we will hear argument this morning in case number nineteen thousand one hundred and twenty three fulton vs city of philadelphia is windham mr chief justice and may it please the court the court below made a simple error they fail to understand where employment division versus smith controls and where it doesn't seem it doesn't control when the government uses a system of individualized exemptions or when it makes other exceptions that undermine its rules or when it changes the rules to prohibit a religious practice philadelphia made all three of those errors here the city still can't identify a neutral generally applicable law even after six attempts and it now acknowledges its decisions are subjective and individualized yet the courts below still applied smith they even said smith would be a dead letter if petitioners prevailed that demonstrates the confusion and instability smith has caused respondents rather than defend smith ask the court for a newly minted constitutional standard that's even less protective of religious exercise that approach has no basis in the text history or traditions of the free exercise clause city has no compelling reason for excluding catholic social services which is exercised its face by serving at risk children in philadelphia for two centuries nor does it have any interest in refusing to allow the agency to step aside and provide referrals elsewhere yet philadelphia is refusing to place children with loving mothers like sharon l fulton and tony sims bush just because they chose to partner with an agency who shares their face respondents act as if this is a zero sum game either l g b t q couples can foster or fulton in c s s can but the law and decades of experience say otherwise free exercise clause is at the heart of our  another set of rights those recognized in our decision in o'berg are female and whatever you think or however you think that tension should be resolved as a matter of government regulation shouldn't the city get to strike the balance and as it wishes want to come to the setting conditions for participating in what is after all its foster program mr chief justice i don't believe that that analysis should control here for a couple of different reasons this court's precedents make clear that when the government is acting as sovereign using its regulatory authority like when it's applying a citywide fair practices ordinance or the ordinances and look to me and the court does the normal free exercise clause analysis the same thing is true when the city is deciding at the outset who is able to participate in a program so you know you you don't see any difference in terms of the analysis whether it's simply a regulation the city issuing a rule that governs across the board as opposed to part of the rules for participating in a program in other words not in its sovereign capacity but in a  managerial capacity or business capacity this city isn't acting in one of those capacities here and i think a key factor is the fact that they're relying on the fair practices ordinance the fact that they put  there are do think there are different rules in those two different context mr chief justice if you had a situation which is unlikely kumi unlike licensing unlike trinity lutheran or espinosa when the government is managing internal justice counsel following up on the chief justices question this seems to involve both contractual relationships with the city as well as the chief chief point or as a sort of license or program where the city has basically taken over an area and it has certain requirements of the law so the  regulated industry justice thomas it is your honor acknowledge there at the end of the city is trying to regulate an area that has historically been an area of religious practice and so i think that that sets this case apart from many cases the city is citing it's correct they're using regulatory authority they're using sovereign authority or using licensing authority to decide who gets to participate those are cases where this court's precedents have said you do the normal constitutional analysis there's not some special rule and here we're both the old contracts and the new contracts say that we're not an employee or agent of the city the same analysis should apply here as did in looks to me and espinosa and trinity lutheran this is different from a case like say bo and we're trying to reach out as a rd party and tell the city how to run its internal affairs here the city is reaching out and telling a private religious ministry which has been doing this work for two centuries how to run its internal affairs and trying to coerce it to make statements that are contrary to its religious beliefs as a condition of continuing to participate the religious exercise that they have carried out in philadelphia for two centuries  they say all they're asking you to do is evaluate a couple without reference to whether they are same sex or not you've read that it says your objection is to being required to evaluate and provide written indorsements of the same sex relationship but they aren't saying to do that indeed they say add something on to any response you may and say that you do not endorse same sex marriages say that you see what it says so suppose pages forty five and forty six were written right into your  justice pryor i'm going to point your honor to the joint appendix a to tender to eleven and then to thirty seven where that very question was asked and the head of the catholic social services testified that certifying a home of a same sex couple would be in violation of that religious belief that a home study is essentially a validation of the relationships in the home and that a final home study includes a written endorsement of the relevant relationships of the foster parent and the state law as well asks agencies agency to assess the ability of applicants for approval as foster parents what the city is asking c s s to do here is to certify validate and make statements that it cannot make and i'm not aware of any case where this court has said compel speech or coerced religious exercise as long as you can tag a disclaimer on to the end of it respondents certainly haven't cited to any it would be hurtful for c s s and for the couple if any couple ever approached them for them to go into their home assess their relationship to interview them about their intimate relationships and their family and then at the end of that have to say we cannot provide that approval for you and your family c t say they're imposing the requirement does not interfere with you or they can't figure out how does it interfere and so we write forty five and forty six right into your contract word for word and now tell me once again what's the problem in your last answer you just said they can't make you say anything i just that's true but we write forty five and forty six and so you can say something if you want or you don't do if you don't want to just take same sex different sex and put it to the side and say all of them are they qualify what they're still being asked to do is to evaluate assess and approve of a couple under under state law and in their own written report that's something that they have testified that they cannot do and this is also not an unknown or unusual religious belief eleven states have passed laws to specifically alito let me ask you a couple of questions about what's in the record of this case about the facts of the case to be given as far as the record reflects how many same sex couples and so on and the opportunity to be at the time of the referral freeze there were well over one hundred children who are currently being served and over the years there has been thousands who've been served by catholic social services how many children are awaiting placement in foster homes and sold off according to the city of philadelphia at the time when they froze intake for c s s they were two hundred and fifty dollars children who were in group homes who needed to be moved out of those homes and into family homes this is in the best interest of the children it's actually an obligation under state law the commissioner fee to roa it page thirty five thousand two hundred and fifty three dollars of the j a acknowledge that those children were still in group homes and if those children were not going to be moved into homes they're supported by catholic social services one of your main arguments concerns the fact that there are exemptions  the generally applicable wills under the city's policy i'm somewhat uncertain about what the city's final position is about the availability of exemptions what is your understanding of  marital status and familial status that's prohibited by the city's fair practices ordinance and so those are the and the city itself actually deviates from the fair practices ordinance even though it is bound by it when it is making placement decisions in foster care so i'm interested in why you see yourself as a licensee as opposed to a government contractor i understand that many governments throughout the country to these home assessments and certifications internally they hire employees within the government they set up criteria and they're the ones who choose what to certify or family or not so why aren't you any different than a government and so you receiving i've never heard of a license where they pay you to take the license justice sotomayor the city is exercising a licensing authority because it is deciding which foster agencies are able to perform these services in the city of philadelphia but that they go to different that's no different