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THREAD: Set aside the election for a moment. This morning, SCOTUS is hearing arguments in a case about a Catholic foster care agency in Philly that insists it should be able to discriminate against same-sex couples. Here's a gallimaufry of thoughts based on my past reporting. 1/x
Catholic Social Services is suing the city of Philadelphia, arguing it should be able to violate city nondiscrimination law — and its own contract agreeing to comply with that city law — to refuse to place foster kids with same-sex couples because of its religious beliefs. 2/x
The whole situation arose because of journalism! The Philly Inquirer and Daily News did an investigation identifying city-funded agencies that refused to work with LGBTQ people or same-sex couples. That report prompted Philly to ask, "What's going on here?" 3/x
You'll hear conservatives claim there was no specific incident of discrimination. Irrelevant. It happened like this:
Philly: Do you discriminate?
CSS: Yes.
Philly: You can't.
CSS: We do.
Philly: Your contract's over.
CSS: We're suing.
Not a very complicated situation. 4/x
Philly: Do you discriminate?
CSS: Yes.
Philly: You can't.
CSS: We do.
Philly: Your contract's over.
CSS: We're suing.
Not a very complicated situation. 4/x
The stakes of this case are massive. What's happening is nothing short of an organization saying it should get to totally ignore a law because of its religious beliefs. The implications of the Supreme Court agreeing extend far beyond hurting LGBTQ rights. 5/x
One of CSS's primary arguments is that Philly's LGBTQ-inclusive law unfairly targets their religious beliefs. We literally know this isn't true, because the city also responded to another *non-Catholic* agency that was engaging in the same kind of discrimination. 6/x
When Philly told Bethany Christian Services it also needed to comply with the LGBTQ nondiscrimination law, it simply complied. It got to keep its contract and life went on. It was only CSS that sued, and they're now trying to overturn a very important SCOTUS precedent. 7/x
The case Employment Division v. Smith, an opinion written by Justice Scalia, found that the government cannot target religious belief, but established that it can pass laws that apply equally to all people regardless of their beliefs or lack thereof. 8/x
So imagine a law banning FGM, as many states have passed. Its goal is to prohibit all FGM, regardless of the motivation. Now imagine an orthodox Muslim group saying they were unfairly targeted by the law. No, the goal is to prohibit all FGM, not to target one religion. 9/x
Philly's Fair Practices Ordinance similarly is designed to prohibit *all discrimination.* So CSS is arguing that just because it *wants* to discriminate, it should get to contract with the city and blatantly violate the law. It's not hard to imagine disturbing consequences. 10/x
It's worth noting that CSS's contract with Philly specifically identified it as a public accommodation responsible with complying with the Fair Practices Ordinance, so don't be swayed by its claims that the law doesn't apply for other reasons. 11/x
I think that speaks to the open-and-shut nature of the case and the ghastly precedent it could create to let people just ignore whatever law they wanted for religious reasons, but let's also quickly discuss what you'll hear about the impact on kids. 12/x
As has already appeared in the mentions of this thread, you'll hear arguments that children and families suffer if Catholic agencies aren't part of the adoption and foster care systems. These claims are simply not true and there's plenty of evidence to demonstrate why. 13/x
Over the course of the past 20 years, various Catholic agencies have *threatened* to end their child placement services in response to marriage equality and even civil unions. In many cases they've followed through. And nothing's happened. 14/x
The first such situation was with Catholic Charities of Boston after Massachusetts first passed marriage equality. Did the children suffer after it shut itself down? Nope. They were just placed with other agencies and EVERYTHING WAS FINE: https://balkin.blogspot.com/2020/10/does-harm-result-when-religious.html 15/x
The same has basically been true everywhere else, including in this very case. Philly's Department of Human Services provided evidence that closing CSS "has had little or no effect on the operation of Philadelphia’s foster care system." 16/x
As an aside, how little do these Catholic agencies care about children if serving same-sex couples is the dealbreaker? It was particularly telling when they used this threat against a civil unions bill in Colorado even when they were exempted! It's politics, not charity. 17/x
But let's be clear that allowing discrimination IS harmful to kids and families. We know LGBTQ kids are significantly overrepresented among homeless youth. They need accepting homes, not homes that have specifically sought out the right to discriminate against them. 18/x
