Jun 23, 2021

Supreme Court rules on same-sex couples and adoption.

Supreme Court rules on same-sex couples and adoption.

Plus, a question about Amy Coney Barrett.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free or subscribe for Friday editions, and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 11 minutes.

The Supreme Court’s ruling on same-sex couple adoptions. Plus, a question about Amy Coney Barrett and our mugs and stickers are finally here!

President Donald Trump with Amy Coney Barrett. Many observers have been waiting to see her impact on the Supreme Court. Photo: White House

Reader feedback.

Responding to yesterday’s newsletter on the mayoral race, NYC radio host Frank Morano wrote in and asked, “why are you saying the Republicans are ‘without a viable candidate’ without citing any poll data to support that? I can tell you the response Curtis [Sliwa] gets in every corner of this city is like nothing I've ever seen from a political candidate in my entire life. It seems to me that the papers have just decided he's not viable, without any polling data to that effect… Don't get me wrong. I know he's a long shot. It just seems like the press is trying to place their thumb on the scale rather than present both sides equally.”

Note: Sliwa handily won the Republican primary yesterday and will now face off with the winner of the Democratic primary in New York City’s general election on November 2.

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Quick hits.

  1. The Biden administration will narrowly miss its July 4 goal to have at least one dose of the vaccine in 70 percent of American adults. (The Washington Post)
  2. Senate Republicans used the filibuster to block debate on a bill to overhaul federal elections. The vote was 50-50, with all Democrats voting to move forward and all Republicans opposing. (Associated Press)
  3. Texas Republicans will renew their push to pass a bill that would restrict voting access after Democrats walked out of a legislative session to prevent the vote earlier this month. (Houston Chronicle)
  4. Eric Adams has a commanding lead in New York City’s Democratic mayoral primary, with Maya Wiley in second place. Andrew Yang has conceded and dropped out. Final results could take weeks to tally. (The New York Times, subscription)
  5. The pro-democracy Hong Kong newspaper Apple Daily will close this week after the Chinese government froze its assets. (Financial Times, subscription)

What D.C. is talking about.

The Supreme Court. The justices have made a number of significant decisions in the last week (we will give coverage to a few), but one of the most talked-about was its ruling in Fulton v. City of Philadelphia.

In that case, the city of Philadelphia had suspended referrals to a Catholic foster care organization that refused to certify same-sex couples as potential foster parents. After Philadelphia officials refused to work with the Catholic Church-affiliated agency, Catholic Social Services (CSS) sued on the grounds their First Amendment right to free exercise of religion was being violated.

The court ruled 9-0 in favor of Catholic Social Services. Justice John Roberts wrote in the ruling that “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

Crucially, though, the conservative justices on the court did not go as far as some expected. The justices decided that foster care certification did not fall under the city’s anti-discrimination ordinance because it is not “readily available” to the public. Roberts explained that the service does not qualify for the anti-discrimination precedent, as a restuarant or hotel would, because it already requires meeting a specific set of criteria for approval.

A “six-justice majority left intact the Supreme Court’s 1990 decision in Employment Division v. Smith, which held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone,” SCOTUS Blog added.

In this case, Chief Justice Roberts said the city’s nondiscrimination laws did not qualify as “generally applicable” because the city’s foster contracts reserved some right to make exceptions. City officials offered “no compelling reason” why the city “has a particular interest in denying an exception to CSS while making them available to others,” Roberts said.

Below, we’ll examine some reactions from the right and left on this ruling.

What the right is saying.

The right is happy with the unambiguous nature of the ruling, but wishes the court had gone further in protecting religious exercise by overturning the 1990 precedent that allows infringement on free exercise so long as a law is generally applicable.

The Wall Street Journal editorial board said “the faithful are owed more under the First Amendment.”

“The facts in Fulton v. Philadelphia show who is the cultural and legal aggressor. The Catholic Church has been caring for Philadelphia’s orphans since at least 1798, long before foster care was a government service,” the board said. “Catholic Social Services (CSS) has operated under a city contract for 50 years. No gay couple has ever asked CSS for certification as a foster family. Twenty-seven other groups meet that need.

“This was the state of play until 2018, when a newspaper quoted the archdiocese’s spokesman as saying that CSS couldn’t certify a hypothetical gay couple seeking its services,” it added. “A city commissioner lectured CSS that ‘things have changed since 100 years ago,’ and ‘it would be great if we followed the teachings of Pope Francis.’ The city then refused to renew CSS’s contract. Foster parents sued, including Sharonell Fulton, a black foster mom who has cared for 40 children over 25 years.

