Religion

Prof. Michael McConnell (Stanford) on Fulton v. City of Philadelphia

|

I'm delighted that Prof. McConnell—one of the top Religion Clauses scholars in the country—was willing to pass along some thoughts on the Fulton oral argument:

The Supreme Court heard oral argument Wednesday in Fulton v. City of Philadelphia, a case asking whether Philadelphia violated the Free Exercise Clause by excluding Catholic Social Services (CSS) from the array of private groups connecting children without families with willing foster homes, on the ground that CSS's religious beliefs prevent it from certifying same-sex or unmarried couples who want to become foster parents. Not that that ever happened. No same-sex couples have ever tried to foster through CSS. And not that CSS's beliefs have any real effect on such couples: they can foster through any number of other organizations. The only concrete consequence of the exclusion is to leave hundreds of children in Philadelphia without foster homes.

One of the questions presented in Fulton is whether the Court should "revisit" (meaning overrule) the Court's much-criticized 1990 decision, Employment Division v. Smith, in which the Court allowed criminal prosecution of Native American Church practitioners for ingesting peyote, their sacramental substance. That decision, written by the late lamented Justice Antonin Scalia, has been criticized by multiple Justices over the years as well as by a host of academics (though the ideological valence of the critique has shifted from left to right over the ensuing decades). My views on Smith are no secret; Justice Scalia called me Smith's most prominent academic critic. I hope and expect that the Court will revisit the decision, which without benefit of briefing or argument drastically narrowed the First Amendment protection for free exercise of religion in the teeth of constitutional text and precedent and what I consider the strong weight of historical evidence of original understanding.

Alas, during Wednesday's oral argument the Justices showed no serious interest in the merits or demerits of Smith. The reason is obvious: the Petitioner, CSS, led with the argument that it should prevail even under Smith. The new Justice, Amy Coney Barrett, who most people assume is not a friend to the Smith decision, pointedly asked CSS's counsel:

[Y]ou argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if you're right about that, why should we even entertain the question whether to overrule Smith?

It is of course likely that some of the Justices will concur on the ground that Smith should be overruled. It has been common the last few years for the Court to render narrow decisions in an early case, declining invitations to overrule precedent, and then to grab the bull by the horns in a subsequent decision. And it is likely that a minority of the Court will vote against CSS—though exactly on what legal ground it is hard to predict. Probably not the unpersuasive logic of the court below.

Assuming for sake of argument that the Court will not overrule Smith, what is it likely to do? There are two most likely paths.

[1.] The Court could render a narrow, fact-specific decision based on the evident hostility shown by Philadelphia toward CSS's religious beliefs. For example, the City Council passed a resolution labeling CSS's actions "discrimination that occurs under the guise of religious freedom." The Commissioner told CSS that "times have changed," "attitudes have changed," and that it was "not 100 years ago," and that its policy on foster families conflicts with the teaching of the Pope. The Court could conclude that this "hostility on the part of the State" fell below the minimum requirements of the Free Exercise Clause. I think of this path as "Masterpiece 2.0," because it is very similar to the Court's ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which rested on "religious hostility on the part of the State itself," and specifically on "the Commission's consideration of Phillips' case," which the Court held "was neither tolerant nor respectful of Phillips' religious beliefs."

But this path, like the path of overruling Smith, drew little attention at oral argument in Fulton. And for good reason. Masterpiece didn't help reduce the temperature on gay rights and religious freedom. If anything, it raised it by suggesting to lower courts and the government that punishing those who hold a minority view on marriage is fine as long as the government does a better job of hiding its hostility—ensuring that more cases like these will keep coming.

In fact, Masterpiece didn't even resolve the baker's own case, as he was immediately targeted again after the Court ruled in his favor. More generally, I think there is little appetite on the Court for making the subjective motivations of government actors central to constitutional law. If the Court wanted to go down the path of emphasizing subjective motivations, it would have decided Trump v. Hawaii the other way.

[2.] The other path, much better than Masterpiece 2.0, would be to use the case to correct the needlessly narrow way in which the Third Circuit interpreted the Smith doctrine. As shown by the Lukumi case, decided by a unanimous Court only a few years after Smith, Smith does not have to be a wrecking ball for religious freedom.

First, it can clarify the meaning of general applicability. The City wants the Court to focus narrowly on one portion of the regulatory scheme (the evaluations of foster families by foster parenting organizations) and ask whether the City lets other agencies engage in precisely the same conduct as CSS but for nonreligious reasons. Whether the City has actually allowed a secular organization to exclude same-sex couples should not be the question: the question should be whether, under the terms of its policy, the City retains the right to make exceptions.

It is undisputed that the City carves out other exceptions from its nondiscrimination policy, for other foster-care organizations; moreover, there is a catch-all exceptions policy big enough to drive a truck through. In Smith, in its discussion of Sherbert, the Court made clear that regulatory schemes that allow case-by-case discretion are not "generally applicable."

Second, the Court can clarify Smith's neutrality standard. At the beginning of this saga, CSS provided foster care services in Philadelphia (as it had for 200 years—long before the City became involved) and the City had no policy that would exclude CSS. Philadelphia politicians read in the newspaper that CSS holds a religious objection to approving same-sex and unmarried couples for its foster care program, and instructed City lawyers to find a way to exclude entities that discriminate "under the guise of religious freedom." The City then proceeded to craft a policy that would have the effect of excluding CSS without interfering with the ability of other foster care agencies to operate out of compliance with other aspects of the anti-discrimination policy.

The logic of Smith is that policies that apply to all parties are not unconstitutional when they happen to conflict with one party's religious exercise. That does not license governments to craft policies to exclude religious entities and exempt others.

[3.] Even if a City policy burdens the free exercise of religion, it might nonetheless be constitutional if it serves a compelling governmental purpose in the least restrictive way. (If a religion commanded child sacrifice, the government could prohibit the exercise of that belief.) It is not likely that the City's policy would satisfy this demanding standard.

The principal justification for the City's policy seems to be communicative in nature; it wishes to prevent the insult to same-sex couples that is implied by their exclusion from CSS's program. But pure communicative impacts are a parlous ground for compelling governmental interests; people have a free speech right to express disapproval of conduct the state approves of.

More important are the material effