Fulton versus city of philadelphia. Ms. Windham. Mr. Chief justice and may it please theourt, the court below made a simple error. They failed to understand where emplment division versus sth controls and where it doesnt. Ith doesnt control when the government uses the system of individualized exemptions. Orem when it makes other exceptions that underminets rules or when it changes the rules to phibit a religious practice. Philadelphia made all threefe those errors here and the city still cant identify a neutral genelly applicable law even ter six attempts and in our knowledge is its decisions are subjective and individualized. The courts belowtill apply to smith and even said smith would be a dea letter if petitioners prevailed a that demonstrates the confusion and instability smith has csed. Respondents rather than defendansmith asked the court for a newly minted nstitutional standard that is even less protective of religious exercise and that approa has no basis in the text, history or traditions of the freexercise clause. The city has no compelling reason for excluding Catholic Social Services which is exercise his faith by serving atrisk children in philadelphia for two centuries. Does it have any interest in refusingo allow the agency to st aside and provide referrals elsewhere. Philadelphias refusing to place children of a loving mother like tony and cheryl just because they chose to partner with an ancy who shares their faith. Respondents act as if this is a zerosum game, either lgbt coppers can foster or fulton and cns can. But the law and deces of experice say otherwise. The free exercise clause is at the heart of our Pluralistic Society and protect petitioners vital work for the philadelphia community. I welcome the courts questions. Ms. Windham, this is a case involving free exercise rights but it is in tension with another set of rights, those recognized in our decision and whatever you think or however you think that attention should be resolved as a member or matter of government relation, shouldnt the city get to strike a 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 analysis should control here for a couple of different reasons. This courts precedents made clear that when the government is acting as sovereign, using his ring the tory Authority Like when its applyin a citywide fair practices ordinance or the ordinance then the crt does the normal free exercise clause analysis. The same thing is true when the city is deciding at the outset who is able to participate in a programm. So you dont see any difference in terms of the analysis whether it is simply a regulation in the city issuing a rule of government across the board as opposed to part of the rules participating in a program, in other words, not in cathe sovereign capacity but ina managerial capacity or, you know, businessapacity. The city isnt acting in one of those capacities here and i think a key factor is the fact that they are relying on the fair practices ordinance and the fact they but do you think there are different rules in those two different contexts . Mr. Chief justice, if you had a situation which is unlike licensing and unlike Trinity Lutheran or espinoza when the government is managing internal affairs and the governments interest may be stronger but here in philadehia has said e css is an independent contractor and is not an employee or agent of the city. 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 the chief said regulatory or licensing and in that instance when you have both aspects of that do we analyze it as a government contract and again referri back to the chees point or as the sort of Licensure Program where the city has basically taken over an area and now it has certain requirements of the regulated industry. Justice thomas, as your honor acknowledged there at the end the city is trying to regulate an area that is historicay been an area of religious practice and that sets this case apart from any cases in the city is citing. Its correct or using revelatory authority and using Sovereign Authority and using Licensing Authority to decide who gets to participate in those t caseshere the courtsar precedents has said you do the normal constitutional analysis and there is not some special rule. Here both the oldontracts and the new conacts say we are not an or agent of the city in the same analysis should apply here as it did in the kumi and espinoza and Trinity Lutheran. This is different from a case like say, bowen where you are trying to reach out as a third party until the city how to run its internal affairs here the city is reaching out and telling a private religious ministry which is a doing this work for twoenturies how to run its iernal affairs. They are trying to corset to make statements that are contrary to its religious beliefs as a condition of coinuing to participate the religious exercise that they have carried out in philadelphia for two centuries. Thank you. Justice breyer. Thank you. On pages 45 and 46 of the citys brief they say that they arent requiring you to endure same sex marriage but they are saying all they are asking you to do is evaluate a couple without reference to whether they are same sex or not. You read that. It says your objection is to being required to evaluate and provide written endorsements of the same sex relationship but they arent saying to do that. Indeed, they say add something onto any response you make and say that you do not endorse same sex marriages. Say it. You see what it says. So save porges 45 and 46 were written right into your contract allowing you to say whatever you want about same sex but all they want you to do is evaluate this couple irrespective of same