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

Couples. The Supreme Court has until june of next year, to issue a ruling in the case. Fulton versus city of philadelphia. The honorable, chief justice and associate justices of the Supreme Court of the United States. Oye, oye. All persons having business before the honorable, Supreme Court of the United States are admonished to get their attention for the court is now sitting. God save the United States and its honorable court. We will hear argument this morning in case number 19120 three, fulton versus city of philadelphia. Ms. Windham . Mr. Chief justice and may it please the court, the courts below made a civil error. They failed to understand where a simple error. Date fail to understand where smith controls and where does not. Aith does not control where government uses individual exemptions or makes other exceptions that undermine rules or when it changes rules to prohibit a religious practice. Philadelphia made all three errors here. The city cannot identify a neutral, generally applicable law after six attempt. It now acknowledges its decisions are subjective and individualized. Yet the courts below still applied to smith. They even said smith would be a dead letter if petitioners prevailed. That demonstrates the confusion and instability smith has caused. For adents ask the court new limited constitutional standard that is even less protective of constitutional exercise. That has no basis. Has no compelling reason for excluding Catholic Social Services, which has exercised its faith by serving at risk children in philadelphia for two centuries. Nor does it have any interest in refusing to allow the agency to step aside and provide referrals elsewhere. Loving mothers just because they chose to partner with an agency that shared their faith. Fosterlgbtq couples can or the law and decades of experience say otherwise. The free exercise clause protects petitioners vital work for the philadelphia community. I welcome the courts questions. This is a case involving free isrcise rights, but it intention with another set of rights. However you think that tension should be resolved as a matter regulation,t 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. Foster program . I dont believe that analysis should control here for a couple of different reasons. When the government is acting as sovereign using its regulatory authority, like when it is applying a citywide fair practices ordinance or the ordinances in looking me, the court does the normal free exercise cause analysis. The same thing is true when the city is deciding who is able to participate in a program. You dont see any difference in terms of the analysis, whether it is simply a the city issuing a rule that governs acrosstheboard, as opposed to part of the rules for participating in a program . Not and its sovereign capacity managerial capacity or a business capacity . This city is not acting in one of those capacities here. They are relying on the fair practices ordinance, the fact that they put that into context. Do you think there are different rules . If you have a situation unlike look to me, licensing, when the government is managing internal affairs, and governments interest may be stronger. Justice thomas when you have aspects of that, do you analyze it as a government contract or sort of a licensure program, where the city has basically taken over an area and now it has certain requirements of the regulated industry . Thomas, as your honor acknowledged at the end, the city is trying to regulate an area that has historically been an area of religious practice. I think that says this case apart from many cases the city is siding. They are using regulatory ,uthority, Sovereign Authority Licensing Authority to decide who gets to participate. Those are cases where this courts precedent says you do the normal constitutional analysis. There is not a special rule. We are not an employee or agent of the city. The same analysis should apply here as it did in trinitylutheran. This is different from a case where you are trying to reach out as a third party and tell the city how to run internal affairs. The city is reaching out and telling a private religious ministry, which has been doing how work for two centuries, to run its internal affairs and corset to make statements contrary to its religious beliefs as a condition of continuing to participate in the religious exercise that they have carried out in philadelphia centuries. Thank you. And 46 of the citys brief, they say they are required to endure samesex marriages, they say all they are asking you to do is evaluate a couple without reference to whether they are samesex or not. Ou have read that it says your objection is to being required to evaluate and provide written endorsements of a samesex relationship, but they are not saying to do that. Say add something onto any response you make and say that you do not endorse , say it. Marriages you see what it says. And 46 weres 45 written right into your contract , allowing you to say whatever you want about samesex. Do isey want you to evaluate this couple irrespective of same or different sex. What is your religious objection to that . Justice breyer, i am going to point your honor to the joint 237,dix at 210211 and where that question was asked. Certifying a home of a samesex couple would be in violation of their religious beliefs. A final homestudy includes a written endorsement of the relevant relationships of the Foster Parent, and the state law as well asks an agency to assess the ability of applicants for approval as Foster Parents. What the city is asking css to do here is certify, validate, and make statements that it cannot make. I am not aware of any case where this court has said it is ok to compel speech oh course religious exercise or coerce religious exercise, as long as tag. An a disclaimer on it it would be hurtful for css and the couple for them to go into their home, assess their relationships, interview them about their relationships and their family, and then at the end of that have to say, we cannot provide the approval for you and your family. Css is making a modest request here, which is to step aside and be able to allow diverse religious agencies to serve the city of philadelphia as they have done successfully for many years. You dont have to say, according to them, whether the couple is married, not married, whether it is samesex, whether it is different sex. You just put that to the side, make a note that your putting that to the side, and say other than that, they are ok, or they are not ok. Thats all you have to do. Whats the problem . I still dont quite see it. You send in your response that youll dont want to do it, which i understand, but they say they are imposing a requirement that does not interfere with your, they cannot figure out, how does it interfere . Tell me once again, was the problem what is the problem . In your last answer, you just said they cannot make you say anything. We write 45 and 46 and say you can Say 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 side. Say other than that come are they qualified . What they are still being asked to do is evaluate, assess, and approve of a couple hundred state law and in their own written report. That is something that they have testified that they cannot do. This is also not an unknown or unusual religious belief. 11 states have passed laws to specifically protect Child Welfare providers in this context. There have been agency closures across the country over this very issue. What we are asking here Justice Alito . Let me ask you a couple of questions about what is in the record of this case, about the facts of the case. Reflects,the record how many samesex couples in philadelphia have been denied the opportunity to be Foster Parents as a part of Catholic Social Services policy . Zero. Approachedven Catholic Social Services for approval or endorsement. Before the issue now, how may children have been placed, were in homes that have been evaluated by Catholic Social Services . At the time of the referral freeze, there were well over 100 children currently being served. Beenthe years, there have thousands 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 they were frozen, there were 250 children in group homes who needed to be moved out of those homes and into family homes. This is in the best interest of the children. It is actually an obligation under state law. Figaro acknowledged that those children were still in group homes and those children were not going to be moved into homes. Homes supported by Catholic Social Services. One of your main arguments concerns the fact that there are exemptions to general we actual applicable rules under the citys policies. Cityscertain about the final position on the availability of exemptions. I understand that there are individualized exemptions for 3. 21 of the contract. Are categorical exemptions. The city itself actually deviates from the fair practices ordinance, even though it is bound by it, when it is making placement decisions in foster care. Didnt it make the exemptions at the initial stage or only the placement stage . City exemptions are at the placement stage. For the agency, those exemptions are happening when they are carrying out the home study. Course, the waiver and Exemption Committee could give them at any stage. Thank you. Justice sotomayor . Justice sotomayor i am 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 and certifications internally. They hire employees within the government, set up criteria, and they are the ones who choose to certify a family are not. Why are you not any different than a Government Contractor . What license are you receiving . I have never heard of a license where they pay you to take the license. 