Fulton versus city of philadelphia. Ms. Windham. Mr. Chief justice and may it please theourt, the court below made a simple error. They failed to understand where emplment division versus sth controls and where it doesnt. Ith doesnt control when the government uses the system of individualized exemptions. Orem when it makes other exceptions that underminets rules or when it changes the rules to phibit a religious practice. Philadelphia made all threefe those errors here and the city still cant identify a neutral genelly applicable law even ter six attempts and in our knowledge is its decisions are subjective and individualized. The courts belowtill apply to smith and even said smith would be a dea letter if petitioners prevailed a that demonstrates the confusion and instability smith has csed. Respondents rather than defendansmith asked the court for a newly minted nstitutional standard that is even less protective of religious exercise and that approa has no basis in the text, history or traditions of the freexercise clause. The city has no compelling reason for excluding Catholic Social Services which is exercise his faith by serving atrisk children in philadelphia for two centuries. Does it have any interest in refusingo allow the agency to st aside and provide referrals elsewhere. Philadelphias refusing to place children of a loving mother like tony and cheryl just because they chose to partner with an ancy who shares their faith. Respondents act as if this is a zerosum game, either lgbt coppers can foster or fulton and cns can. But the law and deces of experice say otherwise. The free exercise clause is at the heart of our Pluralistic Society and protect petitioners vital work for the philadelphia community. I welcome the courts questions. Ms. Windham, this is a case involving free exercise rights but it is in tension with another set of rights, those recognized in our decision and whatever you think or however you think that attention should be resolved as a member or matter of government relation, shouldnt the city get to strike a balance as it wishes when it comes to setting conditions for participating in what is after all, its Foster Program . Mr. Chief justice, i dont believe that analysis should control here for a couple of different reasons. This courts precedents made clear that when the government is acting as sovereign, using his ring the tory Authority Like when its applyin a citywide fair practices ordinance or the ordinance then the crt does the normal free exercise clause analysis. The same thing is true when the city is deciding at the outset who is able to participate in a programm. So you dont see any difference in terms of the analysis whether it is simply a regulation in the city issuing a rule of government across the board as opposed to part of the rules participating in a program, in other words, not in cathe sovereign capacity but ina managerial capacity or, you know, businessapacity. The city isnt acting in one of those capacities here and i think a key factor is the fact that they are relying on the fair practices ordinance and the fact they but do you think there are different rules in those two different contexts . Mr. Chief justice, if you had a situation which is unlike licensing and unlike Trinity Lutheran or espinoza when the government is managing internal affairs and the governments interest may be stronger but here in philadehia has said e css is an independent contractor and is not an employee or agent of the city. Justice thomas. Thank you, mr. Chief justice. Counsel, following up on the chief justices question. This seems to involve both contractual relationships with the city as well as the chief said regulatory or licensing and in that instance when you have both aspects of that do we analyze it as a government contract and again referri back to the chees point or as the sort of Licensure Program where the city has basically taken over an area and now it has certain requirements of the regulated industry. Justice thomas, as your honor acknowledged there at the end the city is trying to regulate an area that is historicay been an area of religious practice and that sets this case apart from any cases in the city is citing. Its correct or using revelatory authority and using Sovereign Authority and using Licensing Authority to decide who gets to participate in those t caseshere the courtsar precedents has said you do the normal constitutional analysis and there is not some special rule. Here both the oldontracts and the new conacts say we are not an or agent of the city in the same analysis should apply here as it did in the kumi and espinoza and Trinity Lutheran. This is different from a case like say, bowen where you are trying to reach out as a third party until the city how to run its internal affairs here the city is reaching out and telling a private religious ministry which is a doing this work for twoenturies how to run its iernal affairs. They are trying to corset to make statements that are contrary to its religious beliefs as a condition of coinuing to participate the religious exercise that they have carried out in philadelphia for two centuries. Thank you. Justice breyer. Thank you. On pages 45 and 46 of the citys brief they say that they arent requiring you to endure same sex marriage but they are saying all they are asking you to do is evaluate a couple without reference to whether they are same sex or not. You read that. It says your objection is to being required to evaluate and provide written endorsements of the same sex relationship but they arent saying to do that. Indeed, they say add something onto any response you make and say that you do not endorse same sex marriages. Say it. You see what it says. So save porges 45 and 46 were written right into your contract allowing you to say whatever you want about same sex but all they want you to do is evaluate this couple irrespective of same or different sex. What is your religious objection to that . Justice breyer, i will point your honor to the joint appendix 210211, 237 for that very question was asked a head of Catholic Social Services testified that sir finding a home of the same sex couple would be in violation of that religious belief. A home study is essentially validation of the relationships in the home and that a final hometudy includes a written dorsement of the relevant relationships for the Foster Parent. The state law as well asks an ency to assess the ability of applicants for approval of the Foster Parents. With the city is asking css to do here is to certify validate and make stements that cannot make you not are of any case where this crt has said its okay to compel speech or coerce religious exercise as long as you can t a disclaimer onto the end of it. Responde certainly havent cited to any. It wld be hurtful for css and r the couple if any couple ever approached them for them to go into their home, assess their relationships, interviewhem about their intimate relationshipand their family and then at the endndin of thate to say we canno provide that approvalor you and your family. Css is making a modest request here. It is to stepside and be able to allow diverse religious agencies to sve the fit city of philadelpa asci they have done successfully for many yea years. What you dont have to say according to them was whether the couple is married, whether it is not married, whether it is same sex, whether its a different sex but you just took that to the side making note that youre putting it to the side and say other than that they are okay or not okay. Thats all you have to do. Now, what is the problem and i still dont quite see it. He said in response that you dont want to do it which i understand that you dont but they say they are imposing the requirement that does not interfere with your and they cant figure out how it interferes. And so, we write 45, 46 right into your contracts, word for word and now tell me once again what is the problem . In her last answer you just said they cant make you say anything and i guess that is true but we write 45, 46 and say you can Say Something if you want or dont have to if you dont want to but just take samesex, different and put it to the site and say other than that are they qualified. They are still being asked to do evaluate, assess and approve of a couple under state law and in