. Do we have this as licensing, or the Catholic Hospital, this is a Contractual Service . Three things, this is not a monopolizization case, after all they haved 26 million the lions share of the foster care, its not were occupying the with field. With respect to your hypothetical, there are two problems, one is, i think the that the government somehow monopolizing a private health care or hospital system, that would raise any number of constitutional problems and intuition why that hypothetical sound so horrible, because of that, that does the work. To wrap up, mr. Katyal. Id say three things are notable. This skas as judge scalia might say, to exclude parents from any religion, buddhist to baptist, and this court because it cant look at reasonable of belief opens the doors, indeed the clergy letter and radiated beyond foster care to all 50 states. The city would act the same way if they discriminated and the flip side is, too. The city contracts with bethany open to samesex couple despite religious opposition and the city continues with css to the tune of 26 million. These three indicia, a continuing policy with bethany and contracting with css itself are strong evidence the two courts below got it right. Finally, my friends never overcome the two court rule on neutrality. After three days of live testimony the trial court found it favored the city. And thats why we ask that the decision by the contraurt be affirmed. I think what it feels like it hard case, its acting on traditional religious beliefs and appears that the cost of accommodating would not be too high. But that overlooks problems with csss claim. First, css is not acting private capacity, but as a Government Contractor. And the governmental managerial interests as well as Government Services are made even handedly to all citizens and cannot turn on judicial assessments whether religious views are honorable or offensive. If they require accommodation then other allowances must be made for foster care or other agencies. And because theres no difference between independent contractors and employees, csss would imply that Police Officers could on religious grounds and with inmates, and could go on and on. Whatever rules might govern free exercise claims outside of contracting, its constitutional because its a reasonable rule governing those who will care for children in the citys custody. Mr. Fisher, suppose that the city of philadelphia decides it doesnt like the message that the church having an all male priesthood, the message that that conveys, it doesnt want to expose foster children to that belief, in Foster Parents, and so, it terminates csss contract because of the churchs that churchs belief in at that respect, are they free to do that . I think it would be two big differences between that and this case, mr. Chief justice. Number one, the court recognizing the clergy members in the church the way theyre structured within the church raises establishment clause questions and free exercise questions entirely different from a Government Contracting scenario like this on their own terms. Second of all, i dont understand any way that that rule would relate to the carrying out of foster care services. The core problem, the core question here is whether the government is imposing a reasonable condition well, the way it would relate is the same way that the, sames samesex ban because of the churchs view on it at csss, is that they think its stigmatizing, that it sends the wrong message for Foster Parents to belong to an entity that discriminates on the basis of gender. No, i think the stigma and harm that the city is looking to avoid is the discrimination with respect to people participating in the program. Thats very different than the churchs own structuring of its own internal clergy and operations. Thank you, counsel. Justice thomas. Thank you, mr. Chief justice mr. Fisher, i want to go back to the assessment of the pool as mr. Katyal designated it and the placement. Do you agree with him that both of these are in the have to be looked at in the best interest of the child . Well, i think just to be precise, Justice Thomas, the state law best interest of the child test applies only at the placement stage. Thats unique to the placement stage. I think what mr. Katyal was saying, of course the city and state are going to establish rules for family certification at the outset, and you know, in the general interest of children, but specifically speaking, the best interest of the child test comes into matching and just as under federal law and state laws under what excuse, im sorry to interrupt you were just short on time. So what would be the standard . Why the assessment of the family then, if its if you say statutorily, its only the placement thats in the best interest of the child . Whats the policy behind assessing the family . I think the idea behind assessing the family goes to the core of the reason why this is a city program. Is that these are children in city custody so the city is establishing criteria that are going to govern which people are allowed to undertake that. No, i mean. And generally, what are you looking for . Youre looking for people that can provide care and loving environment and Safe Environments to kids and and looking for that kind of a family . Pardon me . Isnt that ultimately just for the best interest of the child . I think thats one way to think about it, Justice Thomas and i think thats why mr mr. Katyal answered in that way. Im trying to be precise the way the law works, standards for certification are laid out in pennsylvania code section 3700. 