or different sex. What is your religious objection to that . Justice breyer, i will point your honor to the joint appendix 210211, 237 for that very question was asked a head of Catholic Social Services testified that sir finding a home of the same sex couple would be in violation of that religious belief. A home study is essentially validation of the relationships in the home and that a final hometudy includes a written dorsement of the relevant relationships for the Foster Parent. The state law as well asks an ency to assess the ability of applicants for approval of the Foster Parents. With the city is asking css to do here is to certify validate and make stements that cannot make you not are of any case where this crt has said its okay to compel speech or coerce religious exercise as long as you can t a disclaimer onto the end of it. Responde certainly havent cited to any. It wld be hurtful for css and r the couple if any couple ever approached them for them to go into their home, assess their relationships, interviewhem about their intimate relationshipand their family and then at the endndin of thate to say we canno provide that approvalor you and your family. Css is making a modest request here. It is to stepside and be able to allow diverse religious agencies to sve the fit city of philadelpa asci they have done successfully for many yea years. What you dont have to say according to them was whether the couple is married, whether it is not married, whether it is same sex, whether its a different sex but you just took that to the side making note that youre putting it to the side and say other than that they are okay or not okay. Thats all you have to do. Now, what is the problem and i still dont quite see it. He said in response that you dont want to do it which i understand that you dont but they say they are imposing the requirement that does not interfere with your and they cant figure out how it interferes. And so, we write 45, 46 right into your contracts, word for word and now tell me once again what is the problem . In her last answer you just said they cant make you say anything and i guess that is true but we write 45, 46 and say you can Say Something if you want or dont have to if you dont want to but just take samesex, different and put it to the site and say other than that are they qualified. They are still being asked to do evaluate, assess and approve of a couple under state law and in their own written report and that is something they can testify that they cannot do. This is also not an unknown or usual religious belief. Eleven states have passed laws to specifically protect religious Child Welfare providers in this context as the usc made brief points out there is an Agency Closure across the country over this very issue int what we are asking here. Justice alito . Let me ask you a couple of questions about what is in the record of this case and about the facts of the case. Again, as far as the record asreflects how many same sex couples in philadelphia have been denied the opportunity to be Foster Parents as a result of Catholic Social Services policy . Zero. In fact, Justice Alito non had even approached cholic social services asking for this approval and endorsement. Before the events at issue now, how many children had been placed or were in homes that had been evaluated by Catholic Social Services . At the tim of the referral freeze there were wellze over 10 children who are currently being served and over the years there have 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 o philadelphia at the time when they rose intake for css there were 250 children who were in group homes who need to be moved out of those homes and into family homes and this is in the best interest ofhe children and obligation under state law but commissioner figueroa page 5253 of the ja acknowledged that those children were still in group hos and children wereot going to be moved into homes they are supported by Catholic Social Services. One of your main arguments concerns a the fact that there are exemptions to the generally applicable rules under the citys policy and im somewhat uncertain about what the citys final position is about and the availability of the exceptions of what was youunderstanding of that . Justice alito i understand there are individualized exemptions for provision threepoint to one of the contract and the waiver Exemption Committee that they are categorical exemptions whenever an agency cducts a mestudy they have to consider disability, marital status and familial status and that is prohibited by the cities fair practices ordinance. Those are the city itself actually deviates from the fair practices ordinance even though it is bound by it when it is making placement decisions inug foster care. Today to make the exemptions at the initial stage or only at the place of placement stage . Justice alito, the cities exemptions are the cities stage but those 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 here and ofourse, the waiver Exemption Committee could in theory give tm at any stage. Thank you. Justice sotomayor. Counsel, im interested in why you see yourself as a licensed see as opposed to a Government Contractor . I understand that many governments throughout the country do these home assessments and certifications internally and they hire employees within the government and they set up criteria and they are the ones who choose w o certify a family or not. Why arent you any dferent than a Government Contractor . What license are you receiving . Ive never heard of a license where they pay you to take the license. 