than deciding setting forth a criteria to hire someone to do work for you it's a lovely argument but i'm having a very hard time accepting how when the city sets forth a set of criteria only these people can do this work for me that's not a license that's an employment contract it was handed to contractor by the chin employment contract and the city has been crystal clear that c s s is not its employee or agent philadelphia pennsylvania has chosen to partner  or people who are are being retained to do things for the government where we said the government can set the criteria it wants why are you any different what the city's trying to do here is tell religious groups have been doing this prior to when the city got involved we're going to exclude you you can no longer carry out this work unless you take actions that are contrary to your face that is something that the free exercise clause prohibits that's what philadelphia is attempting to do here philadelphia's and the respondents position here is the dangerous one because we're saying they're saying that even if you're not the employee or agent counting the government i'm sorry counsel i don't have much time but just one last point what is dangerous  the idea that a contractor with a religious belief could come in and say exclude other religions from being families certify families exclude someone with a disability how do we avoid that or exclude interracial couples had just said i ordered the city actually allows agencies to exclude people with disabilities today that's one of the exceptions that they have not exclusion they require an agency to be specialized in that placement if the agency gets the specialization it can become one the agency actually can exclude parents on the basis of require someone to have to be married even same sex or not that's different than placing a child which is covered by the best interest of the child briefly counsel good morning ms was the one to take you back to the chief justice's opening question and give you a hypothetical suppose that there is a state and it doesn't want to operate its present itself so it have to know whether the government's rules there are neutral and generally applicable i believe the free exercise analysis would apply well you know i guess the question that i'm trying to get at is  government in its capacity as a contractor or saying you know something a condition that extremely relevant to the contract in its view and shouldn't the government have a legal way to do that to just say you know it likely to prevail in that case for a couple of reasons one is that unlike here the government's interests are going to be a lot stronger the government there is actually taking something that's traditionally a public function and handing it out to private organizations as opposed to here taking moving in and increasingly regulating and restricting work that has traditionally been private but there are a lot higher getting that government to now if you would excuse me miss wyndham just to put another question on the table i mean there are a lot of things that governments do now that traditionally were done by private organizations religious organizations i mean you could go through you know use homes or homeless shelters a lot of  old philanthropies is now regulated and conducted by the government why should that matter justice kagan because i think that really points up the question in this case does the free exercise clause shrink every time the date said now we want to let that make a difference to you does it take and i think it would make a difference i think the history here is important i think that when you're looking at the government's interest in that case i would be relevant to here the city calls c s s a point of light in its foster care system and it has demonstrated through the years that it can do this work successfully for the children of philadelphia with no detriment to the l g b t q population in philadelphia and i and morning counsel what do we do with the fact that the city seems to be representing to us here and now that the for practices ordinance is bottoming of its own force and the department can't offer any exemptions just of course i think that's a very important fact here because if we're going to take the city at its word there what it means is that we've stepped out of the contracting context now and we are firmly in the regulating context what the city is saying to catholic social services is that it is illegal for you to do this work in the city of philadelphia according to your religious exercise whether you contract with the government or not and how does philadelphia  not be deemed or intended to be an employee or agent of the city and how long has catholic services been engaged in this activity and they've been doing it for two centuries now and what do we do with your de facto exemption argument given the fact that we have a finding by the district court that there are none the district courts area there is an error of law the district court says that it was a generally applicable law is long as it didn't prescribe particular conduct only or primarily when religiously motivated you can see that petition appendix eighty seven dollars and so the district court there had the wrong idea about what counts as an exception what counts to make something not generally applicable and it made an error of law there if we thought that were a finding of fact and we were stuck with it then what would you argue i would argue in that case if the court did think it is a finding of fact that under the court's decisions in hurley and those in a st amendment case the court is going to make an independent review of the record that's particularly pertinent here when we're talking about the words of a contract the words of a city law the words of a state regulation this is the workaday business of the courts to interpret and apply the law and with respect to section a lot too much time expired thank you thank you counsel justice common off thank you mr chief justice and good morning miss wyndham i want to follow up on some of justice alito those questions and just make sure i have some of the facts down here st one hundred stand in philadelphia contracts with about thirty private foster agencies to find and train and support foster families and catholic social services is just one of them as i understand it and nd if a same sex couple ever came to catholic social services catholic social services would refer that couple to another agency that works with same sex couples so that the couple could participate and be a foster foster parents and then there are no same sex couples ever come to catholic social services for participation in this and therefore catholic social services policy is never actually denied any same sex couple the opportunity to be foster parents in philadelphia to make sure that those three facts are accurate and you can elaborate as you see fit that's all correct just as cavanagh and that demonstrates st is that c s s is not going to prevent any same sex couples from being able to foster in philadelphia there are many other agencies out there they're merely asking to be able to step aside and recuse ephesus to aisha never to were ever to arise it also demonstrates the city doesn't have a compelling interest here this is a system that has worked effectively and worked well for many years this is an unnecessary conflict the city of philadelphia had an easy option here which is to allow catholic social services to continue the great work that it's been doing unfortunately because the courts below decided to apply employment division v smith the city thinks it is under no kind of indicated you know that maybe smith should have been applied here any arguing embrace dismissed should be overruled but you also say that you win even under smith because this policy is neither generally applicable nor neutral so if you're right about that why should we even entertain the question whether the overall assessment justice fair you're exactly right that we can and should win this case even under smith the question then to the court will be how it resolves the legal question what guidance it provides to the courts below this court in cases like trinity lutheran espinosa looks to the text history and traditions of the free exercise clause and those make clear that smith is a bad fit smith has called negative results developments since smith was decided to make clear that its prediction has actually not borne out that it is possible for the government to accommodate and partner with religious organizations to do religious exercise  lutheran the court has looked at the non neutrality or targeting but in other cases i think the question should be pretty simple is the free exercise of is the free exercise of religion being prohibited and if so does the government have a compelling reason for doing so here the government does not last question if we did or will smith or frankly even if we didn't let's take this out of the same sex marriage context and put it in the interracial marriage context of justice sotomayor was indicating  example like this what if there was an agency who believe that enter racial marriage with an affair against god and therefore objected to certifying interracial couples as foster family with a entitled to an exemption and if so how  clear in loving in other cases the government has a compelling interest in eradicating racial discrimination so far cry from here where commissioner elise said that the interest is no stronger or no weaker than enforcing any other policy it's