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. Notice sotomayor thats different than deciding setting forth criteria to hire someone to do work for you. Argument, but i am happy having a very hard time excepting how when the city sets forth a set of criteria, only these people can do this work for me. Thats not a license, that is an employment contract. The city has been Crystal Clear that css is not its employee or agent. Pennsylvania has chosen to partner with private agencies. Justice sotomayor no, but 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, or people who are being retained to do things for the government where we set the government cant set the criteria it wants. Why are you any different . What the city is trying to do is tell religious groups have been doing this prior to when the city got involved, we are going to exclude you. That is something that the free exercise clause prohibits. That is what philadelphia is attempting to do here. Position is as dangerous one. They are saying, even if you are not the employee or agent Justice Sotomayor im sorry, counsel. The idea that a contractor with a religious belief could come in other religions from being families, certifying families, exclude someone with a disability, how do we avoid that . Couples . E interracial the city actually allows agencies to exclude people with disabilities today. Exceptions. F the Justice Sotomayor thats not an exclusion. They require an agency to be specialized in that placement. If the agency gets the specialization, they can become an. The agency can exclude parents on the basis of disability from providing foster care. Justice sotomayor what does that have to do with certifying a family . Meaning, those are two different functions. The certification process is who is eligible, and they dont require someone to be married even, samesex or not. That is different than placing a child, which is governed by the best interests of a child. Briefly, counsel. Doesstice, the state law take into account disability, including mental and emotional stability. Counsel. You, Justice Kagan. Give you alike to hypothetical. Suppose there is a state that does not want to operate its prisons itself, so it contracts with private organizations to do so. In the contract, there is a provision that says that no employee can use drugs of any kind. Group that wants to operate a prison says it wants an exemption for peyote use. What would be the result in that case . I think to know the result in that case, we would have to know whether the governments rules there are neutral and generally applicable, i believe. I guess the question that i am trying to get at is, here is the government in its capacity , aa contractor saying condition that is extremely relevant to the contract, in its view. Shouldnt the government have leeway to do that . To just say, it is not matter why you want to use peyote, whether it is religious or anything else, we are just going to say there should be no peyote use and no other drug use . I think the state would be likely to prevail in that case for a couple reasons. Unlike here, the governments interests are going to be a lot stronger. The government there is taking something that is traditionally a Public Function and handing it out to private organizations, as opposed to here, increasingly regulating and restricting work that has traditionally been private. To putou excuse me, just another question on the table. There are a lot of things that governments do now that traditionally wore down but private organizations, religious organizations. Homesn go through youth or homeless shelters. Philanthropy is not regulated and conducted by the government now regulated and conducted by the government. Why should that matter . Does the free exercise clause shrink every time the government expands its reach . To regulate work that is historically and traditionally done by religious groups . Would you have a different argument if a religious group that had never engaged in this kind of activity said now, we want to . Would that make a difference to you . I think it would make a difference. I think the history is important. When you are looking at the governments interest in that case, that would be relevant, too. It has demonstrated through the years that it can do this work successfully for the children of philadelphia with no detriment to the lgbtq population of philadelphia. Justice gorsuch . What do we do with the fact that the city seems to be representing to us that the fair practice ordinances as a binding of its own force and the department cannot offer any . Xemptions the city is saying it is illegal for you to do this work in the city of philadelphia, whether you contract with the government or not. Philadelphia, in its written documents with the Catholic Social Services, treated . It is is it unemployed, and agent an employee, agent . Css is an independent contractor. How long has Catholic Services been engaged in this activity . For two centuries now. Your dedo we do with facto exemption argument . We have a finding by the District Court that there are none. The District Courts error is an error of law. It was a generally applicable law as long as it did not prescribe conduct. The District Court had the wrong idea about what counts as an exception, what counts to make something not generally applicable. It made an error of law. If we thought that were a finding of fact and we were stuck with that, what would you argue . That the court did think it was a finding of fact. The court is going to make a review of the record. Thats particularly pertinent here when we are talking about the words of a contract, the words of a city lot, the words of a state regulation. With respect to section oh, i see my time has expired. Thank you, counsel. Justice kavanaugh . I just want to make sure i have some of the facts down pat here. First, as i understand it, philadelphia contracts with about 30 private foster agencies to find and train and support foster families and Catholic Social Services is just one of them, as i understand it. If 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 Foster Parent. Third, no samesex couple has ever come to Catholic Social Services and its current program. Services hasal never denied any samesex couple the opportunity to be Foster Parents in philadelphia. I want to make sure those three facts are accurate and you can elaborate as you see fit. Thats correct, justice kavanaugh. Css is not going to prevent any samesex couple from being able to foster in philadelphia. There are many other agencies out there that are merely asking to step aside. The city does not have a compelling interest here. Worked a system that has effectively and worked well for a number of years. The city of philadelphia had an easy option to allow Catholic Social Services to continue the great work that has been doing. Because the courts below decided to apply Employment Division v smith, the city thinks its under no obligation to consider respect and accommodate religious exercise, which demonstrates how far off the rails are free exercise jurisprudence has gone in this case. Thank you. Justice barrett . Justice barrett you just kind of indicated that may be smith should not have been applied here. You argue that smith should be overruled. You also say that you win even under smith, because this policy is neither generally applicable or neutral. If you are right about that, why should we even entertain the question whether to overrule smith . Your exactly right that we can and should win this case, even under smith. The question to the court will be how it resolves the legal question and what guidance it provides to the court below. This court in cases like Trinity Lutheran and espinoza looks to the text, history, and traditions of free exercise clause. Those made clear that smith is a bad fit. Smith has caused the negative results. Its prediction has actually not borne out. It is possible for the government to accommodate and partner with religious organizations to do religious Barrett Justice what would you replace smith with . Freebelieve the courts exercise jurisprudence gives us some guidance there in ministerial exemption or church autonomy. Look at the line of cases. The court has looked at the nonneutrality or targeting. In other cases, i think the question should be pretty simple, is the free exercise of religion being prohibited . Does the government have a compelling reason for doing so . Here, the government is not. Justice barrett if we did overrule smith or frankly, even if we did not, lets take this out of the samesex marriage context and put it into the interracial marriage context. An agency whowas believed that interracial marriage was an offense against god, and therefore, objected to certifying interracial couples as foster families . Would they be entitled to an exemption . If not, how is that distinguishable from csss refusal to certify children to couples and samesex marriage is. No, in samesex marriages. No, your honor. This court has been clear. The government has a compelling interest in eradicating Racial Discrimination. Werea far cry from here, commissioner olley said the interest is no stronger or weaker than enforcing any other policy. Its hard to imagine the city making that kind of concession involving interracial marriage. You have a minute to wrap up. Philadelphia will make exceptions to its rules for lots of reasons, but not for the. Eason of csss religious exercise regardless of the Legal Mechanism that philadelphia loses jesus, the fact loses, the fact is css is breaking the law. Philadelphia will not place children with sharon, tony, or css unless their church changes or violates its beliefs. Society, aalistic properly functioning free exercise clause is supposed to prevent this kind of unnecessary and harmful conflict. There are children in need with loving homes waiting for them. Neither philadelphia nor smith should stand in the way. Thank you. Thank you, counsel. Mr. Chief justice, it may please the court, philadelphia has not afforded Catholic Social Services the tolerance of religious practice that is required by the free exercise clause and vital to our pluralistic nation. The city refuses to place foster children in available foster f css werely because i ever asked to certify a gay couple, it will respectfully decline and refer them to another foster agency. The citys ciccone in response disk against draconian response discriminates against religious exercise for two reasons. A seeks to apply nondiscrimination requirement to css despite having displayed similar secular conduct. The city has not neutrally applied this role. It has rule. It has treated a winwin come combination as not tolerable. Bans a list of objectionable practices. Unless an exception is granted by the commissioner at his or her sole discretion. Has an exception ever been granted under that provision . I am not sure there is any evidence to that one way or the other, your