The Volokh Conspiracy
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The Roberts Court has been on a tear in church-and-state cases lately. Last term, the Court decided an important case on public religious displays, The American Legion v. American Humanist Association. This term, the Court will decide a case on Blaine Amendments, Espinoza v. Montana Dep't of Revenue (which I discussed in an earlier post); yet another case on the Contraception Mandate, Little Sisters of the Poor v. Pennsylvania; a pair of cases on the ministerial exception, St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru; and a case on the personal liability of government officials under RFRA, Tanzin v. Tanvir. For a purportedly minimalist bench, the Court seems quite ready to rule on controversial law-and-religion issues.
Late last month, the Court granted cert in another church-and-state case, Fulton v. City of Philadelphia, which has the potential to overshadow all the others. In Fulton, Catholic Social Services (CSS) challenges Philadelphia's decision to exclude the charity from the city's adoption program because of CSS's policy of refusing to place children with same-sex and unmarried heterosexual couples. Philadelphia argues, among other things, that CSS's policy violates the city's non-discrimination ordinance. In response, CSS argues that the city's action violates the First Amendment's Free Exercise Clause. In essence, CSS maintains that its religious convictions make compliance with the anti-discrimination ordinance impossible and that the city should grant it an exemption, or accommodation, for that reason.
What makes Fulton so significant, potentially, is this. The cert petition specifically asks the Court to revisit its landmark 1990 decision in Employment Division v. Smith, which held that the Free Exercise Clause does not entitle religious believers to exemptions from "neutral" and "generally applicable" laws. Under Smith, religious believers have an obligation to comply with such laws, just like everybody else. Only where laws are not "neutral" and "generally applicable"—where, for example, laws target religious believers for disparate treatment—can religious believers make claims for accommodations. Even then, accommodations are not assured. The state can still burden the exercise of religion if it passes the so-called "compelling interest" test: The state can burden the exercise of religion where it has a compelling reason for doing so and has chosen the least restrictive means.
Smith is widely understood to have narrowed the circumstances in which religious believers can claim accommodations under the Free Exercise Clause. The fact that the Court has granted a petition that specifically asks the justices to reconsider the case is thus very significant. Even more: in a statement last term, four justices—Alito, Thomas, Gorsuch and Kavanaugh—hinted strongly that they were ready to revisit Smith, which, they said, had "drastically cut back on the protection provided by the Free Exercise Clause." Quite possibly, the Court's grant in Fulton signals that the Court is ready to overrule Smith.
If the Court were to overrule Smith, it would most likely hold that the compelling interest test applies to all claims for religious accommodations, including CSS's. (This was, in fact, the law for decades before Smith). This, too, makes Fulton a significant case. The Court would have to decide whether Philadelphia's interest in ending discrimination based on sexual orientation, in this context, outweighs the right of CSS to conduct itself according to its sincere religious convictions. So far, the Court has carefully avoided such questions, which could take the Court where it would rather not go. The Court had a chance to address a similar issue two years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the wedding vendor case, but ultimately ruled on narrow grounds that made resolution of the issue unnecessary.
The Court might find a way to avoid the issue in Fulton as well. In that event, Fulton will be another one of the Court's narrow, fact-bound church-and-state rulings. But it's also possible that the case will be a major decision that makes other Roberts Court church-state cases pale in comparison. The Court won't hear the case until next term, so there's plenty of time to speculate! Meanwhile, for more on what the Fulton grant may mean, have a listen to the latest Legal Spirits podcast I recorded this week with my colleague at the St. John's Center for Law and Religion, Marc DeGirolami.