Last week, the Supreme Court returned to the question it dodged in Masterpiece Cakeshop: what happens when LGBTQ+ anti-discrimination measures conflict with an entity’s religious freedom claim?

The City of Philadelphia contracts with Catholic Social Services (CSS) for the certification of foster parents for children in state custody and maintains a contracting relationship with CSS for other services. The City learned that CSS would not certify same-sex couples for foster care placement and, because discrimination on the basis of sexual orientation violates the City’s Fair Practices Ordinance, the City stopped referrals for certification to CSS but continued contracting with it for other services. CSS and two foster parents sued, alleging that the City had impermissibly burdened the free exercise of their religion. (CSS also alleged establishment clause, speech, and state RFRA violations.) The City prevailed in the federal district court and in the Third Circuit.

Much of the attention surrounding the case has focused on whether the Court will take this as an opportunity to overturn Employment Division v. Smith, which held that neutral laws of general applicability burdening religious exercise need only survive rational basis review. Laws that create a system of individualized exemptions are controlled by Sherbert, which Smith modified: if the government has substantially burdened free exercise, strict scrutiny applies and the law survives only if it is narrowly tailored to achieve the government’s compelling interest.

Petitioner CSS argued: (1) Smith should be overturned and, under Sherbert, the City’s actions do not survive strict scrutiny; (2) even if Smith remains good law, it does not control because the City does make exemptions in its anti-discrimination enforcement in foster care contracting, so CSS still gets Sherbert strict scrutiny; and (3) CSS should be considered a licensee, so the City does not get the more deferential standard that it would if CSS was merely a government contractor.

The Justices’ questions focused on government contracting, whether the system was one of exemptions, and the nature of the City’s interest.

On government contracting, the City argued that the case should be resolved narrowly in its favor on the grounds that CSS is a government contractor that has been delegated power to carry out foster care and thus the City’s rule must merely be reasonable.  To find otherwise would be to open the door to all kinds of discrimination in government contracting including, for instance, the risk of governments being forced to contract with foster care agencies that will not certify Catholics as foster parents on religious grounds. Conservatives like Justices Gorsuch and Kavanaugh focused on how long CSS had been operating, framing this as an intervention to stop CSS from carrying out its mission rather than as an instance of the government getting to decide how a party standing in its shoes carries out the government’s work. Counsel for CSS argued that the free exercise clause cannot shrink every time the government expands and Justice Barrett honed in on this point by asking the City what should be the rule for Catholic hospitals if the government took control of hospitals, contracted out their operation, and there was a law that every hospital provide abortions. The City distinguished this by saying the instant case was not one of monopolization and that it is monopolization that gives that hypothetical its force.

On exemptions, the City rejected CSS’s characterization, explaining that while a protected characteristic under the ordinance like disability may be taken into account when considering the best interest of the child at the placement stage, this was separate from the certification stage for individuals applying to be able to become foster parents, in which there were no exemptions to the City’s anti-discrimination policy. Furthermore, disability was only taken into account to the extent that state law requires a special license for fostering children with disabilities and this is not discrimination but is instead specialization to meet a child’s need. Furthermore, Smith, the City argued, did not say that there cannot be exemptions but rather prohibits those exemptions from being given out in a discriminatory fashion (i.e. the government cannot provide relief to someone who abstains from work on Saturday for family reasons but reject relief for the Sabbath observer abstaining from work).

On the nature of the City’s interest, Justices Kavanaugh argued that it was the City that had created the clash by not accommodating CSS in this single instance and that CSS had never been approached by a same-sex couple for certification. The City countered that any single accommodation would always look reasonable on its own so this would be an unworkable standard. The City explained that there was a strong interest against stigmatization, which it must vindicate regardless of whether same-sex couples approach CSS, and that the Court has never found that the government must first wait for something to occur before prohibiting it. The City characterized its interest as two-fold: maximizing the number of families who can foster children in state care and preventing discrimination. On the latter point, CSS and several conservative justices attempted to distinguish among different types of anti-discrimination interests to show that, even under Sherbert’s strict scrutiny, the City would lose because its anti-discrimination interest was not compelling. When asked whether, under CSS’s proposed rule, the City could refuse to contract with agencies that stated they had a strongly held religious belief against interracial marriage, CSS argued that Loving and other cases made it clear that the government has a unique interest in preventing racial discrimination and that the Court had not said the same about LGBTQ discrimination. Justice Alito stated that the interest in preventing discrimination against LGBTQ people must be less compelling than preventing racial discrimination because, in Obergefell, the Court found that there were “honorable and respectable reasons for continuing to oppose same-sex marriage” but the Court would never say the same thing about interracial marriage.

This line of questioning—and the more general free exercise challenge posed by this case—shows the limitations of not just Obergefell but of other more recent LGBTQ victories, like Bostock this summer. Justice Alito stated that the entire debate over whether Smith controlled showed just how much “stability” the current regime lacked and thus counseled in favor of reaching the broader constitutional question of overturning Smith rather than avoiding it. While CSS is likely to prevail before the Court’s new conservative super-majority, it is unclear after oral argument that a majority of justices were willing to go as far as Justice Alito and use this case to overturn Smith when there are clear off-ramps to avoid doing so, especially because of the complication of CSS’s contracting relationship with the City. But, if it finds that Smith does not control, the Court will only strengthen the argument against Smith’s workability and make it more likely that, in a case with cleaner facts, Smith will be overturned.

(Oral arguments are available here.)