honor. I think the key exception that has been granted and recognized in the record is that the city both requires, tolerates, and itself engages in the sideration of protected one certifying and placing particular,ren, in under five pennsylvania code 3764, the city requires agencies to consider both familial and disability in certifying Foster Parents. The city has tolerated racial and ethnicbased outreach for Foster Parents. The city itself considers race when placing children race and disability when placing children. The federal government has an extensive contracting regime. Think,s distinctions, i on the basis of disability, minority ownership, and all the. All that. Do contractors have to be applicable generally across the board, even with protected status . The federal government of course is subject to and went if a state chooses to recognize exemptions to its antidiscrimination provision, it can no longer claim to be acting in a generally applicable and neutrally. Justice thomas . I have no questions. Justice breyer . Justice breyer yes. Sorry, the machine did not work. Can you hear me . Yes, your honor. Justice breyer very well. I would like to follow up on two questions that have been asked, the questions of the interracial marriage. Everything is the same, except it is interracial. The response is, thats a compelling interest, this is not. Examples. Ther the government wants to contract to a food distributor to supply food on all military bases. Because they are orthodox jews, they want nothing to do with hams. They want nothing to do with it. Or consider a religion which we are bidding on this contract for local transportation and we want men and women to sit separately or women to wear headscarves. In a contracting basis, is it your opinion that the government just has to do that, has to give into the religious belief or not . I think the question under our submission is whether the government is act in a generally applicable and neutral way. If there is a blanket antidiscrimination provision, that would be wanting. One thing. If the government is forced to have an antidiscrimination provision and itself recognizes exceptions, it is generally going to have to have undermined its interest. It cannot tolerate deviation for religious accommodation. We can get other people to supply the ham, they say. We cannot do anything about this, the headscarves, and we cannot do anything about the interracial marriage. How does that work out . I would differentiate the interracial marriage from the rest of the them, your honor. On interracial marriage, this court has made clear repeatedly that there is a particularly compelling interest in eradicating Racial Discrimination. I will interrupt you right here. Two of you said this. That we should write an opinion which says discrimination on the basis of race constitutionally speaking is different than discrimination on the basis of gender, religion, on the basis of nationality, on the basis of homosexuality. Is that the opinion you want us to write . Your honor, i think this said somethingdy very similar about how race is unique in this countrys history. Presents a that unique and compelling interest. Justice alito didnt the court say exactly that . Didnt the court say that there respectablee and reasons for continuing to oppose samesex marriage . Would the court say the same thing about interracial marriage . Sorry, your honor. Loving did not say that and never would have say that. It was also recognized similarly context andre circumstances in which gay couples can recognize and accept that there are longstanding, samesexed sincere marriage. Ofommodating those sorts religious practices does not undermine the compelling sorry, tolerating 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 that significant compelling interests in that topic. We dont reach constitutional questions as a general matter unless we have to. Thats a strong policy. What do the arguments in this case about the complicated arguments about exemptions and the new arguments about questionng, the whether Catholic Social Services is more like a licensee or a contractor. Say about the stability of the Employment Division versus smith precedent . Governmentor, the have not taken a position on smith. We do think this is a relatively straightforward case under smith that the city has not acted in a generally applicable and neutral way. We think that the record makes clear that the city has recognized exceptions from its antidiscrimination provision. They made a legal error in not treating those as exemptions because they looked if an entity does this practice for a nonreligious reason. Been a nonreligious actor who had engaged in a ritual sacrifice of an animal, ordinance would have picked up those people, t Justice Sotomayoro o. Ive 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 is an interest that the state could seek to protect. They rejection on the basis of race or any protected category, creates a stigma on that person. You have an antidiscrimination lawn the basis of protected classes. As aou diminishing that compelling state interest . No, your honor. Thatnk consideration of just cuts to two the opposite direction here for reasons. The first reason is, no gay couple is being denied the ability to serve as a Foster Parent in this situation. Justice sotomayor let me interrupt you. They are by this agency. Css is saying to them, i will not certify you. It is an independent contractor with the city. The city has said to that couple, we wont discriminate against you. Does not want to serve you, does not want to certify you, not on the basis of any of the criteria that the stay as set forth. You might me every criteria that the state sets forth, but they are imposing an additional criteria. Two points about that, your honor. As a practical matter, no gay r actually eve tried. Justice sotomayor i suspect part of that is just natural, meaning people gravitate to agencies that are known by the community. This is one of the arguments that was resolved here. T the petitioner its not that the agency has that the city has agencies who cater only to one community, is that some agencies live in a particular community so more people come to it from the community. Your honor, respectfully, i your honor, respectfully, i think it might more reflected the point that Justice Alito made early, that gay couples can recognize and accept that the Catholic Social Services and Catholic Church has deepseated, sincere religious objection to gay marriage, and therefore, dont seek out css as a foster agency. Thatimportant to emphasize the city rules do consider disability when considering certified Foster Parents certifying Foster Parents. Foster parents can be denied the ability to serve. The city is allowing that sort of dignitary harm. Not dignitary harm is enough but they are not willing to let that happen in this is a totally it hypothetical is a totally hypothetical harm. Because it has recognized a slew of exceptions. Is a compelling state interest to want to eradicate discrimination against gays and lesbians . I am sorry, your honor. I did not hear your question. Is that a compelling state interest . Not denying the significance of that interest in the abstract. In the abstract, perhaps. On the facts of this case, the government has undermined this. Perhaps. Is it yes or no . We have not taken an answer on that question. The question is whether the city of philadelphia has a compelling interest and the city of philadelphia did not because they have undermined the interest by recognizing a series of exemptions. Having recognized all those exceptions, it no longer has a compelling interest in insisting the one situation where it cannot abide by any discrimination and Sexual Orientation in Sexual Orientation. You said the city of philadelphia could not do the same thing with respect to race. The same suppose exceptions are , ready to undermine it. You said that would come out differently and i am seeking to find out a reason why. Becauseeason why is Racial Discrimination is particularly unique and compelling thats like super compelling. Is that the idea . Thats right it recognized an exception to the role for Racial Discrimination. For racial this cremation. A compelling state interest allows the state to act. Right. The question is whether the government has undermined the interest by recognizing exemptions exceptions. The exceptions the government has recognized here do not undermine its compelling interest because most of the exceptions do not even involve race. The only ones that do involve race involve individualized considerations of race. Thank you. Justice gorsuch . Can we circle back to the question whether Catholic Social Services should be treated as an employee or agent, and whether the city can effectively take service that had been provided privately for some time so that it over so much it regulates it pervasively and its analysis should not apply at all . Can you address that concern . Its true case, while that the government in some contexts gets greater latitude when it is acting in its capacity, what it does not get is the ability to discriminate against contractors on the basis of their religion or religious exercise. Kagansjustice hypothetical from earlier, if you have a prison with prison contractors and allows Prison Guards to bring in peyote, it cannot turn around and say it will not allow Prison Guards to bring in iowa oscar ayahu asca. Put aside the exemptions argument. Toded otherwise be identical would it otherwise be identical to a city or Employee Agency in the governments view . No. The statements made by commissioner figaro and the city council, those two. I am asking you to put that kind of stuff aside. O, if you take both the exemptions and the statements out of the case, your honor, the government has not taken a position about how a case like that should be addressed. Our submission is focused on both the exemption and the state. Lets deal with the exemptions. What do we do with the fair practices ordinance . And argument by the city, when we normally take their representations of the law with some respect . There are no exemptions here. 