their own written report and that is something they can testify that they cannot do. This is also not an unknown or usual religious belief. Eleven states have passed laws to specifically protect religious Child Welfare providers in this context as the usc made brief points out there is an Agency Closure across the country over this very issue int what we are asking here. Justice alito . Let me ask you a couple of questions about what is in the record of this case and about the facts of the case. Again, as far as the record asreflects how many same sex couples in philadelphia have been denied the opportunity to be Foster Parents as a result of Catholic Social Services policy . Zero. In fact, Justice Alito non had even approached cholic social services asking for this approval and endorsement. Before the events at issue now, how many children had been placed or were in homes that had been evaluated by Catholic Social Services . At the tim of the referral freeze there were wellze over 10 children who are currently being served and over the years there have been thousands who had been served by Catholic Social Services. How many children are awaiting placement in foster homes in philadelphia . According to the city o philadelphia at the time when they rose intake for css there were 250 children who were in group homes who need to be moved out of those homes and into family homes and this is in the best interest ofhe children and obligation under state law but commissioner figueroa page 5253 of the ja acknowledged that those children were still in group hos and children wereot going to be moved into homes they are supported by Catholic Social Services. One of your main arguments concerns a the fact that there are exemptions to the generally applicable rules under the citys policy and im somewhat uncertain about what the citys final position is about and the availability of the exceptions of what was youunderstanding of that . Justice alito i understand there are individualized exemptions for provision threepoint to one of the contract and the waiver Exemption Committee that they are categorical exemptions whenever an agency cducts a mestudy they have to consider disability, marital status and familial status and that is prohibited by the cities fair practices ordinance. Those are the city itself actually deviates from the fair practices ordinance even though it is bound by it when it is making placement decisions inug foster care. Today to make the exemptions at the initial stage or only at the place of placement stage . Justice alito, the cities exemptions are the cities stage but those exemptions are happening when they are carrying out the home studies so the exact same point in the process that the city is trying to coerce Catholic Social Services here and ofourse, the waiver Exemption Committee could in theory give tm at any stage. Thank you. Justice sotomayor. Counsel, im interested in why you see yourself as a licensed see as opposed to a Government Contractor . I understand that many governments throughout the country do these home assessments and certifications internally and they hire employees within the government and they set up criteria and they are the ones who choose w o certify a family or not. Why arent you any dferent than a Government Contractor . What license are you receiving . Ive never heard of a license where they pay you to take the license. Justice sotomayor, the city is exercising a Licensing Authority because it is deciding which foster agencies are able to perform the services in the city of philadelphia. But that is no different than deciding setting forth criteria to hire someone to do work for you. Its a lovely argument but im having a very hard time accepting when the city sets w forth a set of criteria only these people can do this work for me, thats not a license but an employment contract. In the city of is an employment contract. Css is not a employee or agent. Philadelphia orphans vania has chosen to partner with that private agencies to do its work. Bute have often permitted and we have a legion of cases with people who are not state actors or agents or actual employees but contractors or people who are being retained to do thingsor the governmente wher we said the government could set the criteria it wants. Why are y anyt different . With the city is trying to do here is tell religious groups that have been doing this prior to when the city got involved we will exclude you a you can no longer carry out this work unless you take actions that are contrary to your faith. That is something the free excise clause prohibits and that is what philadelphias attempting to do here. Philadelphia and the respondents position here is a dangerous one becauswe are saying or ty are saying even if youre not the employee or agent and that counsel, im sorry but counsel, i dont have much time but just one last question. What is dangerous is the idea that a contractor with a religis belief could come in and say exclude other religions from being families certifying families, excluding someone with a disability. How do we avoid that or exclude interracial couples . Justice sotomayor, the city allowed agencies to exclude people with disabilities today and that is one of the texceptions that they have from their but they require an agency to be specialized in that placement if the agency gets t the specialization, it can become one. They agency actually can include parents on the basis of disabilities on providing Foster Parents. What does that have to do with certifying a family . Meaning those are two different functions. The certification process is who is eligible and they dont require someone to have or to be married even, same sex or not. That is different than placing a child which is governed by the best interest of the child spirit briefly counsel. Justice sotomayor, the state law does take into account visibility including mental and emotional stability. Thank you, counsel for Justice Kagan spirit good morning, ms. Windham. Id like to take you back to the chief justices opening questions and give you a hypothetical. Suppose that there is a state in it doesnt want to operate its prisons itself so it contracts with private organizations to do so and in the contract there isa a provision that says that no employee can use drugs of any kind. A group says that it wants to operate a prison says it wants an exemption for coyote use. What would be the result in that case . Justice kagan, to know the results in that case first of all we would have to know whether the governments rule there are neutral and generally applicable. I believe the free exercise analysis would apply. You know, i got the question im trying to get at is here is the government in its capacity as a contractor saying something, a condition that is extremely relevant to the contract in its view and shouldnt the government have leeway to do that and to just say you know, it doesnt matter why you want to use [inaudible] whether religious or anything else but we will just say there should be no peyote use or other drug use. Justice kagan, i think the state would be likely to prevail in that caseor a couple of reasons. One is unlike here thehe governments interest are going to be a lot stronger. The government there is taking something that is t traditionaly a Public Function in handing it out to private organizations. Thatspposed to here as taking moving in anncreasingly regulating and restricting work that is traditionally been private. But there are a lot of things that governments do to put another question on the table iod there are a lot of things that governments do now that traditionally were done by private organizations, religious organizations and you could go through, you know, youth homes are homeless shelters and lots of old philanthropy is now regulated and conducted by the government so why should at matter . Spirit Justice Kagan, that points up the question in this case does the free exercise clause shrink every time the government expands its reach and begins to regulate work that is historically and traditionally. Een done by religious groups to have a different argument if a religious group that had never engaged in this kind of activity said now we want to, with that make a difference to you . Justice kagan, i think it t would make a difference. I think