Prof. Marty Lederman (Georgetown) on the Fulton Oral Argument
A long, detailed, and characteristically thoughtful post; here’s the intro, though it’s all worth reading:
Many of the Justices appeared to be troubled by Philadelphia’s refusal to contract with Catholic Social Services (CSS) to be a Family Foster Care Agency (FCA) unless CSS agrees not to discriminate against same-sex couples when it certifies whether particular applicants are qualified to be foster parents for children in the City’s custody. As far as I could tell, however, the Justices were anything but settled about how to think about those concerns in relation to the Court’s Free Exercise doctrines–indeed, they expressed deep uncertainty about just which of those doctrines is, and is not, pertinent to the case.
So I thought I’d offer a few additional thoughts here on the major themes of the oral argument. So as not to make this post overly long, I’ll assume familiarity with my post from yesterday, where I discuss some of these matters in greater detail.
Is Philadelphia’s Nondiscrimination Condition Generally Applicable?
In my pos
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