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 children. Thank you. My time has expired. Thank you. Justice kavanaugh . Justice kavanaugh good morning. What if Catholic Social Services were the only private agency in philadelphia that performed the service . Meaning that samesex couples in philadelphia simply could not become Foster Parents . Lets also assume there are no exemptions or other statements that are relevant to the analysis. In that circumstance, would there be any different analysis or result in a case like this . Yes, i think it would be a significantly harder case because the city at that point would have an interest that is not presented here, namely the interest in ensuring that gay couples in philadelphia would have the opportunity to serve as Foster Parents. Of course, that is not the fact we have here. The facts in this case is that there are dozens of foster agencies available to serve gay couples in the city of philadelphia. There is no evidence that any gay couple has ever even tried to use css as its agency. Hand, what philadelphia is doing does not even help gay couples. What it is doing instead is harming their children it is trying to serve. Thank you. Justice barrett . Morning. Arrett good so i am wondering how we decide if a law is generally applicable in the relevant respect. You said the city recognizes a slew of exceptions. None of them are for the antidiscrimination requirement. It is not the same thing for granting an exemption for sunday Sabbath Service but not saturday Sabbath Service. How do we go about identifying what the relevant factor is in deciding whether a law is generally applicable . Case, thenor in this city claims to be enforcing its fair practice ordinance, which prohibits differentiation or preference in the treatment of a person on the basis of a string of traits. They recognize exemptions for a variety of those traits. Now its true that there is some examples of them recognizing exemptions for Sexual Orientation. Unless they can say that for some reason, Sexual Orientation discrimination is the one type of discrimination under which they can abide, no exemptions whatsoever, even more so than race, disability, it reveals that those are comparable traits and they are recognizing exemptions and other contacts for the best interest of the child. Here, when the children would be better served by recognizing an exemption for css that would allow css to continue to provide this work, the city refuses to do so. Lack ofthe sort of religious tolerance and neutrality that cases in the Third Circuit are focused on. What if the ordinance said there should be no exemptions permitted with respect to the samesex marriage antidiscrimination requirement . And had another section which as theed some exceptions City Employees here, like considering race and the placement of a child . Would that be generally then . Able city wast case, the essentially making a value judgment in the same way that in the same way that the city allowed killing for certain reasons but not other reasons. You can always imagine parsing out the statute in a different way and sort of gerrymandering the statute. Ultimately, the question is whether the government is interest religious visaviss secular interest. We think that is what is happening here, because the government is recognizing exemptions. Would you like to wrap up for a minute . Thank you. I think here, at the end of the day, with the city has done is nose than cutting off its its nose. What it is doing is cutting off homes. The church itself engages in various forms of discrimination for the best interest of children. It then turns around and refuses to abide by any form of with respect to Sexual Orientation in order to deny an accommodation to the Catholic Church. The statements made make clear that the reason they are doing that is because they view it is some sort of odious anachronism, rather than a decent and honorable view that people can recognize and accept in a country thats permitted to religious tolerance. Thank you, counsel. Thank you, mr. Chief justice. This case is not about private activity or beliefs. When a taxpayerfunded contract is assigned, it is government power to inspect and approve foster families under the pennsylvania code. A universal clause in every bars Sexual Orientation discrimination when carrying out that power. That clause contains no exceptions and applies equally to every fsa, religious and secular alike. There is no precedent for such a thing. This is, as the chief justice said, the citys own program and own words of the state. The government has broad powers to impose conditions on contractors that stand in the governments shoes performing government functions. Miss windham even admitted that the government has more leeway as a contractor. She just said css is a one. The contract is is not one. The contract is clear that they are. Means fsas could discriminate against lgbt kids or categorically against foster gender. On or religion Justice Sotomayor asked that question and i did not quite hear a response from the other side. Hearing t courts other fcas discriminate by religion. Petitioners rule would compel governments to eliminate these practices. For. Ays it was targeted these beliefs after three days of live testimony, that never happened. ThaThird Circuit agreed the agreed. Childnsel, if a foster requested not to be placed with a samesex couple, would you take that into consideration in placing the child . Thats at a very different stage. Thats at a matching stage. We certainly have come across the idea Foster Parents and say they can request a particular race. I am not sure if we have had the question of the child itself. Thats a very different thing. Child matching stage, at that stage, youre looking to the best interests. Polcase is about the stage and who is eligible at all to become a Foster Parent. Youre comfortable with the concept of discriminating in this program on the basis of Sexual Orientation. But you have a very strict rule, you said there would be no exceptions to csss similar taking into account of the Sexual Orientation status of the would be paired, Foster Parents parents, Foster Parents. It is the same role at both stages. Stage, there is a anygorical barring of discrimination paired the child matching stage looks to the best interests of the child. That is not categorically exclude anyone. What my friend on the others is doing is taking one thing, which is a very, very limited use of , take into account as part of the best interests of the child. They can only find one instance, when a kid used racial slurs. They avoided that placement of the kid with someone of that race. Justice thomas . Justice thomas thank you, mr. Chief justice. You place in your briefs and your argument today a lot of reliance on the fact that on your point that css is a contractor. 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. That would be a very different case. Because this is the contract, the government has far more leeway in what is actually similar when you heard all those things about race and disability and the like. Courts must give deference to the governments reasonable assessments of its interest as a contractor. When you looking are looking to what is similar or different, it is important to understand that it is not similar. The government is saying that that distinction is made on the best interest of the child and made at a point when their interests are very different. It is about matching kids. It is not about discrimination. It isvernment says nothing like the acrosstheboard, flat refusal that they want to hear. 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 at that stage. Here, we are talking about that first stage. I would like to get one question in before my time expires. Dont you think it is in the best interest of the child to pool that is beneficial to the child . I do not understand why that is not also in the best interest of the child. Absolutely. We 100 agree. When you enable discrimination on the basis of orientation, that will stigmatize the youth. Lgbt kids are an outsized number of people in the foster care population. It will undermine the ability of the program to operate, but absolutely, justice, we 100 agree that a child should be you know, the best interest of a child looks to, what is the best place for that particular child . Thank you. Justice breyer . Justice breyer what is bothering me quite a lot about this case is i think that no downy has ever been turned by this agency. Indeed, none has ever applied, no gay family, no gay couple. The disagreement seems to be that they now have to sign a piece of paper that says, if there were a gay couple, we might have to look into whether they are qualified. Who are willing to have them say, you dont have to take it into account at all. They dont want to do that. That seems to me a very narrow ground for deciding a case that has enormous implications. Think if not say, we there were ever a gay couple and it really was a problem, you would have to do something about it, like look into it . They say, we dont even want to do that, thats never come up. Thing wouldnatural 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. Now is there any way that that has anything to do with how we would decide this case . Justice breyer, this has actually come up. Bethany, the other fca, turned a couple away. Thats what led to the newspaper article in this entire set of events. And in response, i think the city acted reasonably. It had been aware of csss religious beliefs for decades thats joint appendix page 165 but had never stopped the contract because it thought that css was operating within the contract terms. They took css at its word, until they learned otherwise. And it was at that point that the city said were worried about being making the city itself a party to discrimination. And even then, they didnt declare a breach. Rather, they just said the next annual contract we wont renew because theyre telling us, after our investigation, they wont fulfill the terms of the contract. But, notably, of the 17 19 Million Dollars they gave css for foster care, they took two away for this child pool excuse me the parent pool function, but they left the rest intact. And 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 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 respect to this particular entity. I mean, in nasa versus nelson, there was no evidence of drug abuse, but the government still insisted on tests, and this court was unanimous in saying that was okay. Justice alito. In your brief in opposition, when you