If you want the glass-half-full view of the Supreme Court’s unanimous ruling in favor of Catholic Social Services in the case Fulton v. City of Philadelphia, read Justice Alito’s concurrence.
Ed Whelan highlights the key lines:
Alito observes that the Chief’s ruling rests “on what appears to be a superfluous (and likely to be short-lived) feature of the City’s standard annual contract” and that, once the city eliminates that feature, “the parties will be back where they started.” Further, the Court’s ruling “provides no guidance regarding similar controversies in other jurisdictions” and “will be even less significant in all the other important religious liberty cases that are bubbling up.”
What Alito calls the “superfluous” and “likely to be short-lived” feature of the City of Philadelphia’s contract is the provision giving the city discretion to grant exceptions to its nondiscrimination policy. This discretionary authority runs afoul of the Supreme Court’s holding in the 1990 Smith decision that a neutral law may infringe on religious liberty only if it is generally applicable.
University of Virginia law professor Douglas Laycock, a leading scholar on religious liberty, argues the unanimous decision is significant in at least a couple respects. Asked to comment on Alito’s concurrence, Laycock tells National Review in an email:
Probably the city would be happy to give up its discretionary power to grant exceptions, which it has apparently never used, in order to shut down Catholic Social Services. Every informed lawyer on the plaintiffs’ side has worried about that from the beginning. But the city may be deterred by the five votes that say Smith was wrongly decided. What’s the point in going right back up if you’re so likely to get an even bigger defeat?
Maybe no other city has a contract clause just like Philadelphia’s. But the Court’s opinion says some important things about the general applicability requirement. Even one exception can make a law less than generally applicable, and therefore subject to strict scrutiny, if it undermines the state’s asserted interest in regulating religion. That was implicit in Smith and Lukumi, but it is much more clearly stated here.
Discretion to grant exceptions makes a law less than generally applicable, even if no exception has ever been granted, because discretion creates the potential for discrimination. Some lower courts have said that, but this is the first time in the Supreme Court. The Court has long invalidated standardless discretion in free speech cases, and the same rule should apply to free exercise, but they had never said that before.
These two holdings do give guidance elsewhere. Of course there will be continued litigation, and attempts to distinguish or minimize these holdings. But these are holdings, and they are important.
Update: This post has been emended and corrected since its initial publication. In the original version of his email, Laycock said the Court also held that “there is no compelling interest in protecting same-sex couples here, because they are fully served in Philadelphia. And the liberals joined that. This passage clearly implies that that fact that gays are angry and offended by the continued existence of CSS does not give rise to a compelling interest.” That was not a holding of the Court in Fulton, and that paragraph from Laycock’s email has been deleted.