Supreme Court Lets Catholic Group Exclude LGBTQ Foster Parents The decision marks a triumph for a new brand of conservatism on the court, which is putting the Constitution's guarantee to the free exercise of religion at the highest level of protection.

Supreme Court Rules Catholic Group Doesn't Have To Consider LGBTQ Foster Parents

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Two big decisions came down from the U.S. Supreme Court today in a major LGBT rights versus religious rights case. The court ruled that the city of Philadelphia violated the Constitution when it ended its contract with a Catholic group that refused to consider same-sex couples as potential foster care parents. In a second decision, the court upheld the Affordable Care Act for a third time. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Once again, a group of Republican-dominated states went to court to challenge the Affordable Care Act. But this time, they didn't have the support of the business community or groups that had supported the effort in the past. And this time, the court, by a 7-2 vote, threw out the challenge on the grounds that Texas and other objecting states were not required to pay anything under the revised mandate provision and thus had no legal standing to bring a case in court.

Writing for the majority, Justice Stephen Breyer said that to have standing to sue, a state or an individual must show a harm, and here, there was no such harm. Joining Breyer in the majority were four conservatives, Chief Justice Roberts and Justices Thomas, Kavanaugh and Barrett and two other liberal justices, Sotomayor and Kagan. In dissent, Justice Alito, joined by Gorsuch, would have struck down all the most popular provisions of the Affordable Care Act. Now the law appears to be secure, says Case Western Reserve Professor Jonathan Adler.

JONATHAN ADLER: If Obamacare is going to be dramatically changed, that's something that Congress will have to do. The courts are not going to do it.

TOTENBERG: But while the court left the status quo in place with Obamacare, its second major decision of the day significantly expanded protections for religious groups that have contracts with the government. And the court's decision continued the march towards expanding constitutional protections for the free exercise of religion, while at the same time lowering the wall of separation between church and state. At issue was a decision by the city of Philadelphia to end its contract with Catholic Social Services for screening potential foster care parents. CSS challenged the termination in court, citing its religious belief that same-sex marriage is wrong and maintaining that ending the contract violated its First Amendment right to the free exercise of religion. The court agreed unanimously that the city violated the Catholic group's rights, but the justices divided 6-3 on the reasoning, with the majority limiting the reach of its decision, at least for now. Here's Richard Dearing, chief of the appeals division for the New York City Law Department, who filed a brief for local governments in support of Philadelphia.

RICHARD DEARING: It's certainly a loss. It's a narrower one than some might have feared. And so I think in that sense, it's not exactly a bullet dodged but something like that.

TOTENBERG: Alphonso David, president of the Human Rights Campaign, said that the ruling in favor of CSS left many questions unanswered.

ALPHONSO DAVID: There will be additional cases because our opponents are constantly looking for opportunities to challenge our rights. So this is not the end of the story.

TOTENBERG: The reason for all this equivocating on today's decision is that the case brought by Catholic Social Services was aimed squarely at overturning a 1990 Supreme Court decision called Employment Division v. Smith. It was authored by the iconic conservative Justice Antonin Scalia, himself a devout Catholic, who wrote that when government has a generally applicable law or regulation and enforces it neutrally, the government's action is presumptively legitimate, even if it has some incidental adverse impact on a religious group or person. But the court majority, while siding with Catholic Social Services in the case, specifically refused to overturn Smith, at least for now. Writing for six of the justices, Chief Justice John Roberts said Philadelphia had allowed other nonreligious exemptions to its anti-discrimination policy, but not this one for CSS - and even more importantly, that the decision to end the contract had been made by a single official. Those two factors made the decision unconstitutional, Roberts said. University of Pennsylvania law professor Marci Hamilton explains the decision this way.

MARCI HAMILTON: What the court says is that this is not a generally applicable law. And how do you know if it's a generally applicable law? It's one that doesn't have individualized assessments. This is complete discretion on the part of one member of the Philadelphia government. That alone got nine justices to agree. That you simply can't do.

TOTENBERG: Joining Roberts in the majority were the court's three liberal justices - Breyer, Sotomayor and Kagan - as well as conservative Justices Kavanaugh and Barrett. The remaining court conservatives - Alito, Thomas and Gorsuch - agree that CSS should win but wanted to overrule Justice Scalia's Smith decision. Barrett and Kavanaugh, in a concurring opinion, hinted strongly they'd like to do that, too. But as Barrett put it, what should replace the Smith decision? I'm skeptical about the problems that might result. Fortunately, she said, we don't have to address that question now. Nina Totenberg, NPR News, Washington.

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