the history here is important. When you look at the governments interest in the case that would be relevanto. Re is the city call css a point of light in a softe care system and it is demonstrated ththrough the years tt it can do this work successfully for the children of philadelphia would note detriment to the lgbtq philadelphia population. Justice gorsuch. The morning, counsel. What we do with the fact of the city seems to be representing to us here and now that the fair practice ordinance is binding on its own force and the department cat offer any exemptions . Spirit justice gorsuch, i believe thats an important fact here because if we will take the city at his word and they are what it means is we stepped out of the contracting context now and we are firmly in the regulating context. With the city is saying to Catholic Social Services is that it is illegal for you to do this work in the city of philadelphia according to your religious exercise whether you contract with the government or not. And how does philadelphia and its written documents with the Catholic Social Services tread . Is it an employee or agent . The city is qui clear ja 634 and css as an independent contractor and shall not be deemed or intended to be an employee or agent of the cities. How long has calyx over services been engaged inin this activity . They been doing it for two centuries now. What we do with your de facto exemption argument given the fact that we have in finding byi the District Courthat there are none . The District Courts i an error of law and the District Court says that it was a generally applicable law as long as it did not describe the particular conduct only or primarily when they were motivated. The District Court there had the wrong idea about what counts as an exception whatounts to make something not generally applicable and it made an error of law there. If we thought there was a finding of fact and we were stuck with it then what would you argue . I would argue in that case if the court was finding of fact th the courts decisions in the first moment case the crt will make an independent review and thats pertinent here were talking about the work of a contract and the work of a city law and the words of a state regulation. This is the business of the courts to interpret and apply the law. With respect to section or i see my time has expired but thank u. Thank you, counsel. Justice kavanaugh. Thank you, mr. Chief justice bird good morning, ms. Windham. I want to follow up on some of Justice Alitos questions and just make sure that i have some of the facts down pat here. First, i as i understand it philadelphia contracts with about 30 private foster agencies defined and trained in support foster families in Catholic Social Services is just one of them as i understand it in seconds, if the same sex couplec ever came tos social services Catholic Social Services would refer that couple to another agency that works with same sex couples so that the couple could participate and be a Foster Parents and then a third, no same sex couple has ever come to Catholic Social Services for participation in this program and therefore, Catholic Social Services policy has never actuallyenied any same sex couple the s opportunity to be Foster Parents in philadelphia. I want to make sure those three facts are accurate and you can elaborate as you see fit. Thats correct, Justice Kavanaugh. Samesexouple from being able to foster in philadelphia. There are many otr agencies out there that are merely asking to step aside. The city does not have a compelling interest here. Worked a system that has effectively and worked well for a number of years. The city of philadelphia had an easy option to allow Catholic Social Services to continue the great work that has been doing. Because the courts below deced to apply Employment Division v smith, the city thinks its under no obligation to consider respect and accommodate religious exercise, which demonstrates how far off the rails are free exercise jurisprudence has gone in this case. Tnk you. Justice barrett . Justice barrett you just kind of indicated that may be smith should not h that maybe it shouldnt have been implied and you argue that its meant to be overruled but you also say that y win even under smith because the policy is applicable non neual it will be how it resolved and what idance it provides below it looks to the text history and traditions of the free exercises clause and those made clear that smith is a bad f itecause two negative results since it was decided a it made clear that its production has actlly not worn out but its possible for the government to accommodate and partner with religious organizations to do religis exercises. What would you replace it with. Theyve given guidance in cases like the church autonomies in the cases like Trinity Lutheran the court has looked at the non neutrality or targeting but in other cases its simple does the government have a compelling reason for doing so. Here the government does not. Last question frankly even if we didnt, lets take this out of the samesex marriage context and put it into the interracial context as was indiced in an example like this. What if there was an agency who believed it was an offense against god and therefore objected to certifying as foster families how is that distinguishable from the refusal to certify to couples and samesex marriages . If that case or even to get to the scrutiny, the court has been cleared in other cases the government has a compelling interest and Racial Discrimination they imagine them making that concession involving interracial marriage. You have a minute to wrap up. Philadelphia will make adoptions but not for the reason of the religious exercise. Regardless of the Legal Mechanism that philadelphia uses, the bottom line is that it is using the law if it refers to the couples is another agency better suited to help them and as a result philadelphia wont place children with tony sims bush or cfs unless the church changes or violates the beliefs. Thank you, counsel. Mr. Chief justice may i please the court. Philadelphia hasnt afforded the services the tolerant religious practice required to the pluralistic nation the city s refused certified because havg exempted the conduct thereby devaluing the religious concerns and second the city hasnt applied this rule and its shown undue disrespect in the religious beliefs by creating the winwin accommodation as too onerous to tolerate. Counsel, you rely on the contract provision 3. 21 that bans the list of objectionable practices but has unless it is granted by the commissioner in his or her discretion. Has an exception ever been granted under that provision . Im not sure theres any evidence of that one way or another, your honor, but i do think the key exception that has been granted and recognized in the record isec that the city bh requires, tolerates and, engages the phrase when certifying and placing foster children. And in particular under pennsylvania code 3764, the city requires agencies to consider both familial status and disability certifying. The city has tolerated racial, ethnicbased outreach for Foster Parentser and then the city itsf considers this when placing children. The federal government has an extensive contracting regime and it draws distinctions between disability, minority ownershipnk and allan that. Do they have to be replicable across the board . Even with respect to the protected status. It is a federal government subject but if the state chooses to recognize exceptions to the provisions in the setting it can no longer claim to be acting in a generally applicable way. Justi thos. Justice breyer i would like to follow up on two questions the questions of the interracial marriage and the response so far from your site has been that is a compelling interest. Other examples. The government wants to contract to supply food g all of the militaryto bases because they ae unorthodox jews and there was nothing to do and dont want to let them have anything to do with it or consider a religion where we are bidding on this contract for the local transportation and we want men and women to sit separately or where headscarves. Is it your opinion the government has to do that and has to get into the religious or not . I think the question is whether the government is acting