“The good news is that no Justice took Philadelphia’s side,” it concluded. “But it’s hard not to read the Court’s narrow opinion, written by Chief Justice John Roberts, as another example of his mode of seeking consensus by watering down principle. He wants to win over liberal Justices and he is reluctant to take the heat from overturning even dubious precedents. But the cost is less protection for religious belief that is increasingly under siege by the state.”

In The National Review, Kathryn Jean Lopez called the ruling a “gift for children” and pluralism.

“From a conservative point of view, the concurring opinion from Samuel Alito, Clarence Thomas, and Neil Gorsuch would have been the way to go,” she wrote. “But in some ways, this is much better. Because a decision was made that brought people from different perspectives together in defense of religious liberty and the vulnerable children of Philadelphia. We didn’t need every religious-liberty problem solved in one decision; we needed to get Catholic Social Services back at work certifying and supporting foster families, for the sake of children.

“The Fulton ruling suggests that we can, in fact, work together for the good of children, even when we disagree on some fundamental things,” she added, quoting the opinion: “‘Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.’ Thank you, majority opinion! This is how we live together, protecting religious freedom, even when we have fundamental disagreements about the nature of marriage and the human person.”

In USA Today, Jonathan Turley said that for a “hopelessly divided” Supreme Court, they sure seem to agree on an awful lot.

“The most striking aspect of the decisions was the absence of ideological divisions. Indeed, the case on religious rights is yet another unanimous decision from a Court that President Joe Biden has declared ‘out of whack’ and Democratic leaders have declared hopelessly divided along ideological lines. This week represented the final collapse of the false narrative that has been endlessly repeated like a mantra in Congress and the media.

“It is a major win for religious rights and the Court spoke as one in reversing the lower courts with a strong majority opinion and concurring opinions,” Turley said. “The Court continues to frustrate critics who insist that it is dysfunctional, divided and needs to be radically changed from packing the Court with a liberal majority to actually creating a new court for constitutional rulings like the Fulton case… The Court itself does not engage in such public campaigns. It speaks through its opinions and the message could not [be] clearer. For a hopelessly divided ideological Court, it seems to be saying a lot in one voice not just about the law but about its own institution.”

What the left is saying.

The left is concerned by the ruling’s implications but relieved that the court didn’t go further than it did.

In The Los Angeles Times, Erwin Chemerinsky said the court is giving people a license to discriminate.

“The underlying issue is one of profound importance,” Chemerinsky wrote. “There is inherently a tension between liberty and equality. Any law that prohibits discrimination limits the freedom to discriminate. For over a half-century, the Supreme Court has found stopping discrimination to be more important than protecting a right to discriminate. In fact, in Newman vs. Piggie Park Enterprises in 1968, the court described as “patently frivolous” a challenge to the 1964 Civil Rights Act, which prohibits race discrimination by places of public accommodation, on the ground that it interferes with the ‘free exercise of the Defendant’s religion.’

“At the oral argument in Fulton, Breyer and Kagan asked whether Philadelphia could refuse to contract with a social services agency that refused to place children with interracial couples because of its religious beliefs,” he added. “The lawyer for Catholic Social Services immediately said the city could refuse to contract because that involved race discrimination, whereas this case concerns sexual orientation discrimination. But there is no basis for this distinction: There is a compelling government interest in stopping both forms of discrimination.”

In Slate, Mark Joseph Stern called it Roberts’ “greatest judicial magic trick.”

“Chief Justice John Roberts’ skills as a judicial magician are well known, but his performance in Thursday’s Fulton v. Philadelphia may be his finest trick yet,” Stern said. “Somehow, Roberts was able to create a six-justice majority to hold that Philadelphia violated the Constitution when it ended its contract with a foster care agency that turns away same-sex couples. He united the three liberals together with Justice Amy Coney Barrett and Brett Kavanaugh in support of a taxpayer-funded agency’s ability to discriminate against gay people. At the same time, Roberts affirmed that preventing anti-gay discrimination is a compelling state interest. And, to top it all off, he upheld a landmark precedent that a supermajority of the court apparently wants to overturn. We may never see a more masterful display of constitutional prestidigitation.

