Yesterday, Nov. 4, the Supreme Court heard Oral Argument in Fulton v. City of Philadelphia. Professor Doron Kalir was quoted extensively by Business Insider about the case. As Professor Kalir explained, the case pitted the interests of same-sex couples, who wish to be considered for foster parenting much like any other couple, with the interests of a catholic foster parenting service, which refused to acknowledge the right of same-sex parents to be foster parents. The city of Philadelphia refused to continue its contract with Catholic Social Services, and they sued.
This clash — between the right to equality guaranteed by the 14th Amendment, on the right hand, and the right to free exercise of religion, guaranteed by the 1st Amendment — is “as big as they come in terms of legal battles,” explained Professor Kalir. Kalir was concerned that some of the gains earned by LGBTQ persons in Obergefell — which recognized the constitutional right to same-sex marriage — will be scaled back by the new case.
To top that clash — which the Court has previously entertained, but refused to resolve, in Masterpiece Cakeshop (2018) — petitioners also asked the Court to overrule Employment Division v. Smith, a seminal 1990 case that defined the relation between general-applicable laws and their possible interference with free exercise of religion. Such overruling would place the newest Justice on the Court, Justice Amy Coney Barret, in the challenging position of possibly overruling one of the major opinions authored by her mentor, Justice Scalia, in her very first case on the Court.
The interview can be found here: