In two decisions two days after the Colorado judge’s decision, the Roberts Court was up to its old split-the-baby routine. The first was in another religious-liberty case in which the short-term result favors conservative desires. All nine justices agreed that the city of Philadelphia improperly discriminated against religion when it “stopped referring children to [a Catholic foster-care program] upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage.”
Again, though, the court ruled on narrow grounds.
Rather than wholeheartedly affirm the Catholic organization’s religious-exercise claims, the court ruled in Fulton v. Philadelphia that the city’s system failed because it allows individual exceptions to its “non-discrimination” policy, and that if exemptions are discretionary, it means the policy itself is not “generally applicable” in a way that lets it disfavor religion. Notably, Justices Amy Coney Barrett and Brett Kavanaugh not only agreed to this narrower ruling but also filed a concurrence expressing at least some skepticism about the extent and force of the broader religious-liberty claims sought by conservatives.
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