64 and the best interest of the child standard is not there, its a list of secular criteria that the agencies are asked to apply. Thank you. Justice breyer. In general, what have you thought of being the right rules . Ive always thought that smith is a problem, or a solution to a problem that nobody could figure out how to answer it. If your opponents win, its pretty hard to see how all kinds of Government Programs can exist with every religion making exception for every kind of reason, sincerely, too. If you win, its hard to see how, for example, a religious group wants to meet on sunday. The only place to hold services that theres a fair no parking sign and they cant do it. I mean, they cant even hold religious services and we can think of a lot of examples like abortion and so forth and i think that led Justice Scalia to the absolute rule. He couldnt figure out another one. So do you have anything there that you could suggest . After all ripper is one way, they can change congress if we make a mistake, the constitution you really cant. Thats why i asked the question just to see what he is in your mind. Right, Justice Breyer. I think that Justice Scaliale, and the city of bernie reached a conclusion right on its own terms and and the most important thing i would tell you here, you dont have to ask that question. And they recognized that when we were dealing with internal affairs, in this case, its narrow, and Government Contracting case. Nasa versus nelson. The court asked a reasonable rule the government for insisting for contractors and the court used internal operations, so, all you have to do is put nelson together with ling and roy and tells you the free exercise clause allows the government the same power when dealing with internal operations. Justice alito. Do you think its fair to say this is simply a Government Contracting case when Catholic Social Services and other agencies cannot participate in this activity at all, an activity in which some of them at least have been participating long before it was taken over by the state, unless they are approved by the city . Even if its a partially contracting case, is it not also partially a licensing case . For two reasons we dont think it is, Justice Alito. First, even if the city did monopolize the services, it wouldnt be different from lang for the government to own the land or government versus nell zoran and working in the space program. As Justice Kagan said, and Justice Sotomayor, could do the certificati certification itself. And i want to he can no what my friend mr. Katyal says, yes, the same term foster care was used historically, but its a Different Program because the children are in city custody. Well, the government has expanded at all levels and it has taken over more and more programs that were previously conducted by private entities. What if the government took over all poe provision to Homeless People . Would that and an issue arose about whether a private entity could participate in that charitable activity, would you say thats purely a contracting case . I think i might have to hear a little more, but in general i do think that they could take over in a shelter in the community. Drawing a line where what about justice barretts example of a hospital. What if the state were to take over all hospitals and then contract that out to private entities . Well, i think that thats really hard to imagine exactly how that would work. We know health care is such a uniquely complicated context. And i think that even in systems where the government does take over health care, private options are Still Available so its hard for me to understand, you know, exactly how a hypothetical along those lines would play out. Youre just disagreeing with the hypothetical. I dont think its hard to imagine at all. But if you accept the hypothetical, whats the answer . Whats the answer to weather to what . Im sorry. Would your answer be the same that if the government took over all hospitals, but contracted it out to private entities, it could insist that the hospitals perform procedures that are objectionable on religious grounds to the contractors, socalled contractors, running these hospitals . I think to some degree, perhaps, Justice Alito, but i think there would be different questions raised by doctor and which medical procedures theyre going to carry out. The federal government, i take it what your hypothetical is raising Justice Sotomayor. Mr. Fisher, perhaps we should talk about the function . Because there is an amicus brief that suggests that a normal contractor cases that normal contractor cases you apply rational basis, but where the government has taken over a field, it should be strict scrutiny and this goes back to justice barretts earlier question how to define the field. There are still Foster Parents that private placement with Foster Parents that css can still engage in. The only children in the states custody are those that have been essentially abandoned or taken away from their parents, correct . I think in general terms its corrects, Justice Sotomayor. That on the one hand theres foster Care Certification for children in the citys custody, which is something that you can do only through a conduct of the city, under the terms discussing here. There are other things that mr. Katyal noted with the Foster Program when there are private things that they can do related to adoption and other ways to care for needy children. So, there is no occupying of field here, other than these are the these happen to be the kids who either because of abandonment or abuse have been taken away from their parents that are in the citys custody, correct . I think thats right. But the thing i want to make sure i stress, Justice Sotomayor. Even if the other side were right, the city, however you would want to look at it, occupied the field of parental certification would make it no different