“And what about Philadelphia’s Fair Practices Ordinance, which bars anti-gay discrimination in public accommodations?” Stern asked. “Roberts simply announced that foster care agencies are not a ‘public accommodation’ because they involve ‘a customized and selective assessment.’ As Gorsuch pointed out, this definition of a public accommodation is nowhere to be found in any state statute; instead, ‘the majority just declares it—a new rule of Pennsylvania common law handed down by the United States Supreme Court.’ Despite Roberts’ dubious logic, it’s easy to see why the three liberal justices signed onto his opinion. First and foremost, the decision does not imperil most LGBTQ non-discrimination laws, which usually lack an exception that would trigger strict scrutiny.”

In a CNN opinion piece, Joan Biskupic said that John Roberts, Amy Coney Barrett and Brett Kavanaugh “demonstrated their collective power.”

“The latest developments suggest a possible 3-3-3 pattern, with Roberts, Barrett and Kavanaugh at the center-right, putting a check on their more conservative brethren who regularly push to overturn precedent,” she wrote. “Justices Samuel Alito, Clarence Thomas and Neil Gorsuch on Thursday in the Philadelphia case argued for reconsideration of a 1990 Supreme Court case so that religious believers might more readily win exemptions from anti-discrimination mandates and other government regulations.

“They agreed with the bottom-line judgment of the Roberts majority against Philadelphia,” she noted. “But the three conservatives disagreed with Roberts' narrow legal reasoning. Roberts' opinion, joined by Barrett [and] Kavanaugh, was tied to the conditions of Philadelphia's contract. Roberts also noted that other private foster agencies in Philadelphia certify same-sex couples. In an unusually lengthy 77-page statement, Alito, joined by Thomas and Gorsuch, declared ‘After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.’”

My take.

This is a really difficult case for me.

The obvious emotional response  — the thing that bleeds through everything else — has nothing to do with the law. It’s that I find it disheartening beyond words that Catholic Social Services (CSS) wouldn’t place a foster child in a home with a gay couple on the grounds of religion. There are over 420,000 children in foster care in the United States — and over 122,000 waiting to be adopted, according to data from 2019. To prevent these kids from having a loving, caring home on the grounds of same-sex marriage is (to me) a moral abomination. I also think it’s a flawed argument from a religious perspective, but that could be a whole other newsletter. Some of my closest friends are gay, some of them are eager to become parents, and all of them would be fantastic guardians and mothers and fathers. When I read this story I see their faces, and it’s heartbreaking.

Further, the simple construction of discrimination here is that straight couples in Philadelphia have access to all city adoption agencies while gay couples do not. In that sense, it’s a pretty black and white example of discrimination, and it’s being sponsored by the federal government.

The trickier part of what’s happening in Philadelphia is that the real-world impact may be different. When Philadelphia stopped working with CSS, there was no gap filled. CSS has done incredible work housing children for centuries, and it essentially went empty overnight. At a time when so many kids are going unadopted, the fight for the rights of gay parents may have actually caused the total number of available prospective homes in Philadelphia to shrink. In fact, that’s precisely what Justice Roberts argued (convincingly) in his opinion: including CSS in the pool of foster care agencies would increase the number of prospective parents, and the city was reducing that pool by not working with them (thus failing to prove their interest was adding more foster parents).

I also have a deep attachment to religious liberty. It’s one of the issues I am more “right” on than many liberals I know. On my dad’s side, my ancestral line runs through generations of Quakers back to Roger Williams — who is considered the father of the doctrine of separation of church and state and one of the most influential people in the establishment of religious freedom in American history.

Religious liberty, and the free exercise thereof, is crucial to American life. And it serves a tremendous amount of good by preserving the freedoms not just of something like the Catholic Church but of religious minorities and individuals who are promised the right to exercise their own religious beliefs (within reason).

The tension here is real, and very American, but the unanimous decision should not be taken as a sign that the justices all agree. I think Mark Joseph Stern’s read is accurate: the liberal justices saw an opportunity to avoid a cataclysmic ruling for LGBTQ rights and took it.

Still, the details of the Catholic Social Services boundaries are headspinning: for one, it doesn’t discriminate only against gay couples. It also doesn’t allow unmarried couples as foster parents. That is at least consistent, but conversely, it does not object to certifying individual gay people as single parents. There’s also the simple fact that no gay couple has ever sought certification as a foster parent from Catholic Social Services. Which, to The Wall Street Journal’s point, illustrates that this was plainly an aggressive move from the city of Philadelphia to make an example out of CSS, and no practical increase in the number of available parents was going to come of it.

