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The Supreme Court this morning spent two hours debating whether the city of Philadelphia can decline to contract with a Catholic organization to place foster children with families if that organization holds religious objections to allowing same-sex couples to participate.

The complicated case pits the general application of discrimination laws against the boundaries of religious liberty. Based on the lines of questioning today, it’s not entirely clear where the Court’s justices will fall.

The case, Fulton v. Philadelphia, revolves around Catholic Social Services (CSS), which contracts with the city to provide a number of child welfare services. Because of religious objections to same-sex marriage recognition, it does not want to screen or certify gay couples as potential foster families and does not place children with them. This violates Philadelphia’s anti-discrimination laws, and in 2018, the city stopped contracting CSS for this service, though to this date apparently no gay couples have actually come to CSS looking to foster kids.

CSS and foster parents connected to CSS have sued for discrimination, claiming that they are exercising their right to religious expression and demanding that Philadelphia restore the contract. The City of Philadelphia argues that this is not a case of religious discrimination—the rules are being applied neutrally and without animosity toward CSS’s religious beliefs. The city’s lawyers point out that CSS is still getting $26 million in annual funding from Philadelphia for the child services they provide. They’ve only cut off the placement contract.

The questioning today probed many different areas about the business relationship between CSS and Philadelphia. Several justices (including newly seated Justice Amy Coney Barrett) questioned whether CSS was a contractor with the city (giving the city more power to set guidelines) or a licensed private partner who provided a service to the city.

That may seem like a strange place to take the discussion, but the reason became clear in Barrett’s line of questioning toward Neal Katyal, the attorney for Philadelphia. The city controls who is permitted to participate in this process of certifying foster parents, which led Barrett to hypothesize a situation where the government takes control of all hospitals but then contracts out with private parties to operate the hospitals. Could the state then say, “You can get exemptions from some medical procedures, but every hospital must perform abortions?”

Katyal’s response was that a government takeover of all hospitals would raise any number of constitutional issues and couldn’t really address the hypothetical. He did attempt to reject the characterization of a city-run foster parent monopoly by arguing that this case involves only those children who are wards of the state. For those children, the government has a compelling interest in establishing and enforcing neutral guidelines about who qualifies as appropriate parents, including same-sex couples.

Much was made of the fact that CSS’s refusal to accommodate same-sex couples does not actually stop these couples from becoming foster parents. CSS is just one of 30 agencies working with foster children in Philadelphia and nobody could find any examples of same-sex parents in Philadelphia being unable to actually become foster parents.

But the city’s attorneys argued that if Philadelphia allowed CSS to cite religious belief for an exemption from its anti-discrimination law, then there could potentially be a domino effect of religious organizations seeking exemptions to discriminate for a whole host of reasons, including the possibility that they’d turn away couples of different faiths. The justices and the lawyers all seemed to agree that the Supreme Court would reject any attempt to use religion as an excuse to deny adoption opportunities to interracial couples. But now the court must contend with real religious conflicts raised by recent Supreme Court decisions mandating same-sex marriage recognition and forbidding workplace discrimination against gay and trans people, and several justices noted back in those rulings this conflict was coming. How do these sincerely held religious convictions intersect with government contract rules?

Justices Samuel Alito and Brett Kavanaugh were both most vocally on CSS’s side. Alito said this dispute stems from Philadelphia not being able to “stand the message that the Archdiocese and CSS are sending” by not wanting to work with same-sex couples. Kavanaugh accused the city of “looking for a fight” and failing to consider a balance between religious rights and same-sex marriage rights with the way they’re enforcing the anti-discrimination law. Katyal resisted this characterization, noting that they had won in the lower courts and that the attorneys representing CSS are forcing the fight.

Toward the end of oral arguments, Justice Sonia Sotomayor asked attorney Jeff Fisher, who was representing nonprofits who agree with the city’s position, if there was a possible compromise here—a strong suggestion the justices really don’t want to establish a big precedent, given the complicated nature of this case and foster care and the different policies that come into play when screening parents versus matching children to homes. Fisher noted that the city was not asking the CSS to endorse same-sex marriage when it certifies that a same-sex couple meets the city’s standards for becoming foster parents and can include a disclaimer as such.

Lori Windham, representing CSS and foster parent Sharonell Fulton on behalf of the Becket Fund for Religious Liberty, is pushing the Supreme Court to reconsider the 1990 precedent Employment Division v. Smith, which held that the government is generally not violating a person’s free exercise clause by enforcing laws as long as such laws are neutrally applied.

While the Smith decision, written by Justice Antonin Scalia, was discussed throughout today’s hearing, there didn’t really seem to be a lot of interest in going so far as to reverse the ruling. It is, however, clear that several justices, including Barrett, are concerned that this case could end up having wider implications for religious liberty regardless of which way they rule. That suggests the possibility of a very specific, narrow ruling and not some new precedent.

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The most expensive ballot initiative campaign in Massachusetts history ended with a resounding victory for property rights as voters approved the so-called “right-to-repair” ballot initiative.

With more than 96 percent of precincts reporting by Wednesday afternoon, nearly 75 percent of voters had approved Massachusetts Question 1. The initiative’s passage means that car manufacturers will be required to provide vehicle diagnostic data to consumers and independent mechanic shops. Voters in the state approved a similar right-to-repair ballot measure in 2012, but this year’s election closes a loophole that auto manufacturers had been using to skirt the requirements established by that earlier vote.

The state’s existing law—which became the basis for new national standards implemented by the auto industry in 2014—required that vehicle diagnostic data was made available via an open platform. In short, that means that if you own a Toyota, you don’t have to go to a Toyota-affiliated repair shop to find out why your “check engine” light is on. Any repair shop can plug a device into any car and read the data.