than lane, than nell zor nellson. And there are places theyll made to carry out a Certain Service and establish as nelson put it, reasonable rules to carry out that service. I have one last question f someone wanted to find a compromise in this case, can you suggest one that wouldnt do real damage to all the various lines of law that have been implicated here . Well, i think Justice Sotomayor, the place to start in that respect is where Justice Breyer started earlier today with the citys conception at pages 45 of its brief where css is concerned about, perception by participating in this program they are endorsing marriage for samesex couples, that they can disclaim that and make very clear that all theyre doing is following state law and to carry out a government function on the governments behalf and not purporting to speak for themselves in any. That the city has undermined asserted interest in nondiscrimination by having a series of other exemptions to the one that to the one that other exemptions that, similar to what css bants r wants and i talked with mr. Katyal about 3. 21, placing children consideration of race and at that stage. Was wondering if you could explain to me why those are permissible, but the city cannot be able to give an exemption to css. Of course, Justice Kagan. Let me say one thing about the law and give you a broad stroke answer in any im happy to answer. First the solicitor general, i think somewhat strangely, tried to put entirely aside the contracting context in this case asking about general applicability. The contract has to give reasonable assessment of its own interest in the contracting states. So even in this context, Justice Kagan, i want to stress that the government contexting im sorry, the Government Contracting context is highly relevant to this inquiry and i dont ng they denied. That. And in broad strokes, the other side points to for the certification process doesnt exist. They talked about disability being taken into account. Its not disability, but what i discussed with Justice Thomas neutral and caring for a child to which disability is sometimes relevant. That leads to child placement and theres a different set of rules that apply because its a different stage of the process. The key answer, the city reasonably concluded thats not a comparable setting. Thats not the scenario at certification stage where all were asking is whether somebody can care for children. Back to the question of compromise, css has not disputed that samesex couples are equally able to care for children. We think that the scenario is entirely different. Thank you, mr. Fisher. Justice gorsuch. Id like for you to expand on that a little further. Mr. Fisher. One of the challenges of smith, of course, is asking whether theres exception and that raises questions what level of generality should we look and what is comparable. Why is the 3. 21, that matching process officially like the screening process that we should consider it . Justice gorsuch, i think foretfor two reasons. The section applies to referrals from dhs thats not the certification process its the matching process and im sorry to interrupt i accept the legal point that there are different stages in the process formally speaking legally. Why shouldnt we take cognizance of it when were doing the smith analysis. Okay, let me answer this way then. Smith did not say the mere availability in the air in the individualized treatment is not enough to make it an i applicable law itself. You have to have disparate reasons or thats what the justice said that its not okay to let people wear beards for medical reasons, but not for religious reasons. Its not just in the air theres possibility of exceptions or differential treatment, its whether youve actually had such treatment. Otherwise you dont have a workable system of law. Thank you. Justice kavanaugh. Good morning, mr. Fisher, and welcome. Thank you for your and i want to thank all the parties for their excellent briefs and arguments and the amicus briefs which have been very valuable in thinking through the issues. Just a couple of questions to confirm a couple of things, factually here. You agree, i assume, that Catholic Social Services does important valuable work for vulnerable foster children in philadelphia . Of course, yes. And then do you agree that a samesex couple in philadelphia can become Foster Parents by going to one of the 30 agencies, indeed, do you agree that no samesex couple will gone to css, and if they did theyd be referred to one of those agencies . Do you agree with that . No, i dont. The samesex couple was turned away from bethany and the caution on the 30 agency idea. Remember we dont know how many agencies will discriminate based on Sexual Orientation or religion, if the city is required to grant exemptions and i dont think the court wants to go down the road to count up oum are discrimination. If there are one, two, five, thats a difficult area for the court to have to get into. I agree to that, but arguably the other response might be we shouldnt be looking for problems before we confront them. Fair enough, justice kavanaugh, remember, you dont get to this set of questions because this is a Government Contracting case. As the court said in nelson, if its reasonable. The government has two, one is to treat people equally. And second the government has a managerial interest as i was just describing, if you have to start granting exemptions, running the program through the government is very hard. And the city may say to heck with this, well do it ourselves. I dont think anybody disputes that the city could do that and do the certifications itself. It seems add that css is entitled to insist on its own rules when theyre carrying them out