And it should go without saying, but discrimination against same-sex couples obviously hurts THEIR FAMILIES. It's taxpayer funds they pay into going to services they are prohibited from accessing. There is no justification for the law to subsidize this discrimination. 19/x
Another interesting claim you'll hear is that without agencies that are religiously affiliated, fewer parents will seek to become parents. So what is their motivation? Should we really be rewarding them for wanting to indoctrinate kids with discriminatory ideas? No. 20/x
If there are parents out there whose willingness to care for children in need is dependent on their ability to work with a discriminatory agency, I have a lot of other questions about their capacity to be loving and caring parents. 21/x
Lastly, a personal note. I'm an adoptee. I know the difference that loving parents can make for a child who needs a home. We all want as much support for adoption and foster care services as possible. That means serving more families, not fewer for discriminatory purposes. 22/x
Oral arguments are under way. Let's listen in: https://www.c-span.org/video/?471183-1/fulton-v-city-philadelphia-oral-argument
Thanks for following along to my thread about this very important case. 23/23
Thanks for following along to my thread about this very important case. 23/23
Oh, and for the arguments themselves, follow these two brilliant folks' threads already underway:
Josh Block: https://twitter.com/JoshABlock/status/1323999551666167808
Chase Strangio: https://twitter.com/chasestrangio/status/1324003015771279360
Josh Block: https://twitter.com/JoshABlock/status/1323999551666167808
Chase Strangio: https://twitter.com/chasestrangio/status/1324003015771279360
Kavanaugh seems very sympathetic to CSS, pointing out that it refers same-sex couples to other agencies. IT IS A BURDEN ON SAME-SEX COUPLES TO BE REFUSED SERVICE!
"Our lunch counter won't serve you, but the one down the street will," is not a justification for discrimination.
"Our lunch counter won't serve you, but the one down the street will," is not a justification for discrimination.
Interesting question from Barrett about whether an exemption would have to apply to refusals of interracial couples.
Becket's lawyer toed the familiar conservative line that we know racism is bad but anti-gay discrimination is fine.
Becket's lawyer toed the familiar conservative line that we know racism is bad but anti-gay discrimination is fine.
If the Supreme Court decides that preventing discrimination is no longer a rational basis for nondiscrimination laws, our nation's civil rights laws will quickly fall apart. https://twitter.com/JoshABlock/status/1324011444707405825
Yes, yes, yes! Justice Breyer corners the SG attorney by asking: Aren't you basically asking us to write a decision that preventing discrimination based on race enjoys different constitutional protection than gender and other categories?
Sotomayor follows up: We protect race not because race is special, but because discrimination hurts the target of that mistreatment.
Exactly. Discrimination is discrimination. Conservatives' argument that racial discrimination is different is vacuous.
Exactly. Discrimination is discrimination. Conservatives' argument that racial discrimination is different is vacuous.
We're hearing again the argument that CSS didn't directly discriminate against same-sex couples. Putting a sign in your window announcing you don't serve same-sex couples is no different from an actual refusal.
Kagan also bringing it home: If it's a compelling interest to protect against discrimination based on race but not sexual orientation, where does gender fall on this scale you're using?
Lawyer *refusing* to answer whether there's an interest to protect SO.
Lawyer *refusing* to answer whether there's an interest to protect SO.
Important point from Chase here I didn't mention earlier. CSS admitted it would discriminate in two different ways. Besides placement of children, it also refused to CERTIFY same-sex couples to *be* foster care parents. (1/2) https://twitter.com/chasestrangio/status/1324015790014816256
This is important because they're arguing that since race and disability can be considered in a foster care placement, there's nothing wrong with considering sexual orientation as well. But those exemptions don't apply to which families can be certified. (2/2)
This is what it boils down to. We're literally hearing justices seem to admit that discrimination itself is not worthy of protection. We heard this about cake bakers in Masterpiece Cakeshop, and now we hear it about foster care. What about lunch counters? https://twitter.com/mjs_DC/status/1324015966888599553
Chief Justice Roberts now trying to conflate the "matching" of foster children with families with the decision of which families to serve in the first place. It's an incredibly disingenuous framing of what's actually happening here.
