A distinctive feature of Chief Justice John Roberts’s nearly 16-year tenure on the Supreme Court is a growing body of precedents interpreting and enforcing the First Amendment’s religion clauses and federal religious-freedom statutes. These rulings have permitted appropriate cooperation between governments and religious schools; curbed anti-religious discrimination in regulation and funding; accommodated religious believers whose faith is unnecessarily burdened by official action; and respected the place of religion in the country’s history, traditions, and public square. It is noteworthy that under his leadership, and often through his authorship, decisions about these matters have generally not involved close splits along partisan lines.
This trend continued last week in Fulton v. City of Philadelphia. Although they disagreed about the controlling legal standard, all nine justices—the more “liberal” and the more “conservative”—agreed that the City of Philadelphia violated the Constitution’s free-exercise guarantee when it excluded Catholic Social Services (CSS) from participating in the city's foster care system.
When regulators learned, through a newspaper story, that CSS would not certify unmarried or same-sex couples as foster parents, they began a series of gerrymandered efforts to freeze the agency out of this ministry. They did so notwithstanding that other foster care agencies in Philadelphia will and do certify same-sex couples, that no same-sex couple had requested and been denied certification from CSS, and that—in the chief justice’s words—“[t]he Catholic Church has served the needy children of Philadelphia for over two centuries.” The Court concluded that this exclusion was not pursuant to a truly “generally applicable” nondiscrimination rule and that the imposition on CSS’s religious exercise was not necessary to advance the city’s interests.
Most Court watchers, after oral arguments concluded, expected that CSS would win the case. The justices’ interventions in controversies regarding COVID-related limitations on public religious gatherings had confirmed that at least a majority were inclined to look closely, and skeptically, at official actions that target religious activities or regulate them selectively. Still, the unanimity in Fulton came as a surprise to most and echoed the landmark ruling in Hosanna-Tabor v. EEOC nearly a decade ago. It is, we should hope, a reminder that religious freedom is foundational and that it need not and should not be only a partisan concern.
Some commentators—as well as three of the justices—have said that the Court’s ruling is “narrow” and CSS’s win ephemeral. Justice Alito wrote in his concurring opinion that the Court’s “decision might as well be written on the dissolving paper sold in magic shops.” This is because the outcome depended on features of the city’s regulatory regime that undermined its “general applicability” and that could presumably be easily changed. The Court did not, as Justices Alito, Gorsuch, and Thomas would have done, overrule the controversial 1990 ruling in Employment Division v. Smith, and so CSS’s ability to provide foster services in a manner consistent with its character and mission is still vulnerable.
If the city were to rewrite its rules to more savvily shut out CSS, it would harm the interests of vulnerable children, prevent experienced and caring providers from using their skills and services for the common good, and reveal an unbalanced ideological (“religious”?) zeal. We should hope it does not. In any event, several aspects of the chief justice’s opinion for the Court, which was joined in full by five other justices, are worth emphasizing, and suggest that Fulton could and should prove to be more than—again, in Justice Alito’s words—a “wisp.”
First, all nine justices agreed that the city’s refusal to contract with CSS to provide foster care services burdened its right to free religious exercise. Chief Justice Roberts wrote, “it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.” That the government did not purport to forbid CSS from holding or professing its commitments regarding marriage and family is irrelevant.
Next, and related, the Court rejected the city’s argument that the contractual, or “managerial,” nature of its relationship with CSS should give it more leeway to infringe on the latter’s religious exercise. Contemporary governments have many ways, not limited to mandates and punishments, of coercing religious persons and groups to compromise or retreat; they are often able to do so just as well through indirect “soft power” mechanisms like contract conditions, accreditation requirements, licensing schemes, and access criteria as they are through direct commands. The Fulton case reminds us that these means are also governed by the free exercise clause.
It is also significant that the Court stated more clearly than it had in nearly 30 years that official actions that are not in fact “generally applicable” should not receive the judicial deference called for in Smith. A law or policy that contains exemptions and exceptions—or even a mechanism for granting accommodations on a case-by-case basis—is not, the Court emphasized, generally applicable, and so must be carefully evaluated if it imposes a burden on religious exercise. This rule, or something like it, was applied in the Court’s recent orders in the religious-gatherings lawsuits, but in Fulton it was joined by the more “liberal” justices and is now clearly controlling, going forward.
Finally, the Court’s handling of the city’s asserted “compelling interest” in combatting discrimination will almost certainly be important in a wide variety of future cases. The justices in the majority noted that the right question to ask is not whether this interest is, as a general matter, important, but instead whether it is necessary, in the pursuit of that interest, to deny a requested accommodation for a particular individual or institution whose religious exercise is being burdened. The Court did not embrace the claim that any such accommodation would inflict “dignitary harms” or undermine the aims of civil-rights laws.
These doctrinal markers and developments are welcome. At the same time, there is no getting around the fact that—not always, but sometimes—a “win” in a religious-accommodations case is also a kind of loss. Although most religious-exemption requests do not involve moral challenges to the law in question, some do, and CSS’s does. That is, CSS needs an exemption in order to do its important and generous work because its understanding of marriage and family has been rejected officially.
Most religious exemptions requests do not involve hot-button moral questions or “social issues.” They seem easier to navigate, because the political authority is being asked to incur some cost or inconvenience, or to sacrifice a bit in terms of efficiency and uniformity, but not to abandon an orthodoxy. Increasingly, though, as the understanding of the public interest in preventing invidious discrimination has expanded—for example, to requiring Catholic health-care institutions to perform abortions—exemptions requests are taking on a different character, and are seen as threatening to progressive commitments. Fulton is hardly the end of the matter.
Richard W. Garnett is professor of law and concurrent professor of political science at the University of Notre Dame.
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