hard to imagine the city making that kind of concession in a case involving interracial marriage thank you ms windham you have a minute to wrap up philadelphia will make exceptions to its rules for lots of reasons but not for the reason of is religious exercise or guard less of the legal mechanism that philadelphia uses the bottom line is that c s s is breaking the city's law if it even refers same sex couples to another agency better suited to help them and as a result philadelphia won't place children with sharon l fulton toni sims bush or c s s unless their church changes or violate his beliefs in our pluralistic society a properly functioning free exercise clause is supposed to prevent this kind of unnecessary and harmful conflict there are children in need as loving homes waiting for them neither philadelphia nor smith should stand in the way thank you thank you mr m discriminates against religious exercise for two reasons st the city lacks a generally applicable rule because it seeks to apply a nondiscrimination requirement to c s s despite having exempted comparable secular conduct there by devaluing  malign as does the petitioner on contract provision three point two one which bans a list of objectionable practices but then has at the end this unless an exception is granted by the commissioner in his or her sole discretion as an exception ever been granted under that provision i'm not sure that there's any evidence that one way or the other your honor but i think the  been granted and have been recognized in the record is that the city both requires hollar aides and itself engages in the consideration of protected freights when certifying and placing foster children  in particular under fifty five pennsylvania code three thousand seven hundred and sixty four of the city requires agencies to consider both familial status and disability and certifying foster children and foster parents the city has tolerated racial and ethnic based outreach to her foster parents and then the city itself considers ration disability when placing children all of the federal government of course has an extensive contracting regime and it draws distinctions i think between on the basis of for example disability minority ownership and all that how does the contract rules have to be neutral and generally applicable across the board even with respect to protected status well your honor of the federal government of course the subject a river but so for the purposes of a state government if the state chooses to recognize exceptions to attain that discrimination pr yes did you guys sorry the machine didn't work can you hear me yes yes you're a very well i'd like to follow up on two questions that have been asked the questions of the interracial marriage everything is the same except it's interracial the response so far from your thought has been well it's a compelling interest this is think about other examples that the government wants to contract to a food distributor to supply food on all the military bases and because they are orthodox jews they want nothing to do with ham and don't want to let anybody else they want nothing to do that or consider a religion which says we're bidding on this contract for local transportation and we want men and women to sit separately or we want women to wear headscarves you know in a contracting basis is that your opinion that the  government just has to do that has to give in to the religious belief or not there are i think the question under our submission is whether the government is acting in a generally have a neutral way so if the government has a blanket anti discrimination provision that would be one thing but if as in this case the government has a forced to have an anti discrimination provision but then if south recognizes married exceptions it is generally going to have undermined its compelling interest and it's going to have to explain why you can tolerate deviations from that anti discrimination provision in a whole host of areas where they cannot tolerate a deviation or a religious connotation we can get other people to supply the hand and right here because to use of this we should write an opinion which says discrimination on the basis of race constitutionally speaking is different than discrimination on the basis of gender on the basis of say exactly that didn't for the court say that there are honorable and respectable reasons for continuing to oppose same sex marriage will the court say the same thing about interracial marriage right here on our overdeveloped does say that loving of course didn't say that and never would have said that match is cake in addition also recognized similarly that there are contacts and circumstances in which case couples can recognize and accept that there are longstanding deep seated sincere religious beliefs that oppose same sex marriage and in a pluralistic nation that respects religious tolerance accommodating those sort of religious practices is it does not undermine the compelling interest in the we're tolerating those that religious practice is consistent with the free exercise clause and in a way that if you were dealing with interracial marriage it would not given these we don't reach constitutional questions as a general matter unless we unless we have to that's a strong policy what do the arguments in this case about complicated arguments about exemptions and the new arguments about contracting the question whether catholic social services is more like a regular licensee or more like a contractor say about case under smith that the gov the city has not acted in a generally applicable and neutral way we think that the record to make clear that the city has recognized married exceptions from its anti discrimination provision and that the only that race was important but that the burden on the people who are rejected because of race is an interest that the state could seek to protect that a rejection on the basis of race or any protected category creates a stigma that person and that it's a compelling state interest for the state to have an anti discrimination law on the here for two reasons the st reason is no gay couple is being denied the ability to serve as a foster parent in this situation st as i am not up to you there they are by by dish agency c s s is saying to them i won't certify you it is an independent contractor with the city and the city has said to that couple we won't discriminate against you our independent contractor doesn't want to serve you doesn't want to certify you not on the basis of any of the criteria that the state has set forth you might meet every criteria  i suspect that part of part of that is just natural meaning people gravitate to agencies that are known by their community and so i am sure and this is one of the arguments that was resolved against petitioner here it's not that the agency has that the city has agencies who cater no need to one community it's said some agencies live in a particular community and so more people will come to and from that community well you know or i think respectfully i think it might more reflect the point that justice alito made earlier that i had a couple can recognize and accept that the catholic social services and catholic church has a deep seated sincere religious objection to gay marriage and they don't freak out if you have to ask the service their osprey but on the flip side i think it's important to emphasize that the studies rules do  consider disability when certifying foster parents so foster parents can be denied the ability to serve as foster parents because of their disability so again the city is allowing bad sort of dignitary harm that you honor pointed to and they're saying that sometimes that dignitary harm isn't enough but they're not willing to allow that to happen in this context where it's a totally hypothetical harm and where by enforcing the hypothetical harm the the children they work to serve thank you counsel justice you correctly you said that it is a compelling state interest to eradicate racial discrimination but it is not a compelling state interest to eradicate discrimination on the basis of sexual orientation and i the state interest in one of what eradicate discrimination against gays and lesbians i'm sorry on our team you're responding state interest to try to eradicate discrimination against gays and lesbians is that a compelling state interest so we're not denying the significance of that interest in the abstract philadelphia has a compelling interest and that the city of philadelphia does not because they have undermined that interest by recognizing a series of exceptions and having recognized all those exceptions and no longer have a compelling interest and insisting that the one situation where it exceptions or are there to ready to undermine it and you said that that would come out differently and i'm seeking to find out a reason why the reason why is because because of racial discrimination is he really unique  of ways but a compelling state interest usually allows the state to act as and usually it does right and the question is whether the government has undermined that in st by recognizing exceptions and what i'm reading is that the exceptions but the government is recognized you're going to undermine its compelling interest with the spec the racial discrimination because most of the exceptions no one and even involve race and the only ones that do involve race involve an individualized doesn't get is the ability to discriminate against its contractors on the basis of their religion or religious exercise so the take justice