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The U.S. Supreme Court seemed poised today to side with Catholic Social Services in a battle that pits religious freedom against anti-discrimination laws in Philadelphia. At issue is a Catholic charity's refusal to screen same-sex couples as foster care parents. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: While new Justice Amy Coney Barrett did not indicate which way she's leaning, other members of the court's conservative majority did, though just how far they're willing to go was unclear. Seven of the court's nine justices were raised Catholic. Six of them, including Barrett, are Republican appointees. And prior to Barrett's arrival last week, all have pushed for an expansion of religious rights under the Constitution's guarantee to the free exercise of religion.
Today's case, however, involves government contracting, an area of the law in which the court, in the past, has said that government is at the apex of its power to impose conditions. On one side is the city of Philadelphia, which contracts with 30 private agencies to certify eligible foster parents. The problem is that the city's contracts ban discrimination against LGBT couples in the screening of foster parents. And Catholic Social Services, citing religious grounds, refuses to certify same-sex married couples. CSS maintains that to do so would be an endorsement of same-sex marriage in violation of its religious beliefs. Because of that, the city ended its contract with CSS for future certification and placement of children in private homes. Two lower courts upheld the city's decision. But on Wednesday, the Supreme Court seemed headed in a very different direction. Four of the court's conservative justices - Alito, Thomas, Kavanaugh and Gorsuch - were overtly hostile to the city's position, stressing the good work that CSS does for needy children. Here, for instance, is Alito.
SAMUEL ALITO: If we are honest about what's really going on here, it's the fact that the city can't stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage. Isn't that the case?
TOTENBERG: Absolutely not, replied lawyer Neal Katyal, representing the city. And he pointed out that Philadelphia right now is giving CSS $26 million for other foster care services, including group homes. Justice Kavanaugh pursued another line of questioning.
BRETT KAVANAUGH: It seems like Philadelphia was looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court, even though no same-sex couple had gone to CSS.
TOTENBERG: Lawyer Katyal noted that it wasn't the city but CSS that appealed this case all the way to the Supreme Court. One same-sex couple was rejected by another religiously affiliated agency, he said, and that agency then changed its policy. If CSS can refuse to certify same-sex couples, he argued, agencies could refuse to allow Buddhists or Baptists too, and foster care agencies would be balkanized.
Justice Barrett, for her part, asked more neutral questions but seemed to draw a line between discrimination based on race, which she said nobody would endorse, and discrimination based on gender, ethnicity or other characteristics. Chief Justice Roberts asked hard questions of both sides, posing this question to the lawyer for CSS.
JOHN ROBERTS: Shouldn't 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?
TOTENBERG: But he asked the other side what, would happen if a child didn't want to be placed in a same-sex couple's home? Lawyer Katyal replied that where a child is placed is a different question from certification. At the certification stage, the question is whether the applicant is able to provide a suitable home for foster care, he said. At the matching phase, where children are matched with appropriate homes, other factors may be considered, like race, geography and disability.
The court's three liberals - Breyer and Kagan, both Jewish, and Sotomayor, who's Catholic - expressed consistently different views from the court's conservatives. If you can turn down a same-sex couple, they asked, why not an interracial couple?
Nina Totenberg, NPR News, Washington.
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