After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.”
If you opened the 110-page Supreme Court tome that is Fulton v. Philadelphia here, to Justice Alito’s separate opinion, you would think that the Court ruled against Catholic Social Services for refusing to “certify” same-sex couples (or unmarried opposite-sex couples) as qualified foster parents. Your conclusion would be bolstered by looking at the majority opinion that Alito so caustically laments. Its subscribers include Justices Kagan, Sotomayor, and Breyer. Surely, you would think, these Justices did not side with the Catholic Church on a huge “gay rights” issue.
But your thinking would be wrong. The Court decided unanimously in favor of the Church.
Fulton v. Philadelphia is a remarkable case indeed.
Plainly put, it is not that believers won the battle but lost the war in Fulton. It is rather that—according to Alito (joined by Justices Thomas and Gorsuch)—victory in the war was at hand, and yet forsaken.
The “war” of course is about the Court’s 1990 Free Exercise precedent, Oregon v. Smith. The Court granted review in Fulton to decide whether to overrule that case. Smith cut back dramatically on the judicial practice, starting in 1963, of more liberally considering “exemptions” from legal requirements that burden the exercise of someone’s religion. (Think of making way for a Jewish soldier, for example, to wear a head-covering at odds with the standard uniform.) Smith has since been bitterly criticized by a coalition of scholars, lawmakers, and believers on several grounds, most often that it harms religious liberty.
The issue was mainly taken up in Fulton, however, on two different grounds by the two different concurring opinions. Most of Alito’s 77-page effort was an historical essay in support of this conclusion: “Based on . . . evidence about the original understanding of the free-exercise right, the case for Smith fails to overcome the more natural reading of the text.” Elsewhere in Fulton he argued that the “natural” reading was the more liberal practice abandoned by Smith.
I do not think Alito is right about the original understanding of Free Exercise. He generously cited twice an article of mine arguing against his position. Nonetheless, he carried Justices Thomas and Gorsuch with him—but no one else.
Justice Barrett wrote a concurrence, which Kavanaugh joined. Barrett wrote that “[w]hile history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws.” She judged that the “textual and structural arguments against Smith are more compelling.” These two Justices declined to decide Smith’s fate, however, because they could not see clearly what would replace it.
So, there seem to be five Justices ready or strongly inclined to overrule Smith somewhere down the road. That is big news. And it could break soon. Justice Gorsuch wrote in his Fulton concurrence: “Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer.”
The majority opinion seemed ready to take up the Smith question at one early point. Roberts wrote that Philadelphia’s “actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs.” The majority nonetheless decided the case on rather than against Smith.
Roberts, for six Justices: “This case falls outside Smith because the City has burdened CSS’s religious exercise through policies that do not satisfy the threshold requirement [set by Smith] of being neutral and generally applicable.” Here, Philadelphia had (according to the majority) already “create[ed] a mechanism for individualized exemptions.” And where such a system exists, “the government may not refuse to extend that system to cases of religious hardship without a compelling reason”—as Philadelphia did in this case.
Fulton will be breathlessly reported and pored over and dissected for what it presages about Smith. That is understandable, though it is speculative. But there are two important points about religious liberty affirmed by the entire Court in Fulton that involve no speculation. Each transcends the facts of Fulton. Both are significant no matter what the Court eventually does about Smith.
The first point, here set up by Roberts: In the city’s view, he wrote, “certification reflects only that foster parents satisfy the statutory criteria, not that the agency endorses their relationships. But CSS believes that certification is tantamount to endorsement.” The Court adopted that conclusion, evidently on the basis of CSS’s belief. This is a huge step in the right direction for religious liberty. All nine Justices (presuming safely upon Thomas, Gorsuch, and Alito) say, in a red-hot culture-war case, that a believer’s view that a value judgment is at stake in legal relationship, over against an opponent who insists that it is a matter of neutral, if not technocratic, secular criteria, is going to be the Court’s view.
The second point, also expressed by Roberts, regards “the interest of the City in the equal treatment of prospective foster parents and foster children.” The relevant legal analysis then teed-up the question: Is this a “compelling”—and thus almost unbeatably surpassing—state purpose? The Court replied: “We do not doubt that this interest is a weighty one, for ‘[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.’” Yet, “on the facts of this case,” this “interest cannot justify denying CSS an exception for its religious exercise.” “Weighty” but not “compelling.” It is not quite a bold generalization (“the facts of this case”). But, especially in light of the Court’s own insistence in Obergefell that those in same-sex marriages be spared any and all trace of an adverse moral judgment conveyed by or through legal action, it is nonetheless a welcome portent.
Even if Justices Kagan, Breyer, and Sotomayor viewed them as concessions needed to prevent a majority from forming up to overrule Smith, these two propositions are nonetheless the law.
Gerard V. Bradley is professor of law at the University of Notre Dame and trustee of the James Wilson Institute.
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