With Justice Barrett’s appointment, many LGBTQ Americans and their families fear those gains are at risk. Indeed, opinions in each of those decisions explicitly called out concerns of religious liberty; Justice Clarence Thomas said in a 2015 dissent in Obergefell that the majority decision undermined religious liberty; and in the majority opinion in Bostock Justice Neil Gorsuch suggested that religious liberty questions could arise in future employment discrimination cases.
From a legal perspective, I heard several key questions that may determine the fate of the case.
Is the Philadelphia law one of “general applicability”?
The ambiguity surrounding whether a law is generally applicable has led to criticism of Employment Division. Justice Barrett may well be called to overrule a decision authored by her mentor Scalia, for whom she clerked. Because Employment Division has been questioned, the court could use this case as a vehicle to end that approach.
Is CSS a government contractor, or is Philadelphia licensing the foster care activity?
In contrast, if the city is licensing such activity, like licenses for barbers, then such restrictions must advance a compelling government interest if there is an impingement of religious freedoms. The justices seem split over how to characterize the relationship between CSS and the city in this case. Justice Sonia Sotomayor clearly views this as a contractual arrangement, stating, “It’s a lovely argument, but I’m having a very hard time accepting how, when the City sets forth a set of criteria, only these people can do this work for me. That’s not a license. That’s an employment contract.”
Justice Barrett asked if it was possible for “any entity to participate in the recruitment and certification of foster families without a contract from the City?” The city conceded that, no, they cannot. The implication of Justice Barrett’s question is that these contracts are effectively a license because, without a contract, a group cannot engage in providing foster care at all.
What could the impact of this decision be on other forms of non-discrimination protections?
The oral argument made clear that the justices are acutely aware of the implications for other forms of non-discrimination protection. Justices Stephen Breyer, Samuel Alito, Elena Kagan, Sotomayor and Barrett all asked questions based on the hypothetical of a foster care agency declining to work with interracial couples based on their religious beliefs. The petitioner Fulton argued that, under Supreme Court decisions, race is different and that no agency could do so. The United States federal government, supporting Fulton’s position, also suggested that racial discrimination is simply different.
Justice Kagan did not seem to accept that argument. She asked the United States, “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.” She then pushed further asking, “Do you think it is a compelling state interest to want to eradicate discrimination against gays and lesbians?” Justice Breyer seemed incredulous that the petitioner and the United States were asking the court to write an opinion stating that racial discrimination is somehow different than discrimination on the basis of gender, religion, national origin, and sexual orientation.
Is there an issue here at all?
The characterization of this case as being about LGBTQ rights versus religious liberties, therefore, is too simplistic. The justices carefully explored the nuances in the case and the potential collateral consequences of their decision.
Nevertheless, the complexity of this case suggests the Supreme Court will address the issue as narrowly as possible, doing its best to balance the interests in religious liberties and LGBTQ rights. We may not (yet) know Justice Barrett’s views on LGBTQ rights, and the case may be unsatisfying to those on both sides of the issues. And that may be the right outcome.