What do goat-herding Anglican nuns have in common with a Baptist prisoner on death row and a Sikh serving in the Marine Corps? The answer isn’t on a Laffy Taffy wrapper. It’s in the decisions of the U.S. Supreme Court — and one landmark case that protects their religious exercise: Fulton v. City of Philadelphia.
First, a recap on Fulton: In 2021, a unanimous Supreme Court protected a Catholic foster-care agency’s ability to serve families and foster kids in the City of Brotherly Love without having to violate their religious beliefs about marriage. Fulton narrowed the Court’s 1990 decision in Employment Division v. Smith, which had held that “neutral laws of general applicability” that “incidentally burden” religious exercise typically do not violate the free-exercise clause. The Fulton Court held that a law is not “generally applicable” if it has exemptions — or even the potential for exemptions — that undermine the law’s purpose. Such a law is subject to strict scrutiny rather than Smith’s deferential review. And the law probably can’t survive strict scrutiny because those same exemptions also undermine the government’s asserted reasons why it can’t offer a religious accommodation.
Now, back to the nuns: A few years before Fulton, the State of New York began mandating that employers cover abortion in their employee health-insurance plans. Unsurprisingly, that created a problem for many religious groups whose faith teaches that unborn human life is precious. In Diocese of Albany v. Harris, a diverse coalition, including Anglican and Catholic nuns, brought a free-exercise claim. Despite the many exemptions in the abortion mandate, New York refused to accommodate religious groups such as the Carmelite Sisters, who run nursing homes for the elderly poor of all faiths and none. The New York State courts ignored these exemptions, found the abortion mandate to be neutral and generally applicable, and dismissed the case.
The religious groups, represented by the Becket Fund for Religious Liberty and Jones Day, asked the U.S. Supreme Court to review the case. And while the cert petition was pending, the Supreme Court decided Fulton. That led the Court to “GVR” Diocese of Albany — that is, grant the petition, vacate the state court’s judgment, and remand the case for the state court to reconsider in light of Fulton. Justices Thomas, Alito, and Gorsuch would have granted the petition outright and heard the case immediately without sending it back to the New York court first. So it’s safe to say the Court thinks that Fulton has something to say about New York’s abortion mandate.
Yet somehow New York hasn’t gotten the message. Back in state court, New York is arguing that Fulton has changed nothing about free-exercise law and has no effect on whether the various exemptions to the state’s abortion mandate undermine its general applicability. By the state’s telling, Fulton applies only to “a standardless exemption with no defined criteria, thus facilitating unbridled discretion.” The ACLU’s amicus brief tracks the state’s cramped reading, claiming that Fulton is irrelevant unless a law contains a “formal system of entirely discretionary exceptions.”
New York’s narrow reading of Fulton echoes the damage-control talking points from opponents of robust religious liberty in the hours following the Fulton decision. Americans United for Separation of Church and State called Fulton an “extraordinarily narrow” ruling that “turned on the specific facts of the case.” A writer at Slate called it a “narrow opinion, which hands a symbolic victory to religious freedom while deciding almost nothing.” Perhaps cheekiest, the Human Rights Campaign said Fulton was “not a complete victory” . . . for Philadelphia.
So how do we cut through the spin and see Fulton’s true impact on the law? All it takes is a Westlaw subscription. Nearly three years and 300 court citations later, the effect is clear — and anything but narrow. Fulton has played a key role in protecting religious freedom for Americans of varied faiths across a raft of scenarios. To name just a few:
- Military: In Singh v. Berger, the D.C. circuit ruled that Sikhs cannot be barred from Marine Corps recruit training because of their religious beards, turbans, and other articles of faith. What case showed that the Marine Corps’ other exemptions from uniformity for medical beards, tattoos, and women’s hairstyles undermined its insistence that it can’t accommodate religion? Fulton.
- Prisoner religious freedom: In Ramirez v. Collier, the Supreme Court ruled that a death-row inmate was entitled to have his pastor minister to him at the moment of his execution. Quoting Fulton, the Court rejected the government’s reliance on speculation to satisfy its strict scrutiny burden.
- Student association rights: Fulton was critical to two circuit courts recognizing that religious student groups have a First Amendment right to choose leaders who share their religious beliefs. Religion-hostile deans and principals have long felt that CLS v. Martinez gives them a free hand to regulate religious student groups, particularly in the Ninth Circuit. But in Fellowship of Christian Athletes v. San Jose Unified School District, the en banc Ninth Circuit reversed course, recognizing Fulton as part of new “bedrock” free-exercise law.
- Parental rights: Courts have relied on Fulton to find free-exercise violations when public schools interfered with parents’ ability to direct the religious and moral formation of their children. In one case, school policy required teachers to conceal a student’s gender transition from the parents. In another, the school allowed a teacher to indoctrinate first graders with extreme ideologies relating to sex and gender without parental notice or opportunity to opt out.
- Abortion mandates: Like New York, California requires employer health-insurance plans to cover abortion. When a group of pro-life churches brought a free-exercise challenge, the district court dismissed their case, concluding that the abortion mandate was neutral and generally applicable. But after the Ninth Circuit remanded the case for reconsideration in light of Fulton, the district court reversed course and granted the churches a permanent injunction under Fulton.
Not so narrow after all.
The New York Court of Appeals will hear oral argument in Diocese of Albany v. Harris tomorrow. If New York doesn’t acknowledge Fulton’s impact on free-exercise law, you can bet the Supreme Court will.