were trying to persuade us not to take this case, you represented that the city had adopted an Exemption Waiver Committee to ensure that in the future any requests for a religious exemption of the sort at issue here would be directed to the waiver Exemption Committee and handled through the procedures that it establishes. Page 15. Was that accurate . That is accurate, your honor, that we cite at page 15 that the city had established, after the events that gave rise to this case, in its law department, something to address waiver and exemption requests. Thats a General Committee. Thats not even about foster care agencies, not even about religion. Its a General Committee for everything that looked to 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 it is contrary to our religious beliefs to certify a samesex couple, there would be consideration of an exemption. Your your honor is that true . The citys policy the citys view on this has been clear from the start. They cant make exceptions on the basis of the fair practices ordinance at all when it comes to things like this at the child pool excuse me at the parent pool stage. There are some exceptions 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 well, it if that is the citys policy, then the statement that i just read seems to me to be quite misleading, but ill move on from that. Look, if we 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 doesnt say anything like that. As the District Court and Third Circuit found going evidence by evidence, piece by piece, they rejected that idea. And i think, Justice Alito, the most telling fact about that is, right now, the city is giving that very entity which youre saying that you know, which youre saying that we cant stand and the like, 26 Million Dollars a year for foster care. I think the annual Supreme Court budget thats onethird of the annual Supreme Courts budget. Were doing that every single year for this entity. Well, as far as the record reflects, no what Catholic Social Services has done has not denied any samesex couple the opportunity to be Foster Parents. And because they would refer such a couple, if one were to come to them, to one of the many agencies that is willing to to do what is necessary for them, theres no realistic chance that that is ever 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 philadelphia there will be children in philadelphia who will be denied the opportunity to have Foster Parents. Thats what the record shows, isnt it . Justice alito, three things. One, we are very happy to talk about the record because we dont think it supports that at all. Indeed, it supports that css told us that, if this happens, this is precisely what they would do. It did happen with respect to bethany. Second, that was the exact colloquy you and i had many years ago in nasa versus nelson when the petitioner said, hey, theres no evidence of drug abuse, youve got to wait for it. And your unanimous opinion for the court said, no, the government can it doesnt need to wait in order to act. And thats particularly so and this is my third point here because, here, the government has identified the most compelling of interests in protecting its own wards of the state. It needs to maximize the number of parents in the pool and avoid stigma to parents and to youth because the 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, Justice Sotomayor. In fact, the District Court in the record found the opposite. And thats also true in other jurisdictions that have adopted nondiscrimination policies, such as d. C. And illinois. Thats all in the 22 states brief. And the aba has studied this particular issue and found that these nondiscrimination policies increase the number of people available, not decrease, because these acts 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 this program . I dont think we have numbers on catholic specifically, but we do have numbers, for example, from massachusetts that when Boston Catholic Charities withdrew, other agencies filled the gap so that there were at least more there were more kids in foster care then than now. And we certainly welcome the idea of catholic of css and other catholic entities protect protecting and working with the foster kids. Thats why were giving them 26 Million Dollars a year to do so. We tremendously value what theyre doing. We werent looking for some sort of fight here. Obviously, the city was torn up about it. But they looked at the the stigma, they looked at the need to increase the pool, and they looked at and thought about the fact that you couldnt have fcas just grafting on new requirements to a contract that they themselves signed. Going to 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, what did when you say theres two different pools, one is the pool of can you become an eligible family, and then theres the pool of placing a child. How do you see smith addressing that . I think what smith does is, at least in the contracting context, give the government wide latitude. You wouldnt even need it because i think we would win even in the sovereign context, but i think the fact what youd be asking is, is this really a similar circumstance at the pool stage or at the child matching stage. And there are really different interests thats what the government is saying and different harms. An acrosstheboard 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 interests of the child determination that they are focusing on. And, you know, they focus on disability as well, but that absolutely misstates the record because its state law that requires foster care agencies to have a special license for disability needs. Thats all thats about. Again, thats not discrimination. Thats specialization to meet a childs needs. Has any parent been, other than disability, but thats because they cant meet certain criteria thats independent of their disability, they cant do certain things for the child which are required, but 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 that i said and we dont think of it as an exception, we think of it as an application of the best interests of the child was when a particular child used racial slurs, and so they avoided placement of the child with someone of that race just for the safety of that individual child. That is so fundamentally different. Justice kagan. 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 prospective foster or adoptive parents for Services Based on Sexual Orientation unless an exception is granted by the commissioner in his or her sole discretion. So why isnt that exactly the kind of exemption that css wants here . And why doesnt its presence, you know, undermine this the the states purported interests . 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, because, with 3. 2 well, lets say that thats true, mr. Katyal, i mean, that no exemption has ever been granted under that provision. I mean, i read smith and lukumi to say that you you cant 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, that there is not neutrality here. Well, i disagree both on the law and then with respect to the facts. So, with respect to the law, your honor, smith doesnt say that the mere existence of a system triggers strict scrutiny. It says you cant give exemptions discriminatorily. So, if the city was exempting secular organizations from nondiscrimination rules but not religious ones, that would be what would trigger strict scrutiny. And we know this because smith said an acrosstheboard criminal prohibition is paradigmatic of something that is generally applicable, but thats also obviously the paradigmatic example of something with exemptions and broad discretion, as this courts opinions in armstrong and mccleskey recognize. And with respect to 3. 21, your honor, it does two basic things. First, it says that it bars fcas from rejecting a referral from dhs. And a referral can only be from dhs. And, indeed, their blue brief at page 13 admits that. And then the second thing it does is it says dhs can make an exception to that. It says, providers shall not reject a child unless an exception is granted by the commissioner. So thats about, like, if the child lives far away or Something Like that, were not going to force the fca to take it, but theres nothing about any sort of categorical or classified classification on race or gender or anything like that with respect to 3. 21. And it certainly hasnt happened in practice, which is actually, i think, the standard of smith. Thank you, mr. Katyal. Justice gorsuch. Good morning, counsel. 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 at the screening stage. As as i understand it, this case is about the screening stage, whether Catholic Services would be eligible to participate in a program at all. Is that correct . Well, when i say screening, i mean parent screening. Basically, css has said they will not permit lgbt couples to be part of their screening process. So, if youre a married gay couple, you cant the doors are closed to you, but not to a not to a heterosexual couple. And thats the stage of the process were currently dealing with, is that right . Exactly. All right. And at the screening stage, my understanding is from from your latest brief at least that the the fair practices ordinance forbids any exemptions at all. Is that right . Correct. And that so is been our policy. Then just to follow up on section 3. 