on the citys behalf. Justice barrett. I have a question on the amicus brief, the religious belief can never give to harm a third party even slightly. Im wondering if you agree with that, if so, can you tell me where in law the principle comes from. Justice barrett, im not sure that thats true as a categorical rule. I think as some of the questions pointed out this morning, when you get into situations like this, you have to balance on one hand with what the interests are on the other at least in the abstract. As i was just saying to justice kavanaugh, all you ask under nelson whether the governments rule is reasonable, even if you did get to that and even if it were relevant with third party arm. There are governmental harms and private harms and in amicus brief theyre turned away elsewhere. The deterrent effect. If they know that the government allows discrimination they may not apply in the first place. And the there would be these agencies would be of persons of your kind and would make it the worse i wouldnt take the categorical though. I want to sneak in one other question. I dont think that we can think that racism could be kung of in i example that css, they will not certify samesex couples an objection to samesex marriage would exemplary phi or is it just like Racial Discrimination. I think the court would have to accept them. The only question would be whether the compelling interest test applies differently in that scenario, at a dont think it would. As a matter of just compelling interest law the court has said not just that governments have an interest in eradicating race discrimination but also the court said discrimination this could be thought of a sex discrimination. I dont think you can drop a line in this context. A minute to wrap up, mr. Fisher. Thank you, mr. Chief justice. I would leave you with a couple of last point i was making which is i dont think anybody can dispute if the city wanted to do this work itself a good. The only question you have is whether the analysis is any different because the city is operating through an independent contractor. Cases like nelson tell you the answer is no. That just leaves the argument the solicitor general is making about neutrality and the like. The irreducible fact in that respect is that the city would not allow this discrimination for any reason. The District Court found this. I dont think anybody thinks this kind of activity would have been allowed in 2018 or going for word for any provider for any reason. For that reason we think this is a case one way to think about this is a case about equal treatment versus special privileges. The city has satisfied the equal treatment requirement and is not required to give special privileges here. Thank you, counsel. Three minutes for rebuttal. Thank you, mr. Chief justice. Three quick points. First, the discussion has come from philadelphia doesnt have a neutral and generally applicable law. They have waivers and exemptions. They let agencies consider factors prohibited under the fair practices ordinance and they dont follow that ordinance themselves. Philadelphia admits it is a point its public accommodations law and the analysis would be different if the court analyzed the use of Sovereign Authority under that law. Even under smith that triggers strict scrutiny and the city loses. Second, responders and ignore the long history of Catholic Social Services doing the work they does today. Partner with Foster Parents to provide children with a family come walking with and supporting those families through a years long and difficult process. This is the ministry that the city is trying to extinguish. The fact see us as carries at other ministries and provide services at a loss subsidizing the city does not change the fact the city is trying to extinguish this ministry. It has done so in the most restrictive manner sending a message she must be excluded because she partners with an agency of shares her front. Respondent of the court to decide some of the case that this case. They claim all kinds of harms a religious foster agencies serving the states and multiple states have even protected those agencies by law without negative results. Longstanding protections like rfra protect religious exercise and have contractors yet responders cannot identify with parade of portables has come to pass. Finally, none of this is necessary. It couldve been avoided by a properly functioning free exercise clause. The courts are struggling to parse the exact contours of a general applicability while loving foster families remain excluded. The text, history, traditions free exercise clause teach that when the government wants to bring a longstanding religious exercise it meets needs a compg reason to do so. Thats a straightforward approach in philadelphia cant hope to pass at it. In our Pluralistic Society this court has repeatedly said they should be room for those with different views. But that narrow view of the free exercise clause stands in in ay of that sensible result. Under smith, declassified by the courts below, government officials have no incentive to reach sensible accommodations, knowing there will be shielded by the flimsiest claim to have a generally applicable law. Our Pluralistic Society is at its best when it has a a free exercise clause that protects free exercise, not just of those who agree with the officials in charge. Thank you. Thank you, counsel. The case is submitted. The u. S. Said it would be back in session at noon eastern. Lawmakers will be working on the nomination of the u. S. District court judge for the Northern District of ohio. A confirmation vote is expected at 2 15 p. M. Eastern. Watch live coverage of the senate right here on cspan2. Tonight on booktv historian ia