Justice Barrett Asks Some Key Questions

 

JUSTICE BARRETT: Good morning, Mr. Fisher. I have a question about something that some of the amicus briefs brought up, which is this third-party harm principle, the principle that religious beliefs can never give a believer the right to harm a third-party even slightly.

I'm wondering if you agree with that and, if so, if you could tell me where in law the principle comes from.

 My response:

The answer is always stigmatic harm, that if even one foster agency "discriminates" against same-sex married couples it will harm the dignitary interests of same-sex couples and LGBT children in the foster system. Even though no same-sex couple has ever been denied participation in the program, and even though CSS will refer same-sex couples to one of the 30 other agencies who are happy to certify same-sex foster parents.

But doesn't it also create stigmatic harm to Catholics and other persons of faith when Philadelphia refuses to allow CSS to continue in a ministry it has been performing for more than 200 years? Does this cause dignitary harm to CSS and to Catholic children in the foster system and to Catholic families who would like to work with CSS to become foster parents? Indeed, isn't the dignitary harm even worse when Philadelphia's non-discrimination policy is a de facto sign saying practicing Catholic are not welcome to serve in this program.

Always look for harm on both sides of the controversy. What rule would minimize the harm for everyone?

Now this question from Justice Barrett: 

JUSTICE BARRETT: Well, let's imagine that the state takes over all hospitals and says from now on, you know, we are going to be responsible for hospitals, but we will contract with private entities to actually run them.

And so there's a Catholic hospital and gets a contract with the City to run it. In fact, it's a --a Catholic hospital that's in existence before the state adopts this policy.

And its contract with the state provides that there are --in the contract the state gives everyone is that you can get some exceptions for some medical procedures, but every hospital has to perform abortions.

In that context, do we analyze this as a licensing question, or, given that the Catholic hospital can't even enter the business without this contract, do you still say that this was the provision of a contractual service?

 

 Me:

This really isn't a hypo given the government's near monopoly role in funding health care. Could the government contract with hospitals who wish to participate in Medicare, Medicaid, and Obamacare and say if a hospital wishes to participate in these health care programs it must not discriminate against abortion, sterilization, and gender transition surgery?

What should be the role of the Free Exercise Clause in the massive Welfare/Regulatory State?

What are your thoughts? Must Catholics and other ministries either change their beliefs about the sexual revolution or get out of the business of providing charitable services such as adoption and health care?