Fulton v. Philadelphia (19-123)

argument 19-123

Fulton v. Philadelphia

Supreme Court of the United States 1h 51m 9 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central legal dispute in Fulton v. Philadelphia?

John G. Roberts 0:00

We will hear argument this morning in case number nineteen one twenty three, Fulton versus City of Philadelphia. Miss Wyndham.

Sarah Wynham 0:09

Mr Chief Justice, and may it please the court. The courts below made a simple error. They failed to understand where employment division versus Smith controls. and where it doesn't. Smith doesn't control when the government uses a system of individualized exemptions. or when it makes other exceptions that undermine its rules, or when it changes the rules to prohibit a religious practice. Philadelphia made all three of those errors here. The city still can't identify a neutral, generally applicable law even after six attempts. And it now acknowledges its decisions are subjective and individualized. Yet the courts below still applied Smith. They even said Smith would be a dead letter if petitioners prevailed.

Sarah Wynham 0:54

That demonstrates the confusion and instability Smith has caused. Respondents, rather than defend Smith, ask the court for a newly minted constitutional standard that's even less protective of religious exercise. That approach has no basis in the text, history or traditions of the free exercise clause. City has no compelling reason for excluding Catholic social services, which has exercised its faith by serving at risk children in Philadelphia for two centuries. Nor does it have any interest in refusing to allow the agency to step aside and provide referrals elsewhere. Yet Philadelphia is refusing to place children with loving mothers like Sharon L. Fulton and Tony Sims Bush. just because they chose to partner with an agency who shares their faith.

Sarah Wynham 1:43

Respondents act as if this is a zero sum game. Either LGBTQ couples can foster or Fulton and CSS can. But the law and decades of experience say otherwise. Free Exercise Clause is at the heart of our pluralistic society and it protects petitioners' vital work for the Philadelphia community. I welcome the court's questions.

John G. Roberts 2:05

Oh Miss Wyndham, I This is a case involving free exercise rights, uh but th it's in they're in tension with uh another set of rights, those recognized uh in our decision in Obergefeld. And whatever you think or however you think that tension should be resolved as a matter of government regulation, Uh shouldn't the city get to strike the balance at as it wishes when it comes to setting conditions for participating in what is after all its foster program?

Sarah Wynham 2:39

Uh Mr. Chief Justice, I don't believe that that uh that analysis should control here for a couple of different reasons. Uh this court's precedents make clear that when the government is acting as sovereign using its regulatory authority, like when it's applying a citywide fair practices ordinance or the ordinances in Lakumi, then the court does the normal free exercise clause analysis. The same thing is true when the city is deciding. at the outset who's able to participate in a program. So you don't

John G. Roberts 3:08

see you don't see any difference uh uh in terms of the analysis whether it's simply a regulation, uh uh the the city issuing a rule that governs across the board, as opposed to part of the uh rules for participating in a program. In other words, uh not in its sovereign capacity but in a uh managerial capacity um or you know, at business capacity.

Sarah Wynham 3:34

Uh, the city isn't acting in one of those capacities here and I think a key fact here is the fact that they are relying on the fair practices ordinance. The fact that they put that into the

John G. Roberts 3:44

different rules in those two different contexts?

Sarah Wynham 3:47

Uh Mr. Chief Justice, if you had a situation which is unlike Likumi, unlike licensing, unlike Trinity Lutheran or Espinoza, when the government is managing internal affairs, then the government's interests may be stronger. But here Philadelphia has said that CSS is an independent contractor and is not an employee or agent of the city. That's a contractor.

John G. Roberts 4:09

Justice Thomas?

Clarence Thomas 4:11

Uh thank you, Mr. Chief Justice. Uh counsel um Uh following up on the Chief Justice's question. This seems to involve both contractual relationships with the city as well as As the chief said, regulatory or licensing.