The Supreme Court this week took one small step for religious freedom. Unfortunately, it failed to take the giant leap needed to fully protect religious practice.
In Fulton v. City of Philadelphia, the court considered the plight of the Catholic church, which has served Philadelphia’s needy children in various ways since the late 1700s. For more than a century, Catholic Social Services has contracted with the city to connect children in need of a home with loving foster parents. In 2018, the city suddenly terminated Catholic Social Services’s contract because it discovered that the agency, in following Catholic church teaching on marriage, would not place children with same-sex couples.
The city claimed that this violated both the required foster care contract and a city ordinance regarding discrimination. Had there been a complaint about Catholic Social Services’s services? No. In fact, not a single same-sex couple had even approached Catholic Social Services to be foster parents. Instead, a newspaper story triggered a City Council investigation, and the politically correct snowball rolled downhill. The City Council employed a tired leftist trope, denouncing “discrimination that occurs under the guise of religion freedom,” and the commissioner of human services told Catholic Social Services that it should change how it applied church teaching.
Catholic Social Services sued, claiming that terminating the contract because it followed Catholic teaching violated the First Amendment, which guarantees the “free exercise of religion.” The founders considered this a natural and unalienable right, and beginning in the 1940s, the Supreme Court had set a high bar for government actions that burden religious practice. But in 1990, out of the blue, the Supreme Court in Employment Division v. Smith changed its interpretation of the First Amendment, weighting its calculus in favor of the government unless it could be proven that the government had actually targeted religion. Otherwise, even a government policy or practice with devastating effects on the exercise of religion would get a free pass so long as it appeared “neutral” or “generally applicable.”
In Smith, no one had asked the Supreme Court to even look at its decades-old standard for free exercise cases, let alone put that standard on the chopping block. The parties had neither briefed nor argued that issue. But the court changed the rules anyway and did so without actually interpreting the free exercise clause itself. As a result, the lower courts had decided that Philadelphia’s action against Catholic Social Services in yesterday’s decision did not violate the First Amendment. This case was an opportunity for the court to do what it skipped in Smith: determine whether the free exercise clause, properly interpreted, protects the exercise of religion from government burdens — whether direct and explicit, or indirect and implicit.
Instead, the court said that, based on the specific facts in the case, Philadelphia violated the First Amendment and simply stopped there. Employing its own analysis of Smith, the court found that the violation occurred because a particular provision in the foster care contract was worded to give too much discretion to a city official. In that way, the law was not “generally applicable.” The court’s unanimous judgment in favor of Catholic Social Services, therefore, will last only until the city changes the wording of the contract. Then, as Justice Samuel Alito explained, “voila … the parties will be back where they started.”
The city can once again refuse to associate with any agency that does not embrace a specific view of marriage. The court’s decision, Alito wrote, “might as well be written on the dissolving paper sold in magic shops.” The silver lining is that at least five justices indicated they are open to correcting Smith’s egregious constitutional error. Justices Clarence Thomas and Neil Gorsuch joined Alito’s separate opinion, which dismantled Smith and reads like the majority opinion it will hopefully one day be. In addition, Justices Amy Coney Barrett and Brett Kavanaugh indicated that, when the time is right to reconsider Smith, the free exercise clause’s text and structure make it “difficult to see” how it does not “require religious exemptions from generally applicable laws in at least some circumstances.”
So long as Smith, rather than the First Amendment itself, controls whether and how the free exercise clause actually protects religious freedom, this fundamental right will continue to wither.
As we explained in a recent paper, Smith’s flaws are many and serious. In a separate opinion arguing for Smith’s abandonment, Gorsuch wrote: “It’s not as if we don’t know the right answer. Smith has been criticized since the day it was decided. No fewer than ten Justices — including six sitting Justices — have questioned its fidelity to the Constitution. … Justice Alito has offered a comprehensive opinion explaining why Smith should be overruled. And not a single Justice has lifted a pen to defend the decision. So what are we waiting for?”
What indeed?
Tom Jipping is a senior legal fellow, and Sarah Parshall Perry a legal fellow, in the Heritage Foundation’s Meese Center for Legal and Judicial Studies.