21 at the at the matching stage, why is that legally irrelevant here . Well because its at a very different stage. And at least in the Government Contracting case, its not similar in the lukumi sense because the city is saying and i think it gets a lot of deference under umbehr, our City Interests are different. Were about trying to grow the number of maximum safe Foster Parents, and policies like this deter and block lgbt parents from coming in and send signals to lgbt youth. At the matching stage, of course, its first of all, youre complying with state law, so its a very different thing, the best interests of the child, but, second, thats a much more particularized inquiry. And, again, it applies evenhandedly. It just may be that 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 kavanagh. Good morning, mr. Katyal. I have kind of a Bigger Picture thought to express, and you can react as as you wish. It seems like this case requires us to think about the balance between two very important rights recognized by this court, the religious exercise and belief right, obviously, in the First Amendment, and the samesex marriage right, as recognized in obergefell. And it seems when those 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. Its a very 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 the one hand and given obergefell on the other. But, when i look at this case, thats not at all what happened here. It 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 stigmatic harm. I completely understand that, 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 obergefell and in masterpiece, explicitly promised that 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. So, justice kavanaugh, four things. First, we absolutely agree with you that these are feelings that warrant respect, and, you know, both of these rights are important, and we share that same spirit. Second, i dont think the framing of this as religion versus samesex equality is the right one. The way the city sees this is actually a case about religion versus religion because, if you accept what the what their argument is, then theyll allow you know, another another fca can say we wont allow baptists, we wont allow buddhists, or well only allow those things. And in that sense, religion will be pitted against religion. Foster care agencies will be balkanized. And this will be true not just in foster care but in any number of other areas in which the government contracts. Third, practically, i dont think you can look at this and just say, oh, this is a small, tiny accommodation, whats the harm in it, because any individual accommodation will look reasonable. The problem is, as chief justice burgers unanimous opinion in United States versus lee says, once you do it for one objector, the courts going to be stuck doing it for all. I mean, the accommodation there was a pittance. It was someone objecting to paying Social Security. But the court said income tax will be next, and you cant have a workable system, either for Social Security payments or now for fcas, with so many religious accommodations. And then, lastly, when you say the city was looking for a fight or something, we couldnt profoundly disagree more. We certainly didnt rush this case to the Supreme Court. Indeed, we won it in both courts below and the first one, after a threeday hearing looking at live testimony, looking at precisely the allegations you said about religious hostility, and all of those dissolved. And, indeed, i think just disparate. T. Justice barret thank you, mr. Chief justice. Good morning, mr. Katyal. I just want to be sure that im clear in thinking about this question of whether the city was functioning as a contractor or whether it was granting licenses. Is it possible for any entity to participate in the recruitment and certification of foster families without a contract from the city . Not with respect to this function, and so i think thats a very important point about what ms. Windham said. She kept on saying weve been doing this for two centuries, this. Private entities have never done this because whatever these entities 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 is to bring responsibility for those kids inside the government and not to leave it into the private hands. I mean, these are wards of the state, and the city has the highest interests in screening parents. So this isnt an example at all of something that could be described as a licensee function, because a licensee is someone, you know, when someones licensed, like to practice law or run a barber shop, theyre not carrying out the governments work, theyre performing their own work, a private profession, with the permission of the government. This is the opposite of that, justice barrett. This is about the citys own kids, and the citys interests here are at their zenith. Well, lets imagine that the state takes over all hospitals and says from now on, you know, we are going to be responsible for hospitals, but we will contract with private entities to actually run them. And so theres a Catholic Hospital and gets a contract with the city to run it. In fact, its a a Catholic Hospital thats in existence before the state adopts this policy. And its contract with the state provides that there are in the contract the state gives everyone is that you can get some exceptions for some medical procedures, but every hospital has to perform abortions. In that context, do we analyze this as a licensing question, or, given that the Catholic Hospital cant even enter the business without this contract, do you still say that this was the provision of a Contractual Service . So three things, your honor. First, this isnt just factually, this is not a monopolization case at all, contrary to what my friend says. After all, they still have 26 Million Dollars, the lions share of their foster care budget. So its not as if were occupying the field or something Something Like that. With respect to your hypothetical, i think there are two problems. One is i think the real thing that does the force in the hypothetical is the government somehow monopolizing a private care system, a Healthcare System or hospital system. That itself would raise any number of constitutional problems. And i think our intuition as to why that hypothetical sounds so horrible is because of that. Thats what does the work. And secondly a minute to wrap up, mr. Katyal. Thank you. Id say three things are notable. First, this case, i think, as Justice Scalia might say, comes as a wolf. Petitioners rule would enable an fca to exclude parents of any religion, from buddhist to baptist. And this court, because it cant secondguess the reasonableness of a belief, it opens the door to all sorts of claims, indeed, this very case, the clergy letter, and it radiates far beyond foster care to all government contracts in all 50 states. Second, the city would act the very same way if a secular fca discriminated, and the flip side is true too. The city contracts with bethany, which is open to samesex couples despite its religious opposition. And the city continues to contract with css to the tune of 26 million. These three indicia a uniform policy, continued contracting with bethany, and continued contracting with css itself are strong evidence the two courts below got it right. And, finally, my friends never overcome the twocourt rule on neutrality. After three days of live testimony, the trial court found the preponderance of evidence favored the city. For these reasons, we ask the unanimous judgment of the Third Circuit be affirmed. Thank you, counsel. Mr. Fisher. Mr. Chief justice, and may it please the court i think what makes this feel like a hard case is that css is doing valuable work, it is acting based on traditional religious beliefs, and it may appear that the costs of accommodating it would not be too high. But that overlooks two Serious Problems with csss claim. First, css is not acting in its private capacity but, rather, as a Government Contractor. Its claim, therefore, implicates the governments managerial interests, as well as the imperative that Governmental Services are made evenhandedly available to all citizens. And, second, free exercise claims cannot turn on judicial assessments of whether religious views are honorable or offensive. If the constitution requires an accommodation here, as mr. Katyal said, all manner of other allowances must be made for foster care and other service agencies. And because theres no constitutional difference between independent contractors and government employees, csss position would also imply, for example, that Police Officers could decline on religious grounds to enforce particular laws, Prison Guards could insist on evangelizing to inmates. The implications go on and on, but the upshot is this whatever rules might govern free exercise claims outside of Government Contracting, the citys antidiscrimination requirement is constitutional because it is a reasonable rule governing the selection of those who will care for children in the citys custody. Mr. Fisher, suppose that the city of philadelphia decides that 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 church the churchs belief in that respect. Are they free to do that . I think there would be two big differences between that and this case, mr. Chief justice. Number one, as the court recognized in hosannatabor and the like, clergy members of the church and the way that they are structured within the church raise establishment clause questions and free exercise questions that are entirely different from a Government Contracting scenario like this on on their own terms. And, 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 relate, the way it would the way it would relate is the same way that the the samesex ban because of of the churchs view on it, 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 of gender. No, i think that the the stigma and the harm that the citys 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 its own internal operations, as my 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 interests, best interests, of the child . Well, i think just to be , precise, Justice Thomas, the state law best interests of the child test applies only at the placement stage. Thats unique to the placement stage. I think what mr. Katyal was saying is, of course, the city and the state are going to establish rules for certification for family certification at the outset in the you know, in the general interests of children. But, specifically speaking, the best interests of the child test comes into matching and and, just as under federal law and under other state laws, applies so on what excuse me, im sorry to interrupt you. Its just we were short on time, but so what would be the standard . Why the assessment of the family then if its if if you say statutorily its only the placement thats in the best interests 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. And so the city is establishing criteria that are for that are going to govern which people are allowed to undertake that, and those criteria no, i mean, generally, what are you looking for . Youre looking for people that can provide care and loving environments and Safe Environments to kids isnt that ultimately just for the best interests of the child . I think thats one way to think about it, Justice Thomas, which is why i think mr. Katyal answered your question that way. Im just trying to be precise about the way the law works here, which is that the standards for certification are laid out in pennsylvania code section 3700. 