in a general way so if the government has a blanket impact that would be one thing. But if as in this case theon government has an antidiscrimination provision but then itself recognizes the exceptions its going to undermine its compelling interest and its going to have to explain why it can tolerate the deviations from that and a whole host of areas but it cannot tolerate the deviation for the religious accommodation. We can get other people to supply and say thats all right but we cannot do anything about this. The headscarves and we cant do anything about the interracial marriage, so your idea, how does that work out . I would differentiate from the rest of it, your honor. Its made clear repeatedly that theres a particularly compelling interest in eradication. I want to interrupt you right here because now to if you have said this. We should write an opinion that says discrimination on the basis of race constitutionally seeking is different than the discrimination all debate of gender on the basis of religion and nationality and on the basis of sexuality. I think the court already said something very similar about how it is unique in eradicating that discrimination. Justice alito. Didnt the court say exactly that, didnt the court say that there are honorable and respectable reasons for continuing to oppose samesex marriage, what the court say the same thingbo about the interracl marriage . Your honor, they may didnt say that and never would have said that. In addition they also recognized similarly that the context and circumstances in which they can recognize and accept that there are longstanding dpseated sincere religious beliefs that oppose samesex marriage a respects religious tolerance of accommatinaccommodating those sf religious practices does not undermine the interest inhe same. Itsonsistent in a way that if you would deal with interracial marriage it wouldnt be the compelling interest in the context. As a general matter unless we have too that is a strong polic. But what do the arguments in this case about the comicated arguments about exemptions and contracting or if its mo like a contractor, what does it say about the stability of the Employment Division or the president . As you know, we havent taken the position on smith. We do think that this is a relatively straightforward thing that the government hasnt acted in a generally applicable and neutral way. We think that is the way to make it clear that the city has recognized the exceptions from the antidiscrimination provision and that the courts errored because they made a legal error not treating those as exemptions because they looked narrowly at whether it was against the same religious reason. If there hads been an actor they would have picked up those w people, tomac. I always thought the holdings and Racial Discrimination cases was not nearly that it was as important with those that were rejected because of race but the rejection on the basis of race or any critique and category create a stigma on that person. You have an antidiscrimination law on the basis of protected classes. Are you diminishing that as a compelling state interest . I think that just cuts in the opposite direction here for two reasons. The first reason is no one is denied the ability in this situation first. They are by this agency. They are saying i will not certify you. It is an independent contractor with the city and the city said tole that couple we will not discriminate against you but the independent contractor doesnt want to serve you, doesnt want to certify you. Youay meet every criteria the state sets forth what they are opposing and additional criteria. Is a factual matter. I suspect part of that is natural meaning people gravitate to agencies that are known by their community and so im sure this is one of the arguments that was in the petitioners here its not that the agency or the citye has agencies that cater to one community but some agencies live in a particular community it might reflect more point made earlier couples can recognize except the social services and Catholic Church if they do not straighten out the service to the Foster Agency but on the flipside its important to emphasize that the rules do consider disability when certifying Foster Parents, so they can be denied the ability to serve as Foster Parents because of the disability so again sometimes it isnt enough but they are not going to allow that to happen inar the context. Thank you, counsel. It is a compelling statement but not on the basis of Sexual Orientation and i was wondering on the scale that you are using of discrimination on the basis of gender if that would be a compelling state interest if theres an agency that refuses to employ women, would the state haveth to contract with that agency. What i was suggesting with respect to the Racial Discrimination on the fact of the case the government has undermined t that interest the question in the case is whether the city of philadelphia has a compelling interest it is insisting the one situation it cannot abide by anyis discrimination suppose they are there and ready to undermine it becauseso it has been compelling it allows the state to act because usually it does. The question is whether the government undermined that interestth by recognizing such d what i am submitting is that its recognized here and the only ones that do involve race and all of the individualized consideration of race. Can we circle back to the question of whether social services should be treated as an employee t or agent and whether the city can effectively take over the service that it provided for some time so much so that it regulates it pervasively in this analysis shouldnt apply. Can you address that concern . It gets greater latitude with its capacity what it doesnt get is the ability to discriminate against the basis of the religion or religious exercise. If it allows them it cant then turn around and say itt wont allow them to bring in and the argument here is this similar that its allowing all sorts of other exemptions would otherwise be identical to the governments view . Ty were made made by the commissioner and the city council if we take e exemptions out ofhe case they havent taken the position about how theenase like that could b addressed. We are focus on both o the exemption and e statements what do we do witthe argument by the city when we normally take the representations about the law and some respect and that there are some. The language bends any differentiation or preference in the treatment of a person on the basis of and it considers recent disability. What if they were the only private agency that performed the service meaning that samesex couples in philadelphia simply couldnt become Foster Parents and lets also assume there are none relevant to the analysis the city at that point would have an interest that they would have the opportunity to serve as Foster Parents but of course the fact we have in this case there are dozens that are available to serve in the city ofin philadelphia and there is o evidence that theyve ever even tried so on the one hand it doesnt even help and what its doing instead is harming the children that its trying to serve. Whether it is applicable in the relevant respect that is a more apples to apples comparison how do we identify the relevant factor in this case the city claims to be enforcing its ordinance and they recognize exemptions for those but unless they can say its the one type under whichpe they can abide evn ifif they are recognizing exemptions and others for the best interest when they would be better served by recognizing the exemption that would allow them to continue to provide and the city refuses to do so there shall be no exemptions permitted to the antidiscrimination requirement, period would not be applicableth lacks. Any argument for why they were essentially making a value judgment ultimately the question ison whether the government is devaluing these interests and that is what is happening here would you like to wrap up for a minute . What the city has done is cutting off homes from the most vulnerable despite the Catholic Church. It requires, tolerates and engages in the various forms of discrimination on the basis for the best interest of children but then it turns around and refuses to abide by any form of discrimination with