Determining how Amy Coney Barrett would rule on religious freedom cases

Many are trying to figure out which way Amy Coney Barrett might rule in cases that have something to do with her Catholic faith, and one of them is coming up. It involves the city of Philadelphia, which has decided that since Catholic Social Services will not place foster children with same sex couples, it will basically tear up its contract with Catholic Social Services. Former Washington Attorney General Rob McKenna joined Seattle’s Morning News to discuss.

“This case is another case where there’s a tension between the rights accorded to one person or group of people and the rights accorded to a religion. The city of Philadelphia is saying we have a policy that prohibits discrimination against same sex couples. They have every right to be considered as potential foster parents. Catholic Social Services will not place children in a foster home that is run by same sex parents. Therefore, we’re going to cut them off,” he said.

“Catholic Social Services is arguing that this is not a neutral policy. You came up with this policy after you found out that we will not conduct home studies for same sex couples or unmarried couples. One of the plaintiffs here is actually a Catholic foster parent who has fostered around 40 children over 25 years. And she’s arguing that her rights as a devout Catholic are being violated because she could no longer work with Catholic Social Services to have children placed in her home. That agency’s contract has been torn up by the city.”

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As Dave noted, the city could argue that if you accept taxpayer money, you have to accept the strings that are attached to it. And if they could make a case that these are the same requirements that would be imposed on any agency seeking to do these home studies, then you can’t argue that for some reason Catholics should get special treatment.

“Well, that is an argument that the city is in fact making. They say this is neutral … Catholic Social Services disagrees, and says this is actually targeting them. Specifically, Justice Amy Coney Barrett is gonna have to decide whether ruling in favor of Catholic Social Services — if she thinks that’s the right thing to do — means they need to revisit the 1990 ruling that her mentor, Antonin Scalia, wrote,” McKenna said.

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“And then you have the following problem, which is why Scalia wrote the opinion he did. He said we cannot allow the anarchy that would result from ‘a system in which each conscience is a law unto itself.’ There are lots of laws that religious organizations are required to follow, like the laws forbidding polygamy, child labor, Sunday closing laws, requiring citizens to register for selective service. You can’t use religious belief to get out of any of those things because those laws apply to everyone.”

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