Looking For A Fight

Jeffrey Radhaus
Nov 13, 2020 · 6 min read
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Brett Kavanaugh shakes hands with Pope John Paul II in 2001. Courtesy: whitehouse.gov.

The day after the election, on November 4, 2020, the Supreme Court heard the case of Fulton v. City of Philadelphia by telephone. As I discussed in my preview of the oral argument, Blessing Bigotry, the issue in Fulton is whether Catholic Social Services (CSS) has the right, based on religious belief, to violate Philadelphia’s nondiscrimination policy by refusing to place foster children with same-sex couples.

Court watchers often try to glean the outcome of cases by listening carefully to the questions that the justices pose to the lawyers. Some justices — like Chief Justice John Roberts — are sometimes hard to read because they ask tough questions of both sides. On November 4, many court watchers focused on the questions asked by newly-appointed Justice Amy Coney Barrett. If nothing else, she provided an interesting contrast to Justice Brett Kavanaugh.

At her confirmation hearing, Barrett had said that a Supreme Court justice cannot “walk in like a royal queen and impose their will on the world.” At the Fulton argument, she earnestly asked the lawyers whether the case could be decided without the Court overruling its own precedent. Meanwhile, Justice Brett Kavanaugh steamrolled over the precedent, essentially asking, what’s the big deal? The justice who bellowed at senators during his confirmation hearing also declared that Philadelphia should not be “looking for a fight.”

What’s The Big Deal?

Kavanaugh set out his view of the case in his first round of friendly questions to CSS counsel Lori Windham. He suggested that CSS is entitled to discriminate against same-sex couples because those couples can go to other foster care providers in Philadelphia who abide by the city’s nondiscrimination edict.

“[I]f a same-sex couple ever came to Catholic 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 foster parents,” Kavanaugh stated. It was not really a question so much as a recasting of the facts. Windham, of course, was quick to agree. “There are many other agencies out there,” she said.

In other words, what’s the big deal?

One reason it’s a big deal is that such an approach is incompatible with the 1990 Supreme Court opinion in Employment Division v. Smith, which was authored by the late Justice Antonin Scalia. In Smith, Scalia reviewed the Court’s precedent on the free exercise of religion and concluded that the Court has “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Scalia noted that if you made an exception based on religious belief, then “this would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

The Court in Smith therefore ruled against litigants who were denied government benefits because they had used peyote during a Native American religious ceremony in violation of a law banning the use and possession of peyote. To put it differently, in Smith, the Court did not say, “what’s the big deal if a few Native Americans want to smoke peyote as part of a religious ritual?” Rather, the Court stated, in essence, if we let this go, then anyone can choose to disobey any law in the name of religion.

Count Kavanaugh as a vote to overturn Smith.

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Chief Justice Roberts administers the oath to Amy Coney Barrett. Credit: credit: Fred Schilling, Collection of the Supreme Court of the United States.

What About Interracial Couples?

Justice Barrett, who has been called “Scalia’s heir,” did not appear as eager to overturn Smith. Instead, she seemed to be leaning toward the position of the Department of Justice, which asserted that the Court did not even need to address Smith because Philadelphia’s nondiscrimination policy “is neither generally-applicable nor neutral.” She asked Windham why the Court “should even entertain the question” of overruling Smith. Windham, while agreeing that CSS could win even under Smith, stated that Smith “is a bad fit” and “has caused negative results.”

But Barrett, unlike Kavanaugh, seemed to understand why overturning Smith would be a big deal.

“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. “Would they be entitled to an exemption and . . . if not, how is that distinguishable from CSS’s refusal to certify children to couples in same-sex marriages?”

Windham replied that interracial couples should be treated differently than same-sex couples because the government has a “compelling interest in eradicating racial discrimination.” This seems to suggest that there are different tiers of bigotry, and that while racism is unacceptable, bias against LGBTQ couples should be tolerated in the name of religion.

Looking For A Fight

Kavanaugh’s most Trumpian moment came when “questioning” Neal Katyal, counsel for the City of Philadelphia. In fact, Kavanaugh did not even pretend to put his statement in the form of a question, but instead declared that he had a “bigger picture thought to express.” That bigger picture thought was that Philadelphia had no right to defend its nondiscrimination policy.

“It seems like Philadelphia created a clash, it seems, and was looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court,” Kavanaugh asserted, “even though no same-sex couple had gone to CSS, even though 30 agencies are available for same-sex couples, and even though CSS would refer any same-sex couple to one of those other agencies.”

To hear Kavanaugh describe this case, one would think that it was Philadelphia that had sued CSS; that it was Philadelphia, not CSS, that refused to accept its loss after a trial; that it was Philadelphia, not CSS, that after losing again in a unanimous decision by the U.S. Court of Appeals for the Third Circuit decided it would appeal all the way to the Supreme Court and directly challenge clear Supreme Court precedent holding that religious belief is no excuse for disobeying a generally-applicable law. It also strains credulity to suggest that the elected officials of Philadelphia wanted to engage in a high-profile legal fight with the Archdiocese of Philadelphia.

Despite the galling nature of Kavanaugh’s “question,” Katyal did not take the bait. Instead, Katyal began by responding to Kavanaugh’s “what’s the big deal?” view of the case that he had pitched to CSS counsel Windham.

“I don’t think you can look at this and just say — ‘oh, this is a small, tiny accommodation, what’s the harm in it?’ — because any individual accommodation will look reasonable,” Katyal explained. “The problem is . . . once you do it for one objector, the Court’s going to be stuck doing it for all.” This is, after all, the rationale of Smith: if you start making exceptions based on religious belief, then everyone has the option of disobeying the law in the name of their religion.

Only at the end of his response did Katyal address the preposterous notion that the respondent City of Philadelphia was appearing in the Supreme Court — not because it was dragged there by CSS — but because it “was looking for a fight.”

“And then, lastly, when you say the City was looking for a fight or something, we couldn’t profoundly disagree more.” Katyal stated. “We certainly didn’t rush this case to the Supreme Court. Indeed, we won it in both courts below and the first one, after a three-day hearing looking at live testimony, looking at precisely the allegations you said about religious hostility, and all of those dissolved.”

While Katyal was responding to Justice Kavanaugh, it was clear that he was speaking to the justices who actually might go his way. Perhaps Justice Barrett? Kavanaugh was way beyond reach.

Jeffrey Radhaus

Written by

America has an abundance of believers but not enough thinkers. Follow me on twitter at @jeffradhaus

I Taught the Law

Lawyers, law professors, students, and other legal professionals bring you the untold stories of the rules, institutions, and people that govern our lives (without too much legalese).

Jeffrey Radhaus

Written by

America has an abundance of believers but not enough thinkers. Follow me on twitter at @jeffradhaus

I Taught the Law

Lawyers, law professors, students, and other legal professionals bring you the untold stories of the rules, institutions, and people that govern our lives (without too much legalese).

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