But the earlier law exempted wireless data transmitted via a car’s telematics system. Increasingly, car manufacturers have been relying on telematics to transmit crucial data, potentially leaving independent repair shops in the dark. The new ballot initiative closes that loophole and requires wirelessly transmitted data to fall under the same open platform rules starting in 2022.

What might seem like a technical adjustment to a pretty uncontroversial rule, however, turned into a major political battle in the state. The Massachusetts Right To Repair Coalition, a campaign group formed by independent mechanics and national car repair chains like Auto Zone and O’Reilly Auto Parts, dumped more than $24 million into the race. The Coalition for Safe and Secure Data, a group backed by Ford, General Motors, Toyota, and other car manufacturers, spent more than $26 million opposing the initiative.

Much of the campaign centered around sensational accusations that the initiative’s passage would allow cars to be remotely hacked for nefarious reasons. Even the National Highway Traffic Safety Administration waded into the fight, warning in a letter to lawmakers in July that Question 1’s passage would create “an incredible amount of danger.”

Even though there are “some genuine concerns that increasing access to a car’s data could set the platform up for cybersecurity vulnerabilities,” Reason’s Scott Shackford explained last month, “that’s an argument about being careful with technological development, not an excuse for depriving consumers of access to the data produced by the vehicles that they own.”

Consumers should have the right to control the data created by the products they own—and that’s true not only for automobiles. Consider the outcome of this expensive ballot initiative fight in Massachusetts to be one more small victory for freedom on an Election Day where that was an under-the-radar trend.

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While the final vote count is not yet known, I am happy to report that there have been good results on at least three of the four important California ballot measures that I discussed in this post. California voters overwhelmingly rejected Proposition 16 (which would have legalized racial, ethnic and gender preferences) preferences in admissions to state universities, and the hiring of government employees and contractors. They also rejected Proposition 21, which would have expanded rent control in the state. On the other hand, they voted for Proposition 22, which exempts app-based transportation and delivery drivers (like those work for Uber and Lyft) from California’s terrible AB 5 law, which forces employers to classify these and many other “gig economy” workers as full-time employees. All three of these results appear to have been decided by large double digit margins.

The vote is still too close to call on Proposition 15, which would eliminate some key limitations on property taxes. But as of the time I am writing this post, the “no” side has a narrow lead of about 3 points, with over 70% of the vote counted. If that lead holds up, it too would be a good result.

In my previous post on these ballot measures, I explained their broader significance for the nation, as well as for the state of California. I am a particularly hopeful that the defeat of Proposition 21 will break the momentum of the broader national movement to expand rent control, and that the success of 22 will undermine efforts to pass imitations of AB 5 in other states or—worse still—enact a nationwide version.

NOTE: As indicated in my last post, my wife Alison Somin has been involved in efforts to oppose Proposition 16. Her employer, the Pacific Legal Foundation, has represented plaintiffs in litigation challenging the constitutionality of AB 5. I do not have any financial stake in either effort, and my views on both issues are ones I have held since long before Alison took a position at PLF in May of this year. But I disclose this information for the sake of transparency, and to avoid any imputation that I’m somehow hiding a conflict of interest.

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As the final votes continue to be tallied in elections across the country, Democrats are likely to keep their House majority, though hopes of surpassing the GOP in the Senate dimmed on election night as several key Democrat-leaning toss-up races were either called for or led by incumbent Republicans. Such results could set the scene for a divided government, with the Senate acting as a powerful check on a Joe Biden administration should he win the presidency.

In one swing race, Sen. Joni Ernst (R–Iowa) handily bested her Democratic challenger, Theresa Greenfield, earning 52 percent of the vote to Greenfield’s 45 percent. Ernst had been down consistently in the polls, though she came out on top in a final survey before election night. In the presidential race, the state went for Donald Trump.

Perhaps more surprisingly, Sen. Susan Collins (R–Maine) defeated Democrat Sara Gideon in a win that was called Wednesday afternoon. And though the victor of the North Carolina Senate race is yet to be determined, Sen. Thom Tillis, a Republican, has a two percentage point lead over Democrat Cal Cunningham.

To some degree, Collins’s win and Thillis’s likely victory are an indictment of the polling strategy: Virtually every poll showed the two behind their competitors, as if their losses were a foregone conclusion.

Democrats were able, however, to flip two Senate seats: Former Colorado Gov. John Hickenlooper took a seat from Sen. Cory Gardner (R–Colo.), and Mark Kelly bested Sen. Martha McSally (R–Ariz.) for her seat in Arizona.

In Alabama, Republican Tommy Tuberville defeated Sen. Doug Jones, a Democrat, flipping one of the state’s Senate seats back to red, as was expected.

Long shot goals for Democrats included wins in South Carolina and Kentucky, though Republican Sens. Lindsey Graham and Mitch McConnell both won out over their challengers early in the evening. Sen. Steve Daines, a Republican, claimed victory in Montana, pushing back a bid from Democratic Gov. Steve Bullock. The fate of the Georgia race between Republican Sen. David Perdue and Democratic challenger Jon Ossoff is unclear, though as of this writing Perdue holds a 4-point lead. 

If the toss-up races continue to trend in the current direction, Republicans would secure a 52–48 majority—one seat fewer than they currently have, but a majority nonetheless.

Neither Joe Biden nor Donald Trump have been able to claim victory. On Wednesday afternoon, Biden was up in Wisconsin, Michigan, and Nevada with a chunk of mail-in ballots yet to be counted, which typically tilt in favor of Democrats. If Biden ekes out a win, a GOP Senate potentially provides a better outcome than what much of the chattering class predicted: that Biden would enter the Oval Office with a Democratic Senate and House in tow, allowing him unfettered ability to fulfill his full list of $11 trillion campaign promises.

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