Barrett asks about precedent in case involving LGBTQ discrimination and religious rights
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U.S. Supreme Court Justice Amy Coney Barrett asked questions that appeared to favor both sides during oral arguments Wednesday in a case involving LGBTQ discrimination and religious liberty.
At issue in the case, Fulton v. City of Philadelphia, is whether Philadelphia can exclude Catholic Social Services from the city’s foster care program because the agency doesn’t place children with same-sex couples.
The New York Times described Barrett’s questions as “evenhanded,” while the Washington Post said she “asked both welcome and tough questions of both sides.”
Catholic Social Services had asked the Supreme Court to reconsider a 1990 decision, Employment Division v. Smith, which held that the free exercise clause can’t be used to challenge a generally applicable law, even if it burdens religion.
But Catholic Social Services and the U.S. Department of Justice had argued that Employment Division v. Smith didn’t have to be overruled for the Supreme Court to rule in favor of Catholic Social Services.
Barrett asked a lawyer representing Catholic Social Services a question about the decision, according to Law360.
“You argue in your brief that Smith should be overruled,” Barrett said to the lawyer, Lori Windham of the Becket Fund for Religious Liberty. “But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So if you’re right about that, why should we even entertain the question whether to overrule Smith?”
Windham replied that Smith had “caused negative results.”
In response to other questions, Windham said Catholic Social Services had never been approached by a same-sex couple seeking to become foster parents, and if it had, it would have referred them to other agencies that do not have a religious belief against same-sex marriage.
“The city has no compelling reason for excluding Catholic Social Services,” she argued.
Barrett also asked whether religious agencies could exclude mixed-race couples, the New York Times reported.
“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?” she asked.
Windham and a lawyer for the DOJ, Hashim Mooppan, said agencies could not discriminate based on race, according to the Washington Post.
“Race is unique in this country’s constitutional history, and eradicating that type of racial discrimination … presents a particularly unique and compelling interest,” Mooppan said.
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