kagan's hypothetical from earlier if you have a prison with prison contractors and it allows prison guards to bring in pay ot it can then turn around and say it won't allow prison guards to bring in a whole lot and with the argument here is the similar that the city philadelphia is allowing all sorts of other exemption for put aside the exemptions argument it would otherwise be identical to a city employee your age in the government's view well no because of the other aspect of this case that we addressed in our brief that masterpiece take shop type arguments that same sex couples in philadelphia simply could not become foster parents and let's also assume there are no exemptions or other statements that are relevant to the analysis in that circumstance would there be any different analysis or result in a case like this i think it would be a significantly harder case because the city at that point would have a interest that isn't presented here namely the interest in ensuring that gay couples in philadelphia would have the opportunity to serve as foster parents but of course that isn't the fact that we have here are the facts we have in this case that there are dozens of foster agencies that are available to serve a couples in the city of philadelphia and there's no evidence that any gay couples ever even frightened to use t s s as agency so on the one hand it was philadelphia's doing here doesn't even help gay couples and what it is doing instead is arming he said that the city recognizes a slew of exceptions but none of them are for the same sex anti discrimination requirement so it's not quite the same thing as granting an exemption say for like sunday that was observance but not saturday that observance that's a more apples to apples comparison so how do we go about identifying what the you know relevant factor is in deciding whether a law is generally applicable exemptions for a variety of those parades now it's true that there is an example of that recognizing the exemption for sexual orientation when i left they could say that for some reason sexual orientation discrimination is the one type of discrimination under which they can abide no exemptions whatsoever even more so than race even more so than disability it reveals that those are comparable traits and they're recognizing exemptions and other contacts for the best interest of the child but here when the children would be better served by recognizing the exemption for c f s allows us to continue to provide it's worth to the refuses to do so that is the sort of lack of religious tolerance and the lack discrimination acquirement carry on and then had another section which permitted them exceptions as the city employees here like in considering race for example in the placement of a child with that be generally applicable and on the same that any discrimination acquirement any i think it present a harder question i think we would still say that in that case in the absence of any argument for why central orientation is the one form of discrimination that can provide any exceptions even more so than race that the city was essentially making a value judgment in the same way that in look to me the city allowed killing for certain reasons but not other reasons you can always imagine parsing out the statute in a different way and sort of gerrymandering the statute so that the provision that's being applied to the religious entity has no exemptions and that it's other stuff provisions that have all the exemption ultimately though the question is whether the government is in order to deny an atomic nation to the catholic church and the statements that have been made by various officials make clear that the reason they're doing that because they view this as some sort of odious anachronism rather than as this court has recognized a clause in every contract or is do with sexual orientation discrimination when carrying out that delegated power that clause contains no exceptions and it applies equally to every f c a religious and secular like  constitution compels a city to give it a different contract there is no precedent for such a thing this is the chief justice said the city's own program and its own words of the state the government has broad powers to impose conditions on contractors that stand in the government's shoes performing government functions mrs wyndham even admitted that the government has more leeway as a contractor she just says c f s isn't one that's all the debate narrows down to and the contract is clear that they are ruling otherwise would insert federal courts into contracting decisions in all fifty states and imperil government services in many spears it means have ca's could discriminate against l g b t kids were categorically against foster parents on gender or religion justice sotomayor asked that question apart from race and i didn't quite hear a response from the other side and this is not a hypothetical the district court's hearing repealed c f s to require a clergy letter showing foster parents are active members of a s as it was targeted for its police the district court found after three days of live testimony that never happened the rd circuit agreed and nothing my friends have said come close to the very obvious and exceptional showing of their of the two court rule requires to child that's a very different stage that set of matching states and we certainly i think i've come across the idea of foster parents and we've said they can request a particular race i'm not sure if we've had the question of the child itself but i do want to say it's context but the question is at least in certain contexts you are comfortable with the concept concept of discriminating in this program on the basis  child matching stage that looks to the best interests of the child life the federal standard and that in all fifty states that doesn't kind of work we exclude anyone it looks all potentially relevant considerations well my friend on the other side is doing is taking one thing  which is the very very narrow limited use of race that's taken into account as part of the best interest of the child which is mandated by state law and i asked the city when if you ever taken race into account they could only find one instance and that was when a kid used racial of this case for if rather than receiving funds from the city or contract thing with the city was a private organization that was right you laid it solely right elated as opposed to the contractual relationship absolutely justice thomas that would be a very different case that because this is the contracting can a circumstance the government has far more leeway in what is actually similar when you heard all of those things about race to the government's reasonable assessments of its interests as contractor and so when you're looking to what is similar and what is different i think it's very important to understand that it's not similar in those to me since the government is saying that that those distinctions made on the best interests of the child are made at a point when their interests are very different it's about matching kids not growing the pool of say foster parents and it's not discrimination the government is saying at that point it's done to protect the welfare of an individual child and there's nothing like the across the board lack refusal that they want to hear and so book if a catholic teen wanted to be with a catholic family at the teen  commit the child matching stage that to be taken into account lots of things can be taken into account at that stage but here we're talking about that st stage is just as the leader that just i'd like to get one question and before my time expires don't you think it's in the best interests of the trot cha to also have a who that is that is beneficial to the child i don't understand why that is also in the best interest of the job oh absolutely are we one hundred percent agree the city's point is that when you enable the n s e a to discriminate on the basis of orientation that will stigmatize the youth that has a compelling interest l g p t kids or an outsize number of people in the foster care population and it'll undermine the ability of the program to operate but absolutely justice thomas one hundred percent agree that a child should be you know that best interest of the child looks to what is the family has ever been turned down by this agency indeed none is ever applaud no gay family no gay couple and the disagreement seems to be that they now have to sign a piece of paper that said there were a gay couple we might have to look into whether they're qualified and you're willing to have them say but taking gay into account you don't have to take it into account at all they don't want to do that that seems to me a really was a problem you have to do something about it like look into it don't think gay and they say we don't even want to do that but it's never come up i mean the natural thing for me to say ok you say what you want will say what we want and if it ever comes up we'll deal with it never have is there any way that had anything to do with how we would decide this case justice prior this has actually come up that never stopped the contract because it thought that c f s was operating within the contract terms they took c f s at its word until they learned otherwise and it was at that point that the city said we're worried about being making the city itself a party to discrimination and even then they didn't declare a breach rather they just said the next annual contract we won't renew because they're telling us after our investigation