Four Observations from Fulton v. City of Philadelphia
Elections come and presidents go. But the Supreme Court continues to chug along, like nothing happens. Unless, of course the Supreme Court has to decide the election. Or if the election results in the expansion of the Supreme. For now, at least, neither option looks feasible. On Wednesday morning, as the ballots were still being tabulated, the Supreme Court heard oral arguments in Fulton v. City of Philadelphia.
The session, which lasted nearly two hours, was absolutely fascinating. Lori Windham of the Becket Fund for Religious Liberty argued on behalf of the Plaintiffs. (I am co-counsel with Becket in a different case challenging New York’s lockdown measures). Hashim Mooppan, Counselor to the Solicitor General, argued on behalf of the United States. Neal Katyal represented the city of Philadelphia. And Jeff Fisher represented the Support Center for Child Advocates and Philadelphia Family Pride Respondents. An all-star cast all around. And the Justices brought their A-games.
Much of the case focused on a fairly technical fact question: should Catholic Social Services (CSS) be treated as mere contractor, or instead a licensee. There was some dispute about whether the First Amendment analysis would differ with regard to those two different statuses. This predicate factual question may give the Court an easy out to avoid ruling on the more difficult constitutional question.
This post will focus on four broader issues. First, Fulton picked off where Obergefell left off: how does opposition to same-sex marriage compare to opposition to interracial marriage? Second, Justice Breyer continues to wrestle with the Religion Clauses. He is truly conflicted about how to balance the rights of religious communities with those of the greater community. Third, we got an early glimpse of how Justice Barrett views stare decisis, Smith, and Sherbert. Fourth, Justices Alito saw this case, at base, about animus towards the Catholic church’s views on same-sex marriage. In this post, I’ll presume a general familiarity with the facts and history of this litigation.
1. Same-Sex Marriage and Interracial Marriage
Throughout the arguments, several Justices brought up the Loving question. If CSS was allowed to decline to evaluate same-sex couple, could another religious group be given a similar exemption for interracial couples. For example, Justice Sotomayor asked Windham what would happen if a religious organization asked to “exclude interracial couples” from their assessments. Windham did not answer that question directly. She pivoted, and explained that Philadelphia allows foster service agencies to consider whether a family has a disability. In other words, the state’s interest could not be so compelling if it created other exemptions
Justice Barrett continued the theme:
What if there was an agency who 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 and, if so, how is that distinguishable from –or, if not, how is that distinguishable from CSS’s refusal to certify children to couples in same-sex marriages?
Windham responded that “in Loving and other cases that government has a compelling interest in eradicating racial discrimination.”
Hashim Mooppan, Counselor to the Solicitor General, gave a very similar answer in response to Justice Breyer’s question: “I would differentiate the interracial marriage . . . this Court has made clear repeatedly that there’s a particularly compelling interest in eradicating racial discrimination.”
Mooppan cited Pena–Rodriguez v. Colorado: “race is unique in this country’s constitutional history, and eradicating that type of racial discrimination pretends –presents a particularly unique and compelling interest.”
Later, Justice Alito threw Moopan a lifeline. He recounted Justice Kennedy’s observation in Obegefell that “there are honorable and respectable reasons for continuing to oppose same-sex marriage?” Alito added, “Would the Court say the same thing about interracial marriage?” Of course, Justice Alito was alluding to his question to Solicitor General Verrilli about Bob Jones.
Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a 10 university or a college if it opposed same-sex marriage?
General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is –it is going to be an issue.
Yeah, it’s going to be an issue. Now!
Later, Justices Breyer questioned Mooppan about the question Verrilli punted on: was the state’s interest in eradicating opposition to interracial marriage greater than the interest in eradicating opposition to same-sex marriage.
Next, Justice Sotomayor returned to this theme, with a variation. The compelling interest concerned the elimination of the stigma attached to the discrimination.
Counsel, I’ve 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, that a rejection on the basis of race or any protected category creates a stigma on that person and that it’s a compelling state interest for the state to have an anti-discrimination law on the basis of protected classes. Are you –are you diminishing that as a compelling state interest?
Justice Kagan would pounce on this issue. She was on a mission. She wanted to corner the federal government on the Bob Jones question left unresolved in Obergefell.
First, she asked how Mooppan would compare racial discrimination with sex-discrimination.
Justice Kagan: If I understood you correctly, you said that it is a compelling state interest to eradicate racial discrimination, but it is not a compelling state interest to eradicate discrimination on the basis of sexual orientation. And I was wondering where in this scale that you’re using would discrimination on the basis of gender come. Would –would that be a compelling state interest? So, for example, if there’s an agency that refuses to employ women, would the state have to contract with that agency?
You know what the follow-up question to “gender” would be? Bostock! Isn’t discrimination on the basis of sex the same thing as discrimination against LGBT couples? (Thank you Justice Gorsuch). Mooppan didn’t take the bait. He bobbed and weaved.
Then Dean Kagan went for the kill. This colloquy must have given the HLS graduate flashbacks to 1L:
JUSTICE KAGAN: Do you think there’s a compelling state interest to try to eradicate discrimination against gays and lesbians? Is that a compelling state interest?
MR. MOOPPAN: So we’re not denying the significance of that interest in the abstract. W
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