respect to orientation to deny an accommodation for the Catholic Church and the statements made by the various officials made it clear the reason they are doing that is an erroneous and an anachronism rather than recognized as a decent and honorable view. When they sign the contract it is government power to inspect and approve foster families under section 3700 of the f pennsylvania code. In every contact for the discrimination or carrying out the b delegated power as a constitution it compels the city to give a different contract and there is no precedent for such a thing. This is the program and the the government has broad powers to condition that stand in the government shoes performing functions and admitted theres s more leeway as a contractor. In all 50 states and services in many spheres it means they could discriminate against kids or categorically against Foster Parents on gender or religion. The justice asked that question apart from race and i didnt hear the response from the other side. G this isnt a hypothetical. The hearing revealed the clergy letter showing officers and active members of the congregation and others discriminate by religion such as against catholics and jews in south carolina, the petitioners to compile all these practices vulcanizing the foster care agencies and ending this openness to all. They were targeted for the beliefs of the District Court found after three days of the testimony that never happened and nothing has come close to the very obvious showing. If foster child requested not to be placed with the same couple would you take that into consideration in placing the child . Ffthat is at a matching stage and we certainly i think have come across the idea. Who is eligible to be a Foster Parent therere certainly different contexts but the question is at least in certain contexts you are comfortable with discriminating in this programal on the basis of Sexual Orientation but you have a strict rule to the similar taking intoo account of the orientation stus its the same at bh stages. There is no, there is a categorical bargain. Now at the stage that looks to the best interest like t federal standard and that inma l 50 states. That does t categorically exclude anne i and looks at the consideration. What my friend on theyo other se is doing is taking o thing which is the very narrow lited use taken into account as a part of the best interest of t child mandated by state lawnd i asked the city they cou find one instance s they avoided that placement with someone of that race. Justice thomas. J thank you, mr. Chief justice. You put a lot of reliance on your point would this differ with a prior organization that was regulated as opposed to the contractual relationship. Absolutely, that would be a different case but because this is the contracting circumstance that the government has far more leewayth the courts must give deference. Its important to understand that it doesnt similar those are made onay the best interestf the child and not growing the pool of the Foster Parents or discrimination theres nothing like the acrosstheboard flat refusal. I would like to get one question before my time expires dont you think it is in the best interest of the child to also have proof that is beneficial to the child i dont understand why that is also in the best interest of the child. We a hundred agree when you enable them to discriminate on the basis of orientation that will stigmatize but we agree a childe should be looking at the best place for that particular child. Justice breyer no family has ever been turned down by this agency indeed none have replied the disagreement is whether they sign a piece of paperth that sas if they are willing to have them say you dont have to take them into account at all. They dont want to do that. That seems to me to be a very narrow ground for deciding a case that has enormous implications. We think if there ever were a couple and it was a problem you would have to do something about itit. If it ever comes up, we will deal with it. But it never has. This has actually come up. That is what led to the newspaper article in this entire set of events they thought that they were operating within the contract terms. They took them at their word until they learned otherwise and it wasas at that point that the city said we are worried about making the city itself a party to discrimination and they didnt declare a breach. Rather they said they will not fulfill the terms of the contract but they left the rest intact. They are getting 26 million a year from the city which is hardly demonstrating religious hostility and that is for foster care andic Child Services but te governmentin still insisted and they were unanimous in saying that that was okay. Justice alito in your position when you ted to persuade us not to take this case, you represented the city had adopted an exception Waiver Committee to ensure that in the future any request would be directed to the Exemption Committee handled through the procedures inra established. Is that accurate . That is accurate the city established in its department something that quoted the request. Ifcs the css or another religios organization came to the city and said we do not, it is contrary to our beliefs to certify a samesex couple, there would be consideration of an exemption. The citys view of this has been clear from the start. They cannot make exemptions on the basis of the practice ordinance at all when it comes to things like this that the child who made the parent pool stage. There are some exemptions that can be done at the matching stage when the child is matched with an agency but that is just about the dhs making an individual referral to a particular agency. If we are honest about what is going on here its not about ensuring samesex couples in philadelphia have the opportunity to be Foster Parents. Its the fact that the city cannot stand the message theti Catholic Social Services and archdiocese are sending back by continuing to adhere to the oldfashioned view about marriage. Ol isnt that the case . Absolutely not. The text of course doesnt say anything like that as the district found growing evidence by evidence and piece by piece they rejected that and the most telling fact about it t is right now the city is giving that entity 26 million a year for foster care. The annual budget is one third. We are doing that every single year for this entity. The record reflects what the Catholic Social Services has done hasnt denied any couple the opportunity. The agencies that are willing to do what is nessary for them there is no realistic chance that that is ever going to happen but the city nevertheless is willing to cut them off from participation even if it means there will be foster children that will be denied the opportunity to have Foster Parents. Thats what the record shows, isnt it . We areth happy to talk about the record. The reports told us if this happens this is precisely what they wou do and it did happen. Send, that was the exact colloquy we had many years ago when the petitioner said there is no evidce of drugbuse and your unanimous opinionaid the government doesnt needo wait to act and that is particularly so on my third point the government identifie the most compelling interest it needs to ximize the number of parents in the pool and avoid the stigma. Is there any evidee cfs has not been a part of this program . Absolutely not. The record found the opposite and that is also true in other jurisdictions that have adopted the nondiscrimination policies. That is all on the particular issue that found these nondiscrimination policies increased the number of people available for deter people from entering in the first place. Have the numbers reduced since they havent been part of the program . I dont think we have members on count but we do have numbers from massachusetts when the bostick agencies filled the gap so there were at least more than now and we certainly welcome the idea of other entities working with the foster kids and that is why we are giving 26 million a year to do so. We value what they are doing. We were not looking for some sortrt of fight. The city wasre torn up about it but they looked at the stigma and the need to increase the pool and they thought about the fact the new requirements to the contract they themselves