they won't fulfill the terms of the contract but notably of the twa seventy one million dollars they gave c f s for foster care they took two way for this child who will fight for me the full function but they left the rest intact and to this day c f s is getting twenty six million dollars a year from the city which is hardly something demonstrating religious hostility and that is for foster care and child services so i think the city's took that reasonable limited action and they certainly don't need to wait for an instance of discrimination with respect to persuade us not to take this case you represent affected city have adopted an exemption waiver committee quote to ensure that in the future any request for religious exemption of the sort at issue here would be directed to the waiver s or another religious organization came to the city and sad that we do not wish it is contrary to our religious beliefs to certify a same sex couple there would be consideration some exceptions that can be done under three dollars at the matching stage when the child is matched with an agency but that's really just about d h s making me an individual referral to a particular agency at that really going on here it's not about ensuring that same sex couples in philadelphia have the opportunity to be foster parents it's the fact that the city can't stand the message catholic social services on the archdiocese are sending by continuing to wait here so the old fashioned view about marriage that the case absolutely not justice alito the text of course of all of this doesn't say anything like that as a district court and rd circuit found going to evidence by evidence piece by piece they rejected that idea and i think justice alito the most telling fact about that is right now the city is giving that very energy which are saying that you know do what you're saying that we can't stand in the like twenty six million dollars a year for foster care i think the annual supreme court budget this is a one rd of the annual supreme court's budget we're doing that every single year for this entity well the largest the record reflects know what catholic social services has done has not denied any same sex couple the opportunity to be foster parents and because they would refer are such a couple if one were to come to them from one of the many agencies that is willing to to do what is necessary for them there's no realistic chance that that is ever going to happen but the city nevertheless is willing to cut them off from participating just a patient in this program even if what that means is that there will be foster children and felt there will be children in philadelphia who will be denied the opportunity to have foster parents best when the record shows and that is justice alito three things one we are very happy to talk about the record because we don't think it supports that at all indeed it supports that c s s told us that if this happens this is precisely what they would do it didn't happen with respect to bethany that didn't that was the exact colloquy you and i had many years ago nasa versus nelson when the petitioner said hey there's no evidence of drug abuse you've got to wait for it and your unanimous opinion for the court said no the government can do it doesn't need to wait in order to act and that's particularly so this is my rd point here because here the government has identified the counsel is there any evidence that c f s has not been a part of this program that less children have been placed overall absolutely not just to my ear in fact there's a district court of the record found the opposite and that's also true in other jurisdictions that have adopted nondiscrimination policy such as d c in illinois that only twenty two states briefing the a b a studied this particular issue and found that these nondiscrimination policies increase the available not decrease because he's described the accident or policies of discrimination deter people from entering the pool in the st place have a catholic family numbers reduced since c s s hasn't been a part of this program i don't think we have numbers on catholic specifically but we do have numbers for example from massachusetts some one boston catholic charities withdrew other agencies filled the gap so that there were at least more and more kids in foster care than the now and we certainly welcome the idea of calvin c s s and other catholic entities particular protecting and working with the foster kids that's why we're giving them twenty six million dollars a year to do so we tremendously value what they're doing we were looking for some sort of fight here obviously the city was torn up about it but they looked at the stigma they looked at the need to increase the pool and they looked at the thin thought about the fact that you couldn't  on new requirements to a contract that they themselves signed going to that issue and in terms of tolerance because that seems to be part of the questioning of some of my colleagues and you're addressing it by saying they're scholar and to their work in other areas they're receiving a tremendous amount of money for their work with foster children and all the way looking at this under smith that cool what is when you say there's two different pools one is the pool of can you become an eligible family and then there's a pool of placing a child how do you see smith addressing that i think what smith does is at least in the contracting context give the government wide latitude you want even need it because i think we would win even in the sovereign context but i think the fact you do would you be asking is is this really a similar circumstance at the pool stage or the child matching stage and they're really different interests that's what the government is saying and different harms going across the board flat refusal of the government agency to say hey the doors are closed to you entirely is very different from the sort of individual lives that interests of the child determination that they are focusing on and you know they focus on disability as well that absolutely misstates the record because it's state law that requires foster care agencies have a special license for disability needs that's all that's about to get and that's not discrimination that's specialization to meet a child's needs as any parent been other than disability but that's because they can't be certain quite criteria that independent of their disability they can't do certain things should a child which are required but has there ever been an agency that has or an exemption granted on the basis of a protected characteristic no your honor the one thing that i said and we don't think of it as an exception we think of it as an application of the best interest of the child was concerned about section three point two one of the contract the two thousand and nineteen version of the contract says and i'm quoting here that an agency shall not reject prospective foster or adoptive parents for services based on sexual orientation unless an exception advantage by the commissioner and his or her sole of discretion so why isn't that exactly the kind of exemption that c s s once here easily that as long as there is an exemption as long as it exists as long as you could rely on it in the future that there is no neutrality here will i disagree both on the law and then with respect to the facts with respect to the l your honor to smith doesn't say that the mere existence of the system triggers strict scrutiny that says you can't give exemptions discriminatorily so if the city was exempting secular organizations from nondiscrimination rules on non religious ones that would be would trigger strict briefs thirteen admits that and then the nd thing it does is it says d j s can make an exception to that is this quote providers will not reject a child unless an exception is granted by the commissioner so that's it i would get the child was far away or something like that we're not going to force the f c a to take it but there's nothing about any sort of categorical or classify a classification on race or gender or anything like that with respect to three dollars and it certainly hasn't happened in practice which is stage we're at here was the right the matching stage where the screening stages as i understand it this case is about the screening stage whether catholic services would be eligible to participate in the program at all is that correct well when i say screening i mean parents exemptions at all if ever i correct and that's always been our policy ok and then can can just to follow up on section three point two want to the matching states why is that legally irrelevant here well because it's at a very different stage and at least in the government contracting case it's not similar in the lukumi sense because the city is saying and i think it's a lot of deference under him by our our city interests are different we're about trying to grow the number of maximum interest of the child but nd that's a much more particularized inquiry than again it applies even handedly it just may be that it's in the really rarest of instances like the one example i was able to give you you know you might take a react as as you wish seems like this case requires us to think about the balance between two very important rights recognized by this court the religious exercise and belief right obviously in the st amendment and the same sex marriage rights as recognized in affirmative fell and it seems when those rights come into conflict all levels of government should be careful and should often where possible and