Supreme Court grapples over Catholic organization’s fight against nondiscrimination law

The Supreme Court on Wednesday heard a dispute that pits religious rights against nondiscrimination protections for LGBT people, in a case that could give one of the clearest signals yet of the newly 6-3 conservative court’s direction.  

The nine justices seemed split along predictable ideological lines over the question of whether Philadelphia could impose a non-discrimination requirement on a religious organization that is opposed to same-sex marriage.

The lawsuit arose after Philadelphia ended its foster-care partnership with a Catholic social services organization. The city severed ties after learning that the Catholic group refused to place foster children in the homes of gay couples, in violation of Philadelphia’s non-discrimination ordinance.

The group, Catholic Social Services (CSS), represented by the nonprofit Becket Fund for Religious Liberty, brought a lawsuit in federal court. The organization alleges that the city has unfairly targeted the religious contractors whose sincerely held objection to gay marriage is protected under the “free exercise” clause of the First Amendment.

The conservative justices, including the newly sworn-in Amy Coney Barrett, appeared sympathetic to the Catholic group, repeatedly noting that CSS has yet to turn away a gay couple and that there are other fostering services in the city that would allow LGBT families to adopt.

Justice Samuel Alito accused city officials of targeting the Catholic church for its religious views. 

“if we are honest about what’s really going on here, it’s not about ensuring that same sex couples in Philadelphia have the opportunity to be foster parents,” Alito said. “It’s the fact that the city can’t stand the message that Catholic social services and the Archdiocese are sending by continuing to adhere to the old fashioned view about marriage.”

The three liberal justices, meanwhile, appeared concerned about potential widespread discrimination from government contractors if the court were to allow an exemption to Philadelphia’s policy for CSS. 

“What is dangerous is the idea that a contractor with a religious belief could come in and say, exclude other religions from being families … exclude someone with a disability … or exclude interracial couples,” said Justice Sonia Sotomayor.

Neal Katyal, a former acting solicitor general under the Obama administration representing Philadelphia in the case, argued that if CSS were to prevail before the high court, it would have far-reaching consequences and “opens the door for all kinds of claims” to allow various forms of discrimination. 

“It radiates far beyond foster care to all government contracts in all 50 states,” Katyal said. 

The case is one of the first major tests on social issues for the court’s strengthened conservative majority. 

Last term, the 5-4 majority sided with religious conservatives in three major cases. They upheld the Trump administration’s expansion of religious or moral exemptions from the Affordable Care Act’s birth control mandate, expanded immunity for religious institutions from workplace discrimination lawsuits and ruled that religious schools cannot be excluded from state-financed private school scholarship programs.

It’s unclear when the court will rule on the case argued Wednesday. A decision could come as late as June, when the current term ends.