signed. Going to that issue in terms of tolerance because that seems to be part of the questioning and of some of my colleagues and you are addressing it by saying that its in other areas they are receiving a tremendous amount of work in other ways. Looking at this you say theres two different pools. One is can you become an eligible family and then there is placing a child. How do you see smith addressing that . In the contracting context i think that we would win even in this offer in context but the fact is is this a similar circumstance and they are different interests across the board flat refusal of a Government Agency to say the doors are closed to you entirely is different from the spirit of individualized best interest of the child determination so they aree focusing on and they focus on disability as well, but that absolutely mistakes the record because its state law that requires the agencies to have a special license for disability needs. Thats all thats about. Thats specialization to meet the childs needs. Has any parent been, other than disability because they cannot meet certain criteria independent of their ability they cannot do certain things with the child, but has there ever a been an agency that has r inar exemption granted on the basis of a protected characteristic . We dont thinknk of it as an exception but an application with the best interest of the child is when a particular child used racial slurs and avoided placement of the child with someone of that race for the safety of that individual child. I am concerned about section 3. 21. The 29 m version of the contract says, and im quoting an agency shall not rejectre perspective foster and adoptive parents based on Sexual Orientation unless an exception is granted by the commissioner in his or herth discretion so why isnt tt exactly the kind of exemption they want and why doesnt its presence undermine the states afforded interest . The District Court found they never made an exception towards the nondiscrimination requirement including under 3. 21. Is it true no exemption has been granted under that provision . I read it to say you cannot get out of it so easily but as long as there is an exemption and it exists and you could rely on it in the future that there is not neutrality. I disagree about the law and the fact. Smith doesnt say the existence triggers scrutiny. As is you cannot give exemptions discriminatorys so there were e organizations from the nondiscrimination rules but not religious ones. That would trigger strict scrutiny. They said an acrosstheboard prohibition is a parody of something that is applicable but thats alsoio obviously the example of something with exemptions and broad discretion with the opinions and with respect to 3. 201, it does to two basic things it says it bars them from rejecting the referral from the dhs and it can only be from the dhs and then the second thing it says they can make an exception they shall not reject a child unless an exception is granted so that is if the child is far away or Something Like that they would force the fca to take it but theres nothing about any sort ofof categorical classification on race or gender or anything like that with respect to 3. 21 and it hasnt happened in practice which is the standard of smith. I would like to followup on what we left off on. There seems to be some lack of clarity about the stage weli are at whether we are at the matching stage or screening stage as i understand its abot the screening stage and whether catholict, services would be eligible to participate in the program at all. Is that correct . I mean, basically they said they will not permit couples to be part of the screening process so if you are a married couple the doors are closed to you but not to a heterosexual couple. That is the stage of the process wee are dealing with. And at the screening stage my understanding is from your latestag briefing of course the fair practice ordinance for bids any exemptions at all. Is that right . Correct and that has always been the policy. And to follow up on section 3. 21 of the stage why is that legally irrelevant here . Because its at c a very different stage and at least in the Government Contracting case it isnt a similar because the city is saying and it gets a lot oftc deference our city interess are different and we are about trying to grow the number and policies like this detour and block the parents from coming in and at the matching stage of course first you are complying with state law so its ad different thing but the second, thats a much more particularized inquiry and it may just be its in the rare instances like the one example i was able to give you you might take a protective classification into account. Justice. Good morning. I have kind of a Bigger Picture and fought to express, and you can react as you wish. It seems like this case requires us to think about the balance o between the important rights recognized by theth court, the religious exercise obviously in the firstar amendment and samex marriage right and it seems all those levels of government should be carefully and often where possible inappropriate look for ways to accommodate the interests in reasonable ways. Its very sensite and controversial. There are very strong feelings on all sides thatarrant respect and it seems like we as the governments should be lookingat for possible winwin answers recognizing neither side is going to win completely given the First Amendment on the o hand and when i look at the case that isnt at all what happened here. It seems like philadelphia created a clash and was looking for a fight and has brought that serious controversial fight all the way to the Supreme Court even though no samesex couple had gone to cfs and 32 seats are available and even though they would refer any samesex couple to one of those other agencies and to be clear i fully appreciate this dogmatic. I understand that. But we need to find a balance that also respects religious beliefs. That was the promise written by the court explicitly promised that religious belief and what i tar is the absolutist and extreme position you are articulating would require us to go back on the promise of respect for religious believers. First, we absolutely agree thesee are feelings that warrant respect and both are important and we share the same spirit. A second i do not think the framing is religion versus samesex inequality. The way the city seem sees thiss the case about religion because if you accept what the argument will allow those things and in that sense religion will be pitted against religion, foster care agencies balkanized and this willin be te not just in foster care at any other number of areas the government contracts. Thirdus practically i dont thik you can look at this and just say this is a tiny accommodation m at is the heart of it because any accommodation will look reasonable. The problem is as the chief justice unanimous opinion says once you deal with the one objective the court will be stuck doing it for all. The accommodation was objecting to paying Social Security but they said income tax will be next and you cannot have a workable system for Social Security payments with so many religious accommodations and last when you said the city was looking for a fight we couldnt profoundly disagree more. We certainly wouldnt rush this to the Supreme Court and in both courts below after the three day hearing looking at the testimony and the allegations you said about the religious hostility thank you mr. Chief justice and good morning. I just want to make sure i am Clear Thinking about the question whether the city was functioning as a contractor or whether it was granting licenses. Is it possible for any entity to participate in the recruitment and certification of foster families without a contract from the city . Not with respect to this function and thats an important point. She kept saying we have been doing this for two centuries. Private entities have never done this because they never selected who cares for kids in the city custody state criteria and indeed the whole point of the modern foster care system is to bring responsibility for those kids inside the government and not lead into the private hands these are words of the state and the city has the highest interest in screening parents so this isnt an