appropriate look for ways to accommodate both interests and reasonable ways to vary so you know it's very sensitive controversial there are strong very strong feelings on all sides that warrant respect and it seems like we and governments should be looking where possible for a win win answers recognizing the neither side is going to win completely on these issues given the st amendment on the one hand and given a burka fell on the other but when i look at this case that's not at all what happened here it seems like philadelphia created a clash it seems and was looking for a fight has brought that serious controversy ill fight all the way to the supreme court even though no same sex couple had gone to c s s even though thirty agencies are available for same sex couples and even those c s s would refer any same sex couple to one of those other agencies and to be clear i fully appreciate astigmatic harm i completely understand that only appreciated but we need to find a balance that also respects religious beliefs that was the promise explicitly written by the court a number of fell and masterpiece explicitly promised that respect for religious beliefs and what i fear here is that the absolute is an  extreme position that you're articulating would require us to go back on the promise of respect for religious believers of justice kavanaugh for things st we absolutely agree with you that these are feelings of war respect and you know both of these rights are important and we share that same spirit nd i don't think the framing of this as religion versus same sex equality is the right one the way the city sees this is actually a case about religion versus religion because if you accept what the what their argument is then they will allow you know you could have another associate can say we won't allow baptists we will not buddhists or will only allow those things and in that sense religion will be pitted against religion polestar karajan cs will be balkanized and this will be true not just in foster care but in any number of other areas in which the government contracts rd practically i don't think you can look at this and just say oh this is a small tiny accommodation what's the harm in it because any individual accommodation will look reasonable the problem is as chief justice birch unanimous opinion in the united states versus lee's says once you do it for one objector the court's going to be stuck doing it for all  accommodation there was a pen there was someone objecting to paying social security but the court said income tax will be next and you can have a workable system either for social security payments or now for a few days with so many religious accommodations and then  lastly when you say the city was looking for a fight or something we could profoundly disagree more we certainly wouldn't want this case to the supreme court indeed we won it in both courts below and the st one after a three day hearing looking at live testimony looking at precisely the allegations you said about religious hostility and all of those dissolved do you  be sure that i'm clear and thinking about this question of whether to say that functioning as a contractor or whether it was granting licenses is it possible for any entity to participate and the recruitment and certification of foster families without a contract from the city and so i think that's a very important point about was in this wyndham said she kept on saying we've been doing this for two centuries this private entities have never done this because whatever these entities did before like c s s they never selected who cares for kids in city custody applying state criteria indeed the whole point of the modern foster care system is to bring responsibility for those kids inside the government and not to leave it into the private hands i mean these are words of the state and the city has the highest interest in screening parents so this isn't an example an old something that could be described as a licensee function because a licensee is someone you know with some of the license like to practice law run a barber shop they're not carrying out the government's work they're performing their own work a private per member profession with the permission of the government this is the opposite of that just the spirit this is about the city's own kids and the city's interest here at their zenith let's imagine that the state takes over all hospital and says from now on you know are going to be with possible for hospitals but we will contract with private entities to actually run them and so there is a catholic hospital and get the contract with the city to run it in fact it's a cot a catholic hospital that's in existence before that state policy and its contract with the state provides that there are and the contract the state gives everyone is that you can get exceptions for some medical procedures but every hospital has to perform abortions and honor st this isn't just factually this is not a monopolization case at all contrary to what my friend says after all they still have twenty six million dollars a lion's share of their foster care budget so it's not as if we're occupying the field or something something like that with respect to your hypothetical i think there are two problems one is i think the real thing that does the force of the hypothetical is the government somehow monopolizing a private care system health care system or hospital system that itself would raise any number of constitutional problems and i think our intuitions to why that hypothetical sound so horrible is because of that that's what does the work and i'm going to wrap up mr cocktails i think three things are notable st this case i the this very case the clergy letter and it radiates far beyond foster care to all government contracts in all fifty states nd the city would act the very same way if a secular s c a discriminated and the flipside is true to the city contract with bethany which is open to same sex couples despite its religious opposition and the city continues to contract with c f s to the tune of twenty six million dollars these three indicia a uniform policy continued contracting with bethany and continued contracting with c f s itself are strong evidence the two courts below got it right and finally my friends never overcome the two core rule of neutrality after three days of live testimony the track court found the preponderance of evidence favored the city work it is acting based on traditional religious beliefs and it may appear that the cost of accommodating it would not be too high but that overlooks too serious problems with c f s this claim st c f s is not acting as private capacity to rather as a government contractor its claim therefore implicates the government's managerial interests as well as the imperative that governmental services are made even handedly available to all citizens and nd free exercise claims cannot turn on judicial assessments of whether religious views are honorable or offensive if the constitution requires accommodation here that mr cathy l said all manner of other flounces must be made for foster care and other service agencies and because there is no constitutional difference between a tenant contractors and government employees c s s is position would also imply for example the police officers could decline on religious grounds to enforce particular laws prison guards could insist on evangelizing to inmates the implications go on and on but the upshot is this whatever rules might govern free exercise claims outside of government contracting the city's anti discrimination requirement is constitutional because it is a reasonable rule governing the selection of those who will care for children in the city's custody  mr fischer suppose that the city of philadelphia decides that it doesn't like the message that the church having an all male priesthood message that conveyed it doesn't want to expose foster children to that belief in foster parents and so it terminated c s s's contract because of the church is that true the church belief in that respect are they free to do that either to be too big differences between not in this case mr chief justice number one is a core recognized in havana taper and the like of clergy members of the church in the way that they are structured within the church phrase establishment clause questions and free exercise questions that are entirely different from a government contracting scenario like this on their own terms and nd of all i don't understand any way that that rule would relate to the carrying out of foster care going because of the church's view on it and c s s is is that they think it's stigmatizing that it sends the wrong message for foster parents to belong to an entity that discriminates on the basis of gender no i think that the stigma and the harm that the city is looking to avoid is discrimination with respect to people participating in the program that's very different than the church's own structuring of its own internal clergy and its own internal designated and the placement do you agree with him that both of these are in the have to be looked at in the interests best interests of the child well i think just to be precise justice thomas the state law best interest of the child test applies only at the placement stage that's that unique to the placement state i think of mr castro is saying is of course the city and the state are going to stablish rules for certification for family certification at the outset in the you know in the general interest of children but to specifically speaking the best interest