The Court’s unanimous judgment in Fulton v. City of Philadelphia yesterday is yet another resounding victory for religious freedom and against religious discrimination. Remarkably, particularly given the voting pattern of the liberal bloc in cases involving sexual orientation, all nine justices agreed that Philadelphia violated the free-exercise rights of Catholic Social Services (CSS) when it refused to contract with the agency unless it agreed to certify same-sex couples as foster parents.
The Catholic Church had served Philadelphia’s needy children for over two centuries, and for over 50 years, CSS was able to contract with the city to provide foster-care services while adhering to its religious beliefs. No same-sex couple had been denied the opportunity to be foster parents, but the city’s Department of Human Services informed CSS that it would no longer refer children to the agency after the Philadelphia Inquirer reported on the Archdiocese of Philadelphia’s long-standing position. The city later tried to justify its decision by the terms of its contract with CSS, which included a nondiscrimination clause and was subject to certain exceptions granted by the department’s commissioner, as well as by a nondiscrimination ordinance.
Chief Justice Roberts’ majority opinion concluded that the case was not an appropriate vehicle to revisit the Court’s narrow interpretation of the free-exercise clause in Employment Division v. Smith (1990), which held that an individual’s religious beliefs did not excuse compliance with an otherwise valid, neutral law of general applicability even where it burdened such beliefs. The Court’s opinion rejected the argument that the ordinance applied to CSS because it was not acting as a public accommodation, and it found that the contract’s mechanism for making exceptions rendered it “not generally applicable.” That rendered Philadelphia’s burdening of religious exercise unconstitutional under another free-exercise precedent in Church of Lukumi Babalu Aye v. Hialeah (1993) without exploring whether to overrule Smith.
But five of the conservative justices joined separate concurrences expressing significant interest in revisiting or outright overturning Smith. Thomas, Alito, and Gorsuch argued explicitly for overturning Smith. Justice Alito’s lengthy opinion is a must-read exploration of free-exercise history and jurisprudence that concluded that Smith should be replaced by the standard that had preceded it: “A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.” Justice Barrett also wrote a brief concurrence joined by Kavanaugh that noted in the first paragraph the “serious arguments that Smith ought to be overruled” and added, “In my view, the textual and structural arguments against Smith are more compelling.” Justice Kavanaugh joined this concurrence, and Justice Breyer refused to join that paragraph while signing on to the rest of the concurrence. So, for the first time since Smith was handed down, a majority of the Court has signaled their disagreement with it. So what is the future of Smith? It seems to me that litigants are asking for defeat if they rely on it. As Ed Whelan noted, Fulton “lays foundation for overruling of Smith, much as his [Alito’s] opinion in Harris v. Quinn laid foundation for overruling of Abood in Janus.”
For perspective on the current state of jurisprudence on the First Amendment’s religion clauses, consider the many years spanning the Warren Court, the Burger Court, and the Rehnquist Court in which the establishment clause was used by the Supreme Court as an excuse for treating religion with suspicion and accordingly shrinking the right to free exercise. In School District of Grand Rapids v. Ball (1985), the Court invalidated two programs in which public-school teachers offered secular classes in religious schools, fearing that they would “subtly (or overtly) conform their instruction to the environment in which they teach.” Six of the seven Republican appointees on the Court voted to strike down at least one if not both of the programs.
What a difference a few decades makes. With Fulton, the Court has added to a string of victories that have made it the most protective of religious liberty in history, including Roman Catholic Diocese of Brooklyn v. Cuomo (2020), Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020), Our Lady of Guadalupe School v. Morrissey-Berru (2020), Espinoza v. Montana Dept. of Revenue (2020), Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), and Trinity Lutheran Church of Columbia v. Comer (2017), to name just a few. Of course, this victory will be most immediately felt by the heroic foster parents and the children placed by religious agencies that have been serving them for so long.