Thomas: Don't you think it's in the best interest of the child to have a pool of parents that's beneficial to the child?
All of those CSS parents can use the other services, you dolt!
As the city's lawyer points out, there are many LGBTQ children in need of protection.
All of those CSS parents can use the other services, you dolt!
As the city's lawyer points out, there are many LGBTQ children in need of protection.
The city's lawyer making the case simply: CSS entered into the contract then openly flaunted its terms. The city has no obligation to continue the contract as such.
Justice Alito is determined to frame this as Philadelphia discriminating against a Catholic agency for its "old-fashioned" view of the family. He similarly thinks referral is sufficient, with no acknowledgement of the harm that happens when service is refused.
Justice Alito also claims that this will result in children not being placed with foster homes, which is 100% false. The children's cases simply move to other agencies and placements continue. Alito's outright lying about the stakes of the case.
Sotomayor immediately follows up by asking if fewer children had been placed. Katyal points out that of course not, and in fact, when nondiscrimination protections are in place, MORE kids end up getting placed. Ruling out discriminatory agencies HELPS the kids (because duh).
Given his ruling in Bostock, I'm oddly comforted by the simplicity of Gorsuch's questions this morning? https://twitter.com/chasestrangio/status/1324022356218646528
Kavanaugh claims Philadelphia was "looking for a fight." No, Philadelphia was looking to make sure its contracts were being honored. That's why when Bethany Christian Services agreed to serve same-sex couples, their contract was reinstated. Pure lies here by Kavanaugh.
Barrett asks whether Philly was engaging with contracting or licensing in its relationship with CSS. Katyal points out that this isn't about licensing at all, but the city's own kids being placed in loving homes.
Pretty wild hypothetical from Barrett about if the government took over all hospitals and then required them all to provide abortions. Katyal puts out this is not a monopolization of services.
Important final points from Katyal, which is that Philly would act the same way if a secular agency refused to serve same-sex couples. He also notes that continuing to work with Bethany Christian Services demonstrates there's no double standard that unfairly targets CSS.
Last up is Jeff Fisher, who represents two great orgs that support LGBTQ families. Check them out here:
Philadelphia Family Pride: https://www.philadelphiafamilypride.org/
Support Center for Child Advocates: https://sccalaw.org/
Philadelphia Family Pride: https://www.philadelphiafamilypride.org/
Support Center for Child Advocates: https://sccalaw.org/
Alito REALLY wants this to be a licensing case, I think because then he can claim the city is choosing unfairly who can participate in foster services. But it's very clearly contractual, and CSS openly declared it would violate the terms of the contract not to discriminate.
Fisher makes an important point about how this is about foster children, not adoption. These are kids in the custody of the city of Philadelphia. If CSS were doing private adoption placement, that would NOT entail the kind of contract with the city at the center of this case.
Fisher points out that there are no exemptions for refusing to certify families based on disability. Parents just have to be able to demonstrate they are capable of caring for the child. Not the same as wholesale discrimination against a class as CSS wants to do.
It hasn't come up, but I assume that just like you wouldn't want to place a racist kid with a family of color, you probably wouldn't place a homophobic kid with a same-sex couple either! That's totally different than refusing to work with same-sex couples families entirely.
I can just imagine Kavanaugh half a century ago asking, "Do you agree that Black people can go to a different lunch counter? That every Black person in the city is, in fact, able to find a place where they will be served lunch?"
Becket's closing argument is: "CSS has been doing this for a long time." You know what, CSS could continue if it just agreed to serve same-sex couples equally, as Philadelphia city law requires and as Bethany Christian Services did.
They want free reign to discriminate.
They want free reign to discriminate.
This case is pretty terrifying. Imagine if our laws against discrimination had nothing to do with the harm of that disparate treatment but just the Court's notion about which identities are more special than others, i.e. race over sexual orientation.
That's where we're headed.
That's where we're headed.
Thanks for following along to some of my live tweets from the Supreme Court's oral arguments in Fulton v. City of Philadelphia. If you missed the background thread I provided earlier this morning, you can head back to the beginning here: https://twitter.com/ZackFord/status/1323994699116486656
