What the Supreme Court’s ‘Fulton’ ruling means for the future of religious freedom

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Women pose for a picture near the U.S Supreme Court building in Washington June 17, 2021. In a unanimous decision June 17, the Supreme Court said that a Catholic social service agency should not have been excluded from Philadelphia's foster care program because it did not accept same-sex couples as foster parents. (CNS photo/Jonathan Ernst, Reuters)

Today, the U.S. Supreme Court handed Catholic Social Services of Philadelphia (CSS) a 9-0 victory on very narrow grounds, in CSS’ bid to continue providing adoption and foster-care services to vulnerable children. But CSS and advocates of religious liberty across the United States hoped that the Court would also decide a crucial question about the strength of the First Amendment’s religious freedom guarantee. The Court sidestepped that question. 

In order to understand the significance of today’s decision, and what it portends for the future of religious freedom, we need first to understand the constitutional law of religious freedom prior to Fulton v. City of Philadelphia. The First Amendment to the Constitution provides in part that “Congress shall make no law … prohibiting the free exercise of religion.” The Court’s current interpretation of this clause is based upon two cases from 1990 and 1993. 

In the first case, Department of Human Resources v. Smith, the Supreme Court severely reduced the level of constitutional protection accorded religious freedom. Pre-Smith, even laws that were “neutral” on their face (not targeting religion) and “generally applicable” to citizens in the jurisdiction, could not burden religion unless the state could prove a “compelling state interest” exercised by means “least restrictive” of religion. This is the “strict scrutiny” standard of review. 

After Smith, however, states could burden religious free exercise with a neutral, generally applicable law by showing merely that the law bore a “rational relationship” to a “legitimate state interest.” This is an easy constitutional standard to meet. 

But Smith did not offer a complete answer to the question: “When is a law non-neutral or not generally applicable?” That question was more fully answered three years later in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. There, the Court held that, among other circumstances, if a law had numerous exceptions to its commands, or left it to lawmakers’ discretion to grant individualized exceptions, it was not neutral or generally applicable. In order to justify burdening religion with such a law, the state would have to survive a strict scrutiny review.

Applying Lukumi, the Fulton Court held that Philadelphia’s program for working with foster care agencies was not “generally applicable.” This is because Section 3.21 of the city’s standard foster care contract, which required the provision of services to prospective foster parents regardless of their sexual orientation, allowed exemptions at the sole discretion of the city. The city had simply made it crystal clear to CSS that it had “no intention of granting [it] an exception.” Furthermore, the city’s refusal to accommodate CSS could not survive a strict scrutiny analysis. The city’s claimed compelling interest in maximizing the number of foster families was harmed, not helped, by tossing CSS out of its program. And the city’s claimed interest in equal treatment of same-sex couples was not really compelling in the Court’s view because the city already allowed itself unlimited discretion to deviate from equal-treatment principles in provision 3.21 of its contracts.

One element of the Fulton opinion is unlikely to receive wide public attention but bodes well for religious citizens and groups. Opponents of religious freedom have asked the Court repeatedly in prior cases to take away from religious complainants their authority to determine which state actions constitute a burden upon their religious beliefs, in their religious view. The Fulton majority opinion flatly refused to do this. Quoting a prior case, it said instead that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” This is an important win for religious citizens. If the Court had gone the other way, it could decide in the future, for example, that it was not a “burden” on the religious exercise of the Little Sisters’ of the Poor to require them to give the government a form to trigger contraception coverage for their employees. Thus, the Court accepted CSS’ description of its burden as being put to the “choice of curtailing its mission or approving relationships inconsistent with its beliefs.” In future litigation, religious adoption and foster-care agencies will at least avoid the state’s second-guessing their articulation of a law’s burden on their religious freedom. 

At the end of the day, however, Fulton leaves the future of constitutional free exercise quite uncertain, due to its refusal to overturn the Smith decision. Many religious freedom scholars and attorneys have been gunning to overturn Smith for 31 years and believed the Fulton case to be an excellent vehicle. But Fulton’s majority opinion, authored by Chief Justice Roberts and joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh and Barrett, left Smith intact. It concluded that the case could be resolved under the extant Smith/Lukumi line of cases. Concurring opinions, however, reveal that there are at least three votes to overturn Smith (Justices Alito, Thomas and Gorsuch) and another two votes (Justices Kavanaugh and Barrett) disposed to do so, but worried about what might replace it. Chief Justice Roberts’ opinion remains unknown.

Instead of overturning Smith, the Fulton majority tied its holding to Philadelphia’s reservation of an exemption power in its foster care contracts. This guarantees only more litigation. As explained by the Alito concurrence: “This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish — and the parties will be back where they started.” 

Should the Court decide in the future to squarely face the question of overruling Smith, Justice Alito’s concurrence provides the blueprint. It is an exhaustive treatment of the original meaning of the First Amendment and its history and treatment in cases before the U.S. Supreme Court and lower federal courts since the time of its passage. It is compelling and convincing. He demonstrates that the Smith Court did not interpret the words of the First Amendment according to their ordinary meaning or the understanding prevalent at the time of their adoption. He shows how Smith ignored controlling precedent and manufactured a rule that has proved difficult to apply. 

The Alito concurrence also makes a compelling argument that the Court could overturn Smith without violating the principle of stare decisis — not disturbing prior opinions. For those wondering about the use of this principle in connection with future abortion litigation, Alito’s opinion provides a blueprint for arguing that Roe v. Wade and Planned Parenthood v. Casey are also no longer good law. 

It is good to see the Supreme Court strictly apply the Smith/Lukumi line of cases to protect religious freedom for the moment. But Fulton will more likely be remembered as a footnote in the longer struggle to achieve the higher degree of protection for religious freedom that our Constitution is actually written to guarantee.

Helen Alvaré, a professor of law at Antonin Scalia Law School at George Mason University, writes from Virginia.