64. And the best interests of the child standard is not present there. Its simply a list of secular criteria that the agencies are being asked to apply. Thank you. Justice breyer. In general, what have you thought should be the right rule . I mean, 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 exceptions every which way for all kind of reasons, sincerely too. If you win, its pretty hard to see how, for example, a a religious group that wants to meet on sunday, the only place to hold services, but there is a there are a no parking sign, and they cant do it. I mean, they cant even hold religious services. And and we could think of lots of examples, like abortion and so forth. And that, i think, is what led Justice Scalia to that more absolute rule. He couldnt figure out another one. So have you anything there that you can suggest . But after all, rfra is one way, but rfra they can change, congress, if we make a mistake. The constitution you really cant. Thats why i asked the question just to see whats in your mind. Right, Justice Breyer. I think that Justice Scalia, for the reasons he laid out in smith itself and in the city of boerne concurrence, reached a quite reasonable conclusion that is right on its own terms and entitled to stare decisis effects. But the most important thing i would tell you here is that you dont even have to ask that question. The court recognized before smith itself, in cases like lyng and roy, that when were dealing with internal affairs of the government and its own operations, that a simple a different test applies. And the test that i would say governs this case, which is really quite narrow in this sense because its a Government Contracting case, is the test the court made laid out in nasa versus nelson, where the court asked whether it was a reasonable rule that the government was insisting for its contractors. And, actually, the court in that case used the phrase internal operations. So all you have to do is put nelson together with lyng and roy, which tell you that the free exercise clause allows the government the same power when it deals with its 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 a 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 here, it wouldnt be any different than lyng, where the government owned the land. It wouldnt be any different from nasa versus nelson, where the government was the only way to work in the space program. And the government, as Justice Kagan said earlier, can take over certain operations. Indeed, the city, as Justice Sotomayor said, could do the certification itself. But also i want to answer, Justice Alito, in terms of the history, and i want to echo what my friend, mr. Katyal, said, which is that, yes, the same term, foster care, is used that was used historically, but its a completely Different Program now because the children are in city custody and were talking about selecting people well, government has has expanded at all levels, and it has taken over more and more programs that were previously conducted by by private entities. What what if the government took over all provision of assistance 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 the government could take over Something Like homeless shelters in a in a given county or a community. I dont think theres any way to draw a line between what the government can and cant take over. Well, what about justice what about justice barretts example of a hospital . What if the if the 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 healthcare is such a uniquely complicated context. And i think that even in systems where the government does take over healthcare, private options are still available. So its hard for me to understand, you know, exactly how a hypothetical along those lines would play out. Well, youre just disagreeing with the hypothetical. I dont think its hard to imagine at all. But, if you accept the hypothetical, then whats the answer . Whats the answer to whether to what . Im sorry. Would your answer be the same, that 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 thered be very different questions raised about medical procedures and doctors that that certainly have the opportunity to decide which kind of procedures theyre going to carry out. I think, if this were the federal government, which i take is what your hypothetical is raising, youd also have any number of rfra implications that would have to be layered on to a question like that. Justice sotomayor. Mr. Fisher, perhaps we should talk about the function, because there is an amicus brief that suggests that in normal contractor cases, the rutherford brief, that in normal contractor cases, you apply a rationale basis, but where the government has taken over a field, it should be strict scrutiny. And this goes back to justice barretts earlier question about 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 that in the in the states custody are those that have been essentially abandoned or taken away from their parents, correct . I think in general terms its correct, Justice Sotomayor, that that theres on the one hand foster Care Certification services for children in the citys custody, which is something that you can do only through a contract with the city under the terms were discussing here. And there are other things that, as mr. Katyal noted, with the Foster Care Program that css is allowed to do, and there are other private things that css can do without even contracting with the city related to adoption and other ways to care for needy children. There is no occupying a 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 but the thing i would want to make sure i stress, Justice Sotomayor, is that even if the other side were right that the city, however you would want to look at this, has occupied the field of parental certifications, it would make it no different than lyng. It would make it no different than nelson. It would make it no different than garcetti, where the government occupies the field of prosecutions. The government occupies the field of law enforcement. There are lots of places where the government has reasonably made the determination to carry out a Certain Service and is allowed to establish, as nelson put it, reasonable rules to carry out that service. I have one last question. If one 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 would be where Justice Breyer started earlier today with the citys concession at pages 45 and 46 of its brief that if what css is concerned about is a perception that 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 theyre not purporting to speak for themselves in any certifications. Justice kagan. Mr. Fisher, the solicitor generals main argument here is that the city has undermined its asserted interests in nondiscrimination by having a series of other exemptions to the one thats at issue to the one that other exemptions that similar to what css wants. And i talked with mr. Katyal about 3. 21. The solicitor general also references various policies that have to do with placing children, consideration of race and disability at that stage. So i was wondering if you could explain to me why those are permissible, but but the city should not be able to give an exemption to css . Of course, Justice Kagan. Let me say one thing about the law and then give you a broadstroke answer and any specifics im happy to answer. First, the solicitor general, i think, somewhat strangely tried to put entirely aside the contracting context of this case in asking these questions about general applicability. As the court said in umbehr, the court has to give reasonable deference to governments assessment of its own interests in the contracting space. So even in this general applicability context, Justice Kagan, i want to stress that the government contexting im sorry, the Government Contracting context is highly relevant to this comparability inquiry that is required. And i dont think the solicitor general even denied that. And ill just say in Broad Strokes the purported exemptions that the other side points to when it comes to the certification process simply do not exist. The closest theyve come is to talk about disability being taken into account, but its not disability thats taken into account. Its just the criteria that i discussed with Justice Thomas that are neutral and secular as to the ability to care for a child to which disability is sometimes relevant. That leaves child placement. And in child placement, its just a different set of rules that apply because thats a different stage of the process. And so the key answer there is that the city has reasonably concluded that thats just not a comparable setting because the best interests of the child in matching somebody on an individualized basis kicks in. And thats not the scenario at the certification stage, where all were asking is whether somebody can care for children. And back to the question about a compromise, css has not disputed that samesex couples are equally able to care for children. And so we think the placement scenario is just entirely different. Thank you, mr. Fisher. Justice gorsuch. Id like you to expand on that just a little bit further, mr. Fisher. One of the challenges of smith, of course, is asking whether theres an exception, and that raises all sorts of questions about at what level of generality should we look and whats comparable enough. Why isnt the 3. 21 matching process in that contract process sufficiently like the screening process that we should consider it . Justice gorsuch, i think for two reasons that id stress. One is, as i understand section 3. 21, it applies to referrals from dhs. That is not the certification process. That is the matching process or similar situations. And so the same answer that i just gave to Justice Kagan im sorry to interrupt, but ill i accept the legal point that theyre different stages in the process, formally speaking, legally. But why why why shouldnt we take cognizance of it when were doing the smith analysis . Well, let me answer it this way then. Smith did not say the mere availability in the air of individualized treatment is enough to make it not a generally applicable law because, as mr. Katyal said, then the criminal law itself would not be a neutral, generally applicable law. You have to have some disparate treatment of religious reasons versus secular reasons. Thats what Justice Alito said in the fraternal order of Police Opinion the solicitor general relies on, that its not okay to let people wear beards for medical reasons but not for religious reasons. And so, as the as the volokh brief also described, its not just whether in the air theres a possibility for exceptions or different differential treatment. Its whether youve actually had such treatment, because otherwise you just simply dont have a workable system of law. Thank you. Justice kavanagh. 