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Brett Kavanaugh shows his hand during Supreme Court religious liberty case – and it’ll chill you to the bone

Patrick Kelleher November 5, 2020
Brett Kavanaugh

Brett Kavanaugh (Chip Somodevilla/Getty)

Supreme Court justice Brett Kavanaugh has suggested that it is “absolutist and extreme” to require a Catholic foster agency to place children with same-sex couples.

The Supreme Court heard arguments on Wednesday (4 November) in Fulton v City of Philadelphia, a case surrounding Philadelphia-based adoption and foster care agency Catholic Social Services (CSS) that insists it should be allowed to turn away same-sex couples and still receive taxpayer funding.

The city of Philadelphia stopped referring children to CSS in 2018 after it emerged that the agency would not allow foster children to be placed with same-sex couples. CSS has argued that the city’s decision infringed upon its First Amendment right to religious freedom.

The Supreme Court must now decide whether government services can require taxpayer-funded agencies to act in a way deemed to “directly contradict the agency’s religious beliefs”.

The United States’ highest court – which now has a 6-3 conservative majority since Amy Coney Barrett filled the seat of the late Ruth Bader Ginsburg – heard arguments in the case on Wednesday, and Kavanaugh did not hesitate to make his stance known.

Brett Kavanaugh said the city of Philadelphia was ‘looking for a fight’.

Brett Kavanaugh claimed that Philadelphia was “looking for a fight”, according to media reports.

“What I fear here is the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers,” Kavanaugh told the city of Philadelphia’s lawyer Neal Katyal, according to Bloomberg.

Katyal told Kavanaugh that the city was “torn up” about dropping CSS, and said they acted proactively after another agency turned a same-sex couple away because of their sexuality.

“The city took that reasonable limited action and they certainly don’t need to wait for an instance of discrimination with respect to this particular entity,” Katyal said.

Elsewhere, conservative chief justice John Roberts said the Catholic agency’s rights were “in tension with another set of rights”, and referred to the 2015 Obergefell case that led to the legalisation of same-sex marriage across the United States.

“Shouldn’t the city get to strike the balance as it wishes when it comes to setting conditions for participation in what is, after all, its foster program?” he asked Lori Windham, lawyer for the CSS.

What I fear here is the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers.

However, he later referenced a city policy that allows children to turn down the chance to be placed with a same-sex couple, saying the policy suggested the city was “comfortable with the concept of discriminating… on the basis of sexual orientation” in some instances.

Meanwhile, newly appointed conservative judge Amy Coney Barrett posed a hypothetical question, asking Katyal what would happen if a state took over all hospitals and required private groups to perform abortions.

Katyal responded by telling Barrett that she was theorising about a monopoly, and said the city of Philadelphia has not monopolised the foster care system.

LGBT+ campaigners are concerned about the potential result – and the precedent it would set.

The Supreme Court is expected to issue its ruling by late June – but many LGBT+ groups are deeply worried about the result, and what it could mean for queer rights.

If the court finds in favour of the adoption agency, it would set a precedent establishing that religious freedom overrides discrimination protections in law.

Needless to say, the Trump administration has sided with the Catholic agency in the case, filing a brief in June arguing that the agency should not be punished because of its belief that marriage is between a man and a woman.

The intervention from Trump’s department of justice, which was entirely unprompted, has worried LGBT+ rights activists.

The Supreme Court hearing comes just weeks after Barrett was controversially appointed by Donald Trump despite the looming presidential election.

The Catholic and conservative judge filled the seat of liberal powerhouse Ruth Bader Ginsburg, who fought tirelessly to advance the rights of women and other minority groups throughout her lengthy career.

Ginsburg died on 18 September in Washington DC.

More: Amy Coney Barrett, Brett Kavanaugh, philidelphia, religious liberty, supreme court

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