The oddity of where I land looks something like this: CSS is making an unethical and ultimately deleterious decision for children by not certifying gay couples, but the practical impact of that is, so far, apparently zero (since no gay couple has ever sought certification through them). This ruling is a reasonable middle ground that preserves critical LGBTQ rights (by not overturning the 1990 precedent) while also signaling that CSS were the victims of an aggressive action that would impede expression of their religious freedoms. It makes me tremendously uncomfortable that CSS can simultaneously receive a government contract while discriminating against gay people, but it’s also true that shutting them down is almost certainly a net negative.

What do you do with a case like this? In my perfect world, CSS would willingly expand its tent without government intervention to allow the certification of gay couples (and unmarried couples!) as some other religious organizations do. The court’s answer seems to have handed a small win to religious groups without a deep cut to the protections for LGBTQ folks. And so the tension lives on.

Your questions, answered.

Q: A while back, you wrote pretty confidently that Amy Coney Barret would mean the end of the Affordable Care Act. The Supreme Court just upheld it 7-2, with Barret voting in the majority. What do you make of that?

— Gerald, Stevens Point, Wisconsin

Tangle: I was wrong. And so were a lot of other people.

To be fair to myself: while I framed Barrett as a threat to the Affordable Care Act, I did also say that she “is qualified and far less predictable as a judge and lawyer than most make it seem.” I also generally endorsed her as a pick, given her credentials and obvious qualifications. But, yeah... I got a bad read on it. And a lot of pundits who confidently predicted her placement on the court meant the Affordable Care Act was going to die were (so far) off-base as well.

But it’s a good reminder. Every pundit in the game has done their fair share of politicizing the court and predicting how justices were going to rule, and now we are witnessing this court take a whole new shape (as Joan Biskupic’s op-ed notes, maybe a 3-3-3 split). Justices are not predictably political, though. And they’ve continued to break from expectations for as long the court has existed.

While it’s true that I got it wrong along with a few others, I do want to note two things: first, say plenty of seasoned op-ed writers were skeptical of claims Barrett would help end the ACA. Conservative writer Ramesh Ponnuru confidently predicted she wouldn’t. Jon Healey of the Los Angeles Times also expressed skepticism that she was a threat to the ACA. So, points to them. Bad on me. Don’t believe everything you read!

Second, I’ll just note that the fight probably isn’t over. This challenge was considered the weakest of a number in the system, and it’s possible that — down the road — Barrett does rule on a way that damages or ultimately repeals the Affordable Care Act, in which case we’ll have to revisit this.

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A story that matters.

While much of the national attention has been on new bills restricting voting access, several states are actually expanding it. The coronavirus pandemic changed voting rules across the U.S., and in some places those changes are becoming permanent. Nevada and Vermont will both continue universal mail-in voting. Several other states are making no-excuse mail-in voting permanent. Kentucky codified early in-person voting for the first time, and California could move to an all-mail election too. “Altogether, the changes mean that millions more Americans will receive mail ballots in future elections, and the number could balloon even more if backers in California successfully switch the state to a universal mail voting system.” (Politico)


  • 54%. The percentage of Republicans who think critical race theory “negatively affects society,” according to a new Morning Consult poll.
  • 13%. The percentage of Democrats who think critical race theory “negatively affects society,” according to a new Morning Consult poll.
  • 48%. The percentage of Democrats who said they “didn’t know” or “didn’t have an opinion” on critical race theory’s impact on society.
  • 33%. The percentage of Republicans who said they “didn’t know” or “didn’t have an opinion” on critical race theory’s impact on society.
  • 53%. The percentage of Americans who approve of the way the Supreme Court is handling its job.
  • 43%. The percentage of Americans who disapprove of the way the Supreme Court is handling its job.

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An anonymous customer in New Hampshire bought a couple of chili dogs, fried pickle chips and drinks at the Stumble Inn Bar for $37.93, then left a $16,000 tip. The monster gratuity went unnoticed at first, until the customer insisted they “don’t spend it all in one place.” A staffer flipped over the credit card statement to find the shocking tip, and immediately thought it was a mistake. The customer insisted it wasn’t, and also asked to remain anonymous. The staff decided to split the money up, and included the kitchen staff, too. (Boston.com)

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