example of something described as a licensee function because they are not carrying out the governments work they are performinger their own work with the permission of the government. This is about the citys own kids and interests. Lets imagine that the state takes over all hospitals and says from now on we are going to be responsible for hospitals but we will contract with entities to run them so there is a Catholic Hospital that gets a contract with thell city to runt and its in existence before the state adopts the policy and its contract with the state provides you can get some exceptions for some medical procedures but every hospital has to perform abortions. In thats context do we analyze this as a licensing question or given that the Catholic Hospital cantha even enter the business without this contract do you still say this is a provision of a Contractual Service . First this isnt a monopolization case at all contrary to what my friend says. After all they stopped 26 million of lions share foster care budget so it isnt as if we are occupying the field or Something Like that. With respect to the hypothetical, there are two problems. One, the fourth and hypothetical as the government somehow monopolizing a private Healthcare System or Hospital System that itself would raise any number of constitutional problems and i think the intuition as to why that hypothetical sounds so horrible is because of that. Thats what does the work. To wrap up. Three things are notable. First this case as i think the justice might say comes as a wolf position that would enable them to exclude parents of any religion from buddhist to baptist and this court because it cannot secondguess the reasonableness it opens up the door to all sorts of claims and this very case radiated far beyond foster care to government contracts in all 50 states and a second the city would act the same way if a secular discriminated and the flipside is true the city contracts to the samesex couples despite its religious opposition and the city continues to contract to the tune of 26 million. The uniform policy continued contracting and continued our strong evidence that they got it right and finally, my friends never overcome the rule on neutrality after three days of f stimony the court found the preponderance of evidence favored the city. For these reasons we ask the judgment of the Third Circuit be affirmed. Thank you, counsel. Mr. Fisher. Mr. Chief justice may i please the court. I think what makes us feel like a hard case is that we are doing valuable work and acting based on traditional religious beliefs and it may appear as if it were not too high but that overlooks the Serious Problems in the claim. First, they are not acting in the capacity but rather as a Government Contractor. The claim implicates the governmentss managerial interest. Second, the free exercise claims cannot turn on whether they are honorable or offensive. All manners must be made for othere Service Agencies and because there is no constitutional difference between the contractors and the government employees, they also imply for example the Police Officers declined the religious grounds and Prison Guards consistently evangelizing the inmates and implications go on and on but the upshot is this. Whatever the rules might govern free exercise claims outside of the Government Contracting the antidesignationequirement is rconstutional because it is a reasonable rule governing the selection of those that will care for children in the citys custody. But the core problem here is that government is imposing a reasonable condition. That is the way the samesex because of the church ise wanted they thinkt is stigmatizing and sends the wrong msage for Foster Parents to belong to an entity that discriminates on the basis of gender but that is wi respect to people participating in the program. Less different than the church in zone structural ofhe organization. Jusce thomas. I want to go back to the sessment of the will as was designated in the placement. Do you agree with him that both these have to be looked at . And the state law the interest of the chd tested applies only at the placement stage. And with the general interes children but specificallyy speang and under federal law and state law and with the family . If you sayay stutorily its only the placement with the child en what is the policy with the family . The idea the court reason why is is a silly program these are children and city custody with their criteria that they would takthat. I mean what are you lookingat for . People to provide caring and loving and safe environment to kids. And that kind o a family . Is that for the best interes of the child . Justice thomas thatshy i think your question was answered on trying to be worksthe way the law that the standard for certification 30. 64 and that is not present there. O think that smith is a problem or solution that nobody can figure out how to answer. If you opponents when its hard to see how all kinds of governmentrograms can exist making exceptions every which way. And sincerely. If you win and then the only place to and services they can dos t . And that led Justice Scalia to that. And then to change congress if we makarf mistake. And just to see what is in your mind. And scalia for the reaso that you added with smith reached a cclusion with the stare decisis effect but what i will tell yohere isgh that the court recognizes the 47 self with the internal affairs ofhe government and internal operations that testifies. That is quite narrow in the sense that versus nelson and the core in that case used inteal operation so then th tells you that allows the government the same powewith the internal operations. Is it fair to say this is simply a Government Contracting case when Catholic Social Services and other agencies cannot participate in this activy at all and in whichnl some have been participating long before it was taken over . Unless they are approved by the city. En if its partially a contcting case. I think it is Justice Alito because even if the city did monopolize it would any different from the government owni the land or theelson it was only way to work in the spe program is Justice Kagan said earlier this Justice Sotomayor said i also went to aner the hisry that just the same our foster care that was used htorically but a completely Different Program because those and custody. But it has taken overore and more programs previously conducd by private entities. If the government took over operions . And that issue arose for a private entityould participate in a charitable activity is that a coracting case. I might have to hear re but in general the government could ke over homeless shelterscoun. Dont think theres any way to draw a line with th government can and cannot take over. What about our hospital . All hospitals contract tt out . I think that is hard to imagine how that would work with healthcare beg such a unique context and even systemwith the government takes over healthcare. With a hypothetical around ose lines i think its hard to imagine at all. Was the answer to what . Isorry. Were doingyo answer be th same if the government took over allospitals with they could insist of the hospital perform procedures that are objectionae on religious grounds to the socalled ntractorsf th. To some degree perhaps Justice Alito to beaised about doctors and they ha the opportunity to decide which they we carry out what the federal government that your hypothetical is raising and other implicationsng. Justice sotomayor . Mr. Fisher talking about the nctions there is the amicus brief that suggests a normal contractor that tho cases that you apply a rational basis b the government has taken over fear but this goes back to the question of how to define with private placement tt cfs can still engage in. And in the states custody since the way fm their parents. Correct . N general terms that is correct on the one hand , foster Care Certification that is something you can do only through the city for wt we are discussing here. And then related to adoption and to care for nee children. Is occupying a field here. These happened to bet the kids where abuse have been taken away from their parents, correct . Thats rightnt but even if the other side will rate if they had occupied the field of parental certification is no different