There was good news from the Supreme Court recently for supporters of religious freedom. In Fulton v. City of Philadelphia, the Court unanimously held that Philadelphia cannot require Catholic Social Services, as a condition of receiving a contract to provide foster care services, to certify same-sex couples as foster parents. The agency had argued that it could not certify same-sex couples without violating its religious freedom. In holding for the agency, the Court once again seemed to retreat from its previously lukewarm view on religious freedom. The decision was a narrow one, however, with limited value as a precedent for future cases.
In an opinion by Chief Justice Roberts, the Court relied on a provision in the city’s standard foster care contract that gave the city’s Commissioner of Social Services discretion to exempt foster care agencies, from the certification requirement, finding that the relevant policy “incorporates a system of individual exemptions, made available in this case at the sole discretion of the Commissioner.” The existence of such discretion, the Court held, takes the policy out of the category of general applicability and thus allows the city to single out religious agencies for unfavorable treatment.. As a result, the Court held, “[t]he City may not refuse to extend that [exemption] system to cases of religious hardship without a compelling reason.” On the record before the Court, there was no such compelling reason.
The Court’s decision disappointed some advocates of religious freedom, many of whom had hoped that the Court would take the opportunity presented by this case to overrule its 1990 decision in Employment Division v. Smith. That decision, written by the late Justice Scalia, had eviscerated the Free Exercise Clause, holding that it required no accommodation for religious objections to laws of general applicability. The Court’s opinion declined to embrace such a broad holding, however, ruling that the discretionary exemption provision in the City’s contract took it out of the general applicability category and thus invalidated the policy even under the test of Smith. A concurring opinion by Justice Alito, joined by Justices Thomas and Gorsuch, took issue with that approach. It would have reached that question and overruled Smith. Another concurrence, written by Justice Barrett (the Court’s newest Justice) and joined by Justice Kavanaugh, expressed a willingness to reexamine Smith, but agreed with the majority opinion that the Court didn’t need to do so to decide the merits of the case before it. That concurrence expressed skepticism about “ swapping Smith’s categorical nondiscrimination approach for an equally categorical strict scrutiny regime.”
Whatever the merits of the particular policy at issue in Fulton, the Court’s decision shows an increased willingness of the Supreme Court to take religious freedom cases seriously. I have long believed that Smith was wrongly decided and should be overruled. As an observant Jew, whose religion requires some practices that may be out of step with current fashion, I depend on the Constitution to protect religious practices from government interference resulting from shifts in popular opinion. Indeed, Justice Alito’s concurring opinion in Fulton, seeking to demonstrate the inadequacy of Smith, includes as examples of two of the most vulnerable Jewish practices: kosher slaughter, which has been threatened in several European countries, and infant circumcision, which a few years back was the target of a ballot initiative in San Francesco.
Still, there is value in the Court’s respect for precedent, and its hesitation to issue broad constitutional rulings in cases that can be more narrowly decided has long been a mainstay of its jurisprudence and is worthy of respect. While the Court is reluctant to overrule its own precedents, it has clearly been edging closer to doing so with Smith. Today’s Court is far more sympathetic to religious freedom than the Court that decided Smith. The unanimity of the Court’s decision in Fulton shows that even those Justices disinclined to overrule Smith are more open to religious freedom claims than were those of the Smith Court.
The decision in Fulton moves the Court one step closer to admitting that the holding of Smith was a mistake. It appears from the concurring opinions that there are now five Justices who are prepared to reexamine Smith — three who agree with Justice Alito and would have done so here and two more (Justices Barrett and Kavanaugh) who see it as a more complex question and preferred to put it off to another day. That day is likely to come sooner rather than later. While I can’t predict the precise question that will make the issue unavoidable or the precise test that the Court will articulate, I am optimistic that supporters of religious freedom will find the result a vast improvement over Smith.