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 that is no different than deciding setting forth criteria to hire someone to do work for you. Its a lovely argument but im having a very hard time accepting when the city sets w forth a set of criteria only these people can do this work for me, thats not a license but an employment contract. In the city of is an employment contract. Css is not a employee or agent. Philadelphia orphans vania has chosen to partner with that private agencies to do its work. Bute 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 thingsor the governmente wher we said the government could set the criteria it wants. Why are y anyt different . With the city is trying to do here is tell religious groups that have been doing this prior to when the city got involved we will exclude you a you can no longer carry out this work unless you take actions that are contrary to your faith. That is something the free excise clause prohibits and that is what philadelphias attempting to do here. Philadelphia and the respondents position here is a dangerous one becauswe are saying or ty are saying even if youre not the employee or agent and that counsel, im sorry but counsel, i dont have much time but just one last question. What is dangerous is the idea that a contractor with a religis belief could come in and say exclude other religions from being families certifying families, excluding someone with a disability. How do we avoid that or exclude interracial couples . Justice sotomayor, the city allowed agencies to exclude people with disabilities today and that is one of the texceptions that they have from their but they require an agency to be specialized in that placement if the agency gets t the specialization, it can become one. They agency actually can include parents on the basis of disabilities on providing Foster Parents. 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 have or to be married even, same sex or not. That is different than placing a child which is governed by the best interest of the child spirit briefly counsel. Justice sotomayor, the state law does take into account visibility including mental and emotional stability. Thank you, counsel for Justice Kagan spirit good morning, ms. Windham. Id like to take you back to the chief justices opening questions and give you a hypothetical. Suppose that there is a state in it doesnt want to operate its prisons itself so it contracts with private organizations to do so and in the contract there isa a provision that says that no employee can use drugs of any kind. A group says that it wants to operate a prison says it wants an exemption for coyote use. What would be the result in that case . Justice kagan, to know the results in that case first of all we would have to know whether the governments rule there are neutral and generally applicable. I believe the free exercise analysis would apply. You know, i got the question im trying to get at is here is the government in its capacity as a contractor saying something, a condition that is extremely relevant to the contract in its view and shouldnt the government have leeway to do that and to just say you know, it doesnt matter why you want to use [inaudible] whether religious or anything else but we will just say there should be no peyote use or other drug use. Justice kagan, i think the state would be likely to prevail in that caseor a couple of reasons. One is unlike here thehe governments interest are going to be a lot stronger. The government there is taking something that is t traditionaly a Public Function in handing it out to private organizations. Thatspposed to here as taking moving in anncreasingly regulating and restricting work that is traditionally been private. But there are a lot of things that governments do to put another question on the table iod there are a lot of things that governments do now that traditionally were done by private organizations, religious organizations and you could go through, you know, youth homes are homeless shelters and lots of old philanthropy is now regulated and conducted by the government so why should at matter . Spirit Justice Kagan, that points up the question in this case does the free exercise clause shrink every time the government expands its reach and begins to regulate work that is historically and traditionally. Een done by religious groups to have a different argument if a religious group that had never engaged in this kind of activity said now we want to, with that make a difference to you . Justice kagan, i think it t would make a difference. I think the history here is important. When you look at the governments interest in the case that would be relevanto. Re is the city call css a point of light in a softe care system and it is demonstrated ththrough the years tt it can do this work successfully for the children of philadelphia would note detriment to the lgbtq philadelphia population. Justice gorsuch. The morning, counsel. What we do with the fact of the city seems to be representing to us here and now that the fair practice ordinance is binding on its own force and the department cat offer any exemptions . Spirit justice gorsuch, i believe thats an important fact here because if we will take the city at his word and they are what it means is we stepped out of the contracting context now and we are firmly in the regulating context. With the city is saying to Catholic Social Services is that it is illegal for you to do this work in the city of philadelphia according to your religious exercise whether you contract with the government or not. And how does philadelphia and its written documents with the Catholic Social Services tread . Is it an employee or agent . The city is qui clear ja 634 and css as an independent co