of the child tested comes into matching and and just as under federal if you say statutorily it's only the placement that's in the best interest of the child with the policy behind the sensing the family i think the idea behind assessing the family go to the core of the reason why this is  city program is that these are children in city custody and so the city is a stablish in criteria that are that are going to govern which people are allowed to undertake that you know i mean seriously what are you looking for they're looking for people that can provide care and loving environment and been safe environments to kids and i was doubting for that kind of a family or to me in that ultimately just for the best interests of the child i think that's one way to think about it justice thomas which is why i think mr tatchell answered your question that way i'm just trying to be precise about the way the law works here which is that the standards for certification are laid out in pennsylvania code section three thousand seven hundred point six four and the best interest of the child standard is not present there is simply a list of secular criteria that the agencies are being asked to apply thank you pryor in general what have you thought to be the right rule i mean always thought that math is a problem or a solution to a problem that nobody can figure out how to answer it if your opponents when it's pretty hard to see how all kinds of government programs can exist with every religion making exceptions every which way through every kind of reason sincerely to if you win it's pretty hard to see how for example of a religious group that wants to meet on sunday the only place to hold services that there is  parking sign and they can do it i mean they can't even hold religious services and we can think of a lot of examples like abortion and so forth and that i think is what led justice scalia to that more absolute rule he couldn't figure out that's why i asked the question just to see what's in your mind right just as prior i think that justice scalia for the reasons he laid out of smith itself and of city of bernie concurrence reached a quite reasonable conclusion that is right on its own terms and title effect but the most important thing i would tell you here is that you don't even have to ask that question the court recognized before smith itself in cases like lang and rowley that when we're dealing with internal affairs of a government and its own operations that assembled the different test applies in the test that i would say governs this case which is really quite narrow in this sense because it's a government contracting case is a test the court nate laid out in this nafta versus nelson the court asked where there was a reasonable rule that the government was insisting for  contractors and actually the court in that case he used the phrase internal operations so all you have to do is put nelson together with ling and roy which tell you that the free exercise clause allows the government the same power when it deals with this internal operation know do you think it's fair to say this is simply a government contracting case when social services and other agencies cannot participate in this activity at all and that activity in which licensing case for two reasons we don't think it is justice alito st of even if the city did monopolized the services here it wouldn't be any different than laying for the government owned the land it wouldn't be any different from nasa versus nelson where the government was the only way to work in the space program and the government of justice kagan said earlier can take over certain operations indeed the city is justice one of my worst that could do the certification itself but also i want to answer justice alito in terms of the history and i want to echo what my friend mr catchpole said which is that yes the same term foster care is used it was used historically but it's a completely different program now because the children are in city custody and we're talking about charitable activity would you say that's purely a contract in case i think i might have to hear a little more but in general i do think the government could take over something like homeless shelters in a given county or community i don't think there's any way to draw a line between what the government can and can take over or whatever that is what about just aspirants example of a hospital within the state were to take over all hospitals and then contract that out to private  well i think that it's really hard to imagine exactly how that would work we know health care is such a uniquely complicated context and i think that even in systems where the government does take over health care private options are still available so it's hard for me to scrounge to the contractors so called contractors running these hospitals i think to some degree perhaps justice alito but i think there be very different questions raised about medical procedures and doctors that  certainly have the opportunity to decide which kind of procedures they're going to carry out i think if this were the federal government which i take is what your hypothetical is raising you don't have any number of reference implications that would have to be layered on to a question like that justice soto cases you apply rational basis where the government has taken over a field it should be sure extrude maybe and this goes back to justice parents earlier question about how to define the foster care certification services for children in the cities custody which is something that you can do only through a contact with the city under the terms we're discussing here and there are other things that mr catchpole noted with the foster care program that c s s is allowed to do and there are other private things that c f s can do without even contracting with the city related to adoption and other ways to care for needy children so there are there is no occupying a field here  other than these are the these happen to be the kids who either because of abandonment or abuse have been taken away from their parents that are in the cities custody correct i think that's right but but the thing i would want to make sure i stressed justice sotomayor is that even if the other side were right that the city however you would want to look at this has occupied the field of parental certifications it would make no difference in laying it would make it no different than nelson it would make no difference in our study where the government occupies the field of prosecutions the government occupies the field of law enforcement there are lots of places where the government has reasonably made a determination to carry out a certain service is allowed to establish as nelson put it reasonable rules to carry out that service i have one last question if one wanted to find a compromise in this case can you suggest one that wouldn't do  real damage to all the various lines of law that have been implicated here i think just assume i were the place to start in that respect would be where justice briar started earlier today with the city's concession at pages forty five dollars forty two cents for this brief that is what c f s is concerned about is the perception that by participating in this program they are endorsing marriage for same sex couples that they can just claim that and make an exemption to c s s of course justice kagan let me say one thing about the law and then give you a broad stroke answer and any specifics i'm happy to answer st the st or general i think somewhat strangely tried to put entirely aside the contracting context of this case in asking these questions about general accountability as the court said a number the court has to give reasonable deference to government assessment of its own interest in the contracting space so even in this general took ability context justice kagan i want to stress that the government context ing because i'm sorry the government contracting context is highly relevant to this compare ability inquiry that is required i don't think it's a sort of general even denied that in broad strokes the purported exemptions that the other side points to when it comes to the certification process simply do not exist the closest they've come to talk about disability being taken into account but it's not disability just taken into account  just the criteria that i discuss with justice thomas that are neutral and secular as to the ability to care for a child to which disability is sometimes relevant that leaves child placements and in child placement it's just a different set of rules that appl because that's a different stage of the process and so the key answer there is that the city has reasonably concluded that that's just not a comparable setting because the best interest of the child in matching somebody on a individualized basis kicks in and that's not the scenario at the certification stage where all right asking is whether somebody can care for children and back to the question about a compromise c f s has not disputed that same sex couples are equally able to care for children and so that we think the placement scenario is just entirely different which i'd like you to expand on that just a little bit further mr fisher one of the challenges of smith of course is asking what whether there's an exception and that raises all sorts of questions about what level of generality should we look and what's comparable enough why isn't the three point two one matching process and that contract process sufficiently like the screening process that we should consider it just