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Emory Law News Center

SCOTUS: Fulton and the future of free exercise

Shlomo C. Pill |

For decades, many Americans have been seeking a reversal of the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), where the court held that laws burdening religious practice are subject to only rational basis review so long that they are neutral, generally applicable, and do not discriminate against or target religiously motivated conduct. Smith reversed the court’s prior First Amendment jurisprudence that subjected all laws burdening religious practice to strict scrutiny. See Sherbert v. Verner 374 U.S. 398 (1963). Many Americans expressed indignation over what they perceived as the court’s refusal to adequately protect religious practice. Since Smith was decided, Congress and 23 states have responded by passing Religious Freedom Restoration Act (RFRA) statutes that resurrect the Sherbert test at a legislative level, requiring governments to demonstrate that actions burdening religious practice are necessary to serve a compelling state interest.

For many proponents of broad religious liberty protections, however, RFRA legislation is not enough. Over the last decade, RFRA laws have come into conflict with LGBTQ rights, abortion and contraception rights, and other issues with increasing frequency. As the cultural tides ebb and flow, some Americans have expressed concerns that relegating robust religious liberty protections to the legislative sphere risk forcing religious Americans to embrace in word or deed values repugnant to their deepest ecumenical commitments. Therefore, there has been sustained pressure for the court to reconsider and perhaps overturn Smith, restoring more robust Sherbert­­-era constitutional protections for religious free-exercise.

For many opponents of the Smith test, Fulton v. City of Philadelphia, 593 U.S. __ (2021), argued and decided following the appointment of Justice Amy Coney Barrett and the cementing of the court’s religiously conservative majority, offered an ideal opportunity.

Fulton arose from the City of Philadelphia’s decision to stop referring children to Catholic Social Services (CSS) for foster care placement after news coverage revealed that based on its religious beliefs, CSS would not certify same-sex couples to be foster parents. The city regarded CSS’s position as a violation of the nondiscrimination clause of its contract within the city. The city ended its relationship with CSS and confirmed that it would only resume making foster care placements through CSS if CSS agreed to certify same-sex couples. CSS challenged that the city’s action, violated its religious free exercise rights under the First Amendment.

Using the Smith framework, the threshold question became: Was the city’s refusal to work with CSS because of CSS’s religiously motivated refusal to abide by the nondiscrimination provisions of its contact and certify same-sex couples as foster parents a neutral and generally applicable norm, or did it amount to government discrimination against CSS for its religious convictions? The city maintained that the contractual ban on discrimination was generally applicable; no organization that partnered with the city to place children with foster families was permitted to exclude same-sex couples from consideration, and CSS was merely being held to the same standard as every other agency. However, CSS argued, that the city’s refusal to exempt CSS from the nondiscrimination provisions on religious grounds was discriminatory because the contract permitted city officials to use their discretion to permit foster care agencies to discriminate in certain cases. For example, the city might permit an agency to not certify potential foster parents based on their age or mental or physical abilities, though such discrimination would ordinarily be proscribed. According to CSS, if the city could choose to permit some kinds of discrimination (presumably to best serve the needs of children within the foster care system), it should also be required to allow CSS’s religiously motivated refusal to certify same-sex couples as foster parents unless denying the exemption is necessary to achieve a compelling government interest.

CSS further argued that the court should reconsider Smith and move toward a more administrable and religion-friendly standard that avoids having judges make hard decisions about whether a law or policy discriminates against religion before requiring the government to make a strong showing that it has compelling reasons for burdening religious practice.

Many observers anticipated that the Court would use Fulton as an opportunity to reconsider the Smith test, but this was not to be.  In a 9-0 decision, the Court ruled in favor of CSS while also affirming Smith. Applying the Smith test, Chief Justice Roberts, writing for himself and five other justices, concluded that the city’s foster care contract was not neutral and generally applicable because it allowed for the city to grant discretionary exemptions to the contracts’ nondiscrimination requirement. See Fulton, slip op. at 7. The Court held that this mechanism for individualized exemptions meant the city could not refuse to extend an exemption to CSS for its religiously motivated discrimination absent compelling reasons. See id. at 8. The Court further concluded that the city had no compelling interest in denying CSS an exemption.  Even a compelling government interest in insuring that same-sex couples would be able to foster children could be achieved without requiring CSS to violate its religious beliefs. Instead, the city could simply ensure that the other foster care agencies under contract with the city would consider and certify qualified same-sex couples. See id. at 15.

Justices Alito, Thomas, and Gorsuch wrote separately to explain why they would have held for CSS and reversed Smith. See Fulton, slip op. at 1 (Alito, J. concurring). Justice Alito explained how, in his view, the Smith test departs from the plain textual meaning and historical understandings of the First Amendment’s religion clauses, as well as how Smith’s definition of free-exercise rights cut against both established precedent and the Constitution’s structure wherein rights provisions are generally understood as being more than protections against discrimination.

Defying expectations, Chief Justice Roberts’ strategic decision to rule in favor of CSS’s religious right to discriminate while still affirming Smith’s basic proposition that religious motives are not a carte blanche exemption from all laws enabled him to assemble a coalition of liberal and conservative justices willing to affirm that the Smith test is here to stay, at least for the near future.

Shlomo C. Pill
Paul and Marion Kuntz Scholar in Law and Religion
Senior Lecturer, Center for the Study of Law and Religion