than nelson garcetti with the government occupy as prosecution and the field of Law Enforcement there is where government has recently made the determination and establish to carry out the service. One last question to find the compromise can you suggest one . That were into real damage to all those that have been implicated . And with Justice Breyer what age is 45 and 46 of the brf that was cfs is concerned about and to endorse marriage for samesex couples and they can disclaim that to make very clear all they are doing is following state law with a government functio and not speaking for themselves. Justice kagan spirit the solicitor general main argument is the city is undermined by having a series of other injections that are similar to a cfs once the solicitor general also references various policies that have to do with placing children in consideration of race and disability so can you explain to me why those who are permissible they cannot give attention to cfs . I will say one thing about the law then give an answer of any specific. The, solicitor general strangely tried to put entirely aside to ask the questions the general applicability they have to have reasonable deference to assessment of its ownwn interest so in that context i want c to stress the Government Contractingva is highly relevant to this inquiry that is required. I think the solicitor general requires that that exemption the other side points to the certification process does notut existn but to talk about disability taken into account is just the criteria that i described was Justice Thomas as to care for a child that is sometimes relevantnd with child placement a different set of rules that apply with a different stage of the process so the city has recently concluded that is not a comparable setting and that is t the certification stage asking if someone can ca for children and with the compromise cfs has disputed samesex couples can care for children. I would like you to expand on that further mr. Fisher. And what is the exception that raises all sorts of questions are the law of generality and what is comparable enough. Why is it the three. 2 one matching processee like the screening process we should consider . For two reasons. Wine as i understand section three. 2 one and refers to referrals to dhs that is not the certification process. That is a matching process for similar situation. I will interrupt i will accept the way there are different stages legally of thebu process. So i will answer it this way. Smith but did not say that treatment not the general all amicable law becau then that would not be a general law so that disparate treatment of religious or secular regions Justice Alito said its not okay for medical reasons but not for religiousca reasons so bad voelker brief says its not just whether in the air for differential treatment because otherwise you simply just dont have a workable system of law. Thank you Justice Kavanaugh. Thank you for all the parties for their briefs and arguments just a couple of questions to confirm a couple of things factually. Do you agree i assume that catholicph social services is important and valuable work for formidable foster children in philadelphia . Of course. Yes. Do you agreen that they can become a false with one of the 30 agencies to agree samesex couples have gone to cfs and if they did they would be referred . Do you disagree with any of that . Justice kavanaugh i do not. Butnd samesex couples was turned away and the caution i would get a view to rely on this idea is remember, we dont know how many agencies will discriminate against sex Sexual Orientation or religion or other characteristic. I dont think the court accounts of how many agencies thinks they are discriminating on what basis. That is a difficult area to get into. I agree arguably the response maybe we should not be looking for problems before we confront them. Fair enough but remember even to get to this question because this is a Government Contracting case they said and nelson are asking the governments position that is reasonable one is to treat all equally carrying out the governments own program in the and then to have a managerial interest have to start granting exemptions now running a program to the government is very hard and then to say to corporate i dont think anyone disputes that once you have it. On admitted this then it seems very odd tooonclude to insist on itown on the citys behf. Good morning mr. Fisher. I have a question about the amicus brief that was bad up with a thirdpartyty harm principle and i am wondering if you agree with that and tell me where that principle comes from . Justice. I think that is true as the categorical. And to balance the free exercise where the interest are on the other. As i was just saying to Justice Kavanaugh youll get to the balance of harms because the Government Contracting case under nelson but even if you did with a thirdparty harm she would say there are serious government harms to harms we talked about people being turned away or turned away elsewhere but remember if people are really Government Program allows discrimination the brochure at tells pple with these other ageies and frankly if there were able sure. And take thacategorical view. One of the questi. I think we would agree there is no ciumstance we can think of with racial dirimination word be read as a religioust exemption. And with samesex marriage to justify the exemption. And i understand that raises special so wh the poster of free exercise to judge the legitimacy of religious beliefs and was somreligious organizations and then we would have to accept them and then the only queionr is and also s discrimination so i just dont think we can draw a ne in this context. Thank you think i will just leave you wh the last point i was making so the only question you have the analysis is different and to the dependent contractor like nelson the answer is no limit social the answer no. And with neutrality and the fact is thatso its not allowing discrimination for any reason have found page 85 i dont think anybody really thinks th kind of activity would have been allowed in 201 goingg forward for any reason so we think this is a case of equal treatment for special priviless satisfied equal treatment requirements not required to give special priviless here. You have ten minutes for rebuttal. I the discussion this morning to confirm iladelphia does not have a applicable law they have person exemptions what agencies consider factors prohibited und the fair practice ordinance now admits his supplies the publi accommodation law and analysis would beifferent if the court analyzed sovereign ability under the law. Under smith that trigger strict scrutiny. Al second wasatholic social partnering wit Foster Parents to walk in support those milies during a difficult process this is the ministry theity of philadelphia is trying to distinish. Cfs can reset other ministries androvides services at a lo as much is in fact the city is trying to distinguish this ministry an has done so in the most restrictive manner. So respondents which in some of the case with all kinds of harms and then to continue to ser in multiple states protect those agencies by law results thoseve that protect religious exercisend even Government Contractors and to identy where they come to pass. Finally endf this is necessary he couldve been avded by a properly functioning free exercise clause. Em the general applicability loving foster famils remain excludedhe traditions of the free exercise clause that when the government was to prohibit a longstaing religious exercise and its a compelling reason to do so. Thats a straightforward approach o and in this. Stick society it has said there should be those with differentin views that the view of the free exercise clause stands in the way of the principlender smith applied by the courts below officials have no incentive knowing they would be shielded the flimsiest claim to have a generally applicable law wl stick society is at its best with free exercise that was just those officials in charge. Thank you. Thank you council the case is submitted welcome to the virtual healthcare 20 21 a. M. Sam baker the editor hear from axios think of making this possible and welcome to our audience on you to twitter and axios. Com. Also follow along on twitter