of course that i think for two reasons i on interrupt but i'll it's a separate legal point that there are different stages of the process formally speaking legally but why why why should we take cognisance of it when we're doing the smith analysis ok well let me answer this way you have to have some disparate treatment of religious reasons or is a secular reason that's what justice alito said in the fraternal order of police opinion that solicitor general relies on it's not ok to let people wear beards for medical reasons but not for religious reasons and so as it is a vocal brave also described it's not just whether in the air there's a possibility for exceptions or distant different differential treatment it's whether you've actually had such treatment because otherwise you just simply don't have a workable system of law thank you just as kavanagh and good morning mr fisher and welcome thank you for your and i want to thank all the parties for their excellent briefs and arguments and all the  amicus briefs which of all been very valuable in thinking through these issues just a couple questions to just confirm a couple things actually here do you agree i assume that catholic social services does important valuable work for vulnerable foster children in philadelphia of course yes and then do you agree that a same sex couple in philadelphia can become foster parents by going to one of the thirty agencies indeed you agree that no same side to same sex couple is ever going to c s s and if they did that they would be referred to one of those thirty agencies to disagree with any of that just of cabinet no i don't to the actual matter but remember that same sex couple was turned away from bethany and that and the caution i would give you to rely too heavily on this thirty agency idea is that remember we don't know how many agencies will discriminate against people based on sexual orientation of religion or other characteristics if it is required to grant exemptions and i don't think the court wants to go down a road of having to count up how many agencies at the end of the day are discriminating on what basis as you yourself asked what if they were just one agency what if they were two or three or five i think that's a really difficult area for the court would have to get into well i agree that arguably the other the response so might be we shouldn't be looking for problems before we confront them fair enough just a scab another remember you don't even get to the set of questions because this is a government contracting case and is the court s you just asked for the government's position here is reasonable and the government has two eminently reasonable interests of seeking to vindicate here one is to treat all citizens equally when people are carrying out the government's own program to not to balkanize its services secondly the government just has a managerial interest as i was just describing if you have to start granting exemptions all of a sudden running a program through the government gets very very hard even to the point where the city might just say the heck with it we're going to take this in house and do it ourselves and i don't think anybody share i had a question about something at some of the amicus briefs product which is the rd party harm principle the principle that religious beliefs can never get a believer in the right to harm a rd party even slightly i'm wondering if you agree with that into situations like this you need to balance the free exercise interests on the one hand against whatever the governmental interests are on the other at least in the abstract so i think that as i was just saying to justice kavanagh you don't get to a balance of the harms in this particular case because it's a government contracting case and all you have to under nelson is whether the government's rule is reasonable but even if you did get to that and even to were relevant whether the earth or pretty hard as i was just describing we would say there are serious governmental harms and there are also private harms we've talked about people being turned away in philadelphia on the amicus brief tell you they're turned away elsewhere but remember there's also a deterrent effect if people are away or that respect it would just make it all the works so i think there are very real harm standard leonard i wouldn't take the categorical view though i want to sneak in one other question i think we would agree that there's really not any circumstance we can think of in which racial discrimination would be permitted as a religious exemption do you think of any example in which saying as in a stat this is done here that they you know long certify same sex couples that where an objection to same sex exercise your friends that we do not judge the legitimacy or the offensiveness of religious beliefs affair deeply felt which as we know from the bob jones case for example some religious organizations do have deeply felt views about interracial marriage i think the court would have to accept them and then the only question would be whether the compelling interest asked applies differently in that scenario and i don't think it would is a matter of just compelling interest law the court has said not just of governments have an interest in eradicating race discrimination but also in jaycee's the court said sex discrimination as we know from last term and box this could be thought of as texas criminalization and so i just don't think you can draw a line in this context between sexual minute to wrap up this  official thank you mr chief justice i think i would just leave you with with the last couple the last point i was making which is i don't think anybody can dispute the just the city wanted to do this work itself it could and so the any only question that you have is whether the analysis is any different because the city is operating through an independent contractor in cases like nelson and laying tell you the answer is no also rusty sullivan a case we haven't yet discussed today tells you the answer is no and so that just leaves the arguments the general's making about neutrality and the like and i think that you're reducible fact in that respect is that the city here but not allowed to raise discriminate i'm sorry we're not allowed discrimination for any reason the district court found this a page eighty a to eighty eight a i don't think anybody really thinks that this kind of activity would have been allowed in a two thousand and eighteen or going forward for any provider for any reason and for that reason we think that this is a case of one way to think about this is a case without equal treatment versus special privileges the city has satisfied the equal treatment requirement and is not required to give special privileges here thank you council of three minutes for rebuttal ms windham thank you mr chief justice three quick points st the discussion this morning has confirmed that philadelphia does not have a neutral and generally applicable law they have waivers and exemptions they let agencies can consider factors that are prohibited under the fair practices ordinance and they don't follow that ordinance themselves philadelphia now admits it's applying its public accommodations law and the analysis would be different if the court analyzed the use of sovereign authority under that law even under smith that triggers strict scrutiny and the city loses nd respondent's ignore the long history of catholic social services doing the work it does today partnering with foster parents to provide children with a family walking with and supporting those family through a years long and difficult process this is the ministry that the city of philadelphia is trying to extinguish the fact that c s s carries out other ministries and provide services at a loss subsidizing the city does not change the fact that the city is trying to extinguish this ministry and it has done so in the most restrictive manner sending the message that sharon l fulton must be excluded because she partners with an agency who shares her faith respondents urged the court to decide some other case not this case they claim all kinds of harms but religious foster agencies continue to serve in most states and multiple states and even protected those agencies by law without negative results long standing protections like refroze protect religious exercise and yes even government contractors respondents cannot identify where their parade of horribles has come to pass finally none of this was necessary at all could have been avoided by a properly functioning free exercise clause the courts are struggling to parse the exact contours of general applicability while loving foster families remain excluded the text history and traditions of the free exercise clause teach that when the government wants to prohibit a long standing religious exercise it needs a compelling reason to do so that's a straightforward approach and philadelphia can't hope to pass it here in our pluralistic society this court has repeatedly said that there should be room for those with different views but smith's narrow view of the free exercise clause stands in the way of that sensible result under smith particularly as applied by the courts below government officials have no incentive to reach sensible accommodations knowing they will be shielded by the flimsiest claim to have a generally applicable law are pluralistic society is at its best when it has a free exercise clause that protects free exercise not just of those who agree with the officials in charge thank you thank you council the case is submitted