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 all the amicus briefs, which have all been very valuable in thinking through these issues. Just a couple questions to just confirm a couple 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 same samesex couple has ever gone to css and, if they did, that they would be referred to one of those 30 agencies . Do you disagree with any of that . Justice kavanaugh, no, i dont as a factual matter, but remember that a samesex couple was turned away from bethany. And the and the caution i would give you to rely too heavily on this 30agency idea is that, remember, we dont know how many agencies will discriminate against people based on Sexual Orientation, religion, or other characteristics if the city is required to grant exemptions. And i dont think the court wants to go down a road of having to count up how many agencies at the end of the day are discriminating on what basis. As you yourself asked, what if there were Just One Agency . What if there were two or three or five . I think thats a really difficult area for the court to have to get into. I agree to that, but, arguably, the other the response to that might be we shouldnt be looking for problems before we confront them. Fair enough, justice kavanaugh, but remember you dont even get to this set of questions because this is a Government Contracting case. And as the court said in nelson, you just ask whether the governments position here is reasonable. And the government has two eminently reasonable interests its seeking to vindicate here. One is to treat all citizens equally when people are carrying out the governments own programs and not to balkanize its services. And, secondly, the government just has a managerial interest. As i was just describing, if you have to start granting exemptions, all of a sudden running a program through the government gets very, very hard, even to the point where the city might just say, the heck with it, were going to take this inhouse and do it ourselves. And i dont think anybody disputes that the city could do that. And once youve admitted the city could just do these certifications itself, it seems very odd to conclude that css is entitled to insist on own rules when its carrying them out on the citys behalf. Thank you. Justice barrett. Good morning, mr. Fisher. I have a question about something that some of the amicus briefs brought up, which is this thirdparty harm principle, the principle that religious beliefs can never give a believer the right to harm a thirdparty even slightly. Im wondering if you agree with that and, if so, if you could tell me where in law the principle comes from. Justice barrett, im not sure that thats true as a categorical rule. I think that, as some of the questions have pointed out this morning, when you get into situations like this, you need to balance the free exercise interests on the one hand against whatever the governmental interests are on the other at least in the abstract. So i think that, as i was just saying to justice kavanaugh, you dont get to a balance of the harms in this particular case because its a Government Contracting case, and all you ask under nelson is whether the governments rule is reasonable. But even if you did get to that and even if it were relevant whether there were thirdparty harms, as i was just describing, we would say there are serious governmental harms and there are also private harms. Weve talked about people being turned away in philadelphia, and the amicus briefs tell you theyre turned away elsewhere. But, remember, theres also a deterrent effect. If people are aware that the Government Program allows discrimination, they may never enter the pool in the first place. Theres no brochure that tells people, you know, this agency prefers people of this of your kind and these other agencies prefer people of the other kind. And, frankly, if there were a brochure in that respect, it would just make it all the worse. I want to sneak in other question. I think we would agree that theres really not any circumstance we can think of in which Racial Discrimination would be permitted as a religious exemption. Can you think of any example in which saying, as, you know, css has done here, that they, you know, will not certify samesex couples, that where an objection to samesex marriage would justify an exemption . Or is it like Racial Discrimination . Well, justice barrett, i think, for purposes of your analysis here, it is like race discrimination. I understand that race is special in many ways in the courts jurisprudence. But, as Justice Gorsuch stressed in masterpiece cakeshop, it is the proudest boast of free exercise jurisprudence that we do not judge the legitimacy or the offensiveness of religious beliefs if they are deeply felt, which, as we know from the bob jones case, for example, some religious organizations do have deeply felt views about interracial marriage. I think the court would have to accept them. Then the only question would be whether the compelling interest test applies differently in that scenario, and i 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, in jaycees, the court said sex discrimination, as we know from last term in bostock, this could be thought of as sex discrimination. And so i just dont think you could draw a line in this context between Sexual Orientation a minute to wrap up, mr. Fisher. Thank you, mr. Chief justice. I think i would just leave you with the with the last a couple of the last points i was making, which is i dont think anybody can dispute that if the city wanted to do this work itself, it could. And so the only question that you have is whether the analysis is any different because the city is operating through an independent contractor. And cases like nelson and lyng tell you the answer is no. Also rust v. Sullivan, a case we havent yet discussed today, tells you the answer is no. And so that just leaves the arguments the solicitor general is making about neutrality and the like. And i think the irreducible fact in that respect is that the city here would not allow race discrimination im sorry, would not allow this discrimination for any reason. The District Court found this at page 85a to 88a. I dont think anybody really thinks that this kind of activity would have been allowed in 2018 or Going Forward for any provider for any reason. And for that reason, we think that 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 its not required to give special privileges here. Thank you, counsel. Three minutes for rebuttal, ms. Windham. Three quick points. First, the discussion this morning has confirmed that philadelphia does not have a neutral and generally applicable law. They have waivers and exemptions. They let agencies consider factors that are prohibited under the fair practices ordinance, and they dont follow that ordinance themselves. Philadelphia now admits its applying 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, respondents ignore the long history of Catholic Social Services doing the work it does today, partnering with Foster Parents to provide children with a family, walking with and supporting those families through a yearslong and difficult process. This is the ministry that the city of philadelphia is trying to extinguish. The fact that css carries out other ministries and provides services at a loss, subsidizing the city, does not change the fact that the city is trying to extinguish this ministry. And it has done so in the most restrictive manner, sending the message that Sharonell Fulton must be excluded because she partners with an agency who shares her faith. Respondents urge the court to decide some other case, not this case. They claim all kinds of harms. But religious foster agencies continue to serve in most states, and multiple states have even protected those agencies by law without negative results. Longstanding protections like rfras protect religious exercise and, yes, even Government Contractors. Yet, respondents cannot identify where their parade of horribles has come to pass. Finally, none of this was necessary. It all could have been avoided by a properly functioning free exercise clause. The courts are struggling to parse the exact contours of general applicability, while loving foster families remain excluded. The text, history, and traditions of the free exercise clause teach that when the government wants to prohibit a longstanding religious exercise, it needs a compelling reason to do so. Thats a straightforward approach, and philadelphia cant hope to pass it here. In our Pluralistic Society, this court has repeatedly said that there should be room for those with different views. But smiths narrow view of the free exercise clause stands in the way of that sensible result. Under smith, particularly as applied by the courts below, government officials have no incentive to reach sensible accommodations, knowing they will be shielded by the flimsiest claim to have a generally applicable law. Our Pluralistic Society is at its best when it has a free exercise clause that protects free exercise, not just of those who agree with the officials in charge. Thank you. Thank you, council. The case is submitted. Court hears oral arguments on the Affordable Care act in the consolidated cases of texas three california and california be texas on tuesday at 10 00 a. M. Eastern. The Health Care Law was challenged by texas after a tax law eliminated the penalty for not having health care insurance. Oral arguments at 10 00 eastern on cspan come on demand at cspan. Org Supreme Court or on the cspan radio app. Later on friday night, joe from addresses the nation his Campaign Headquarters in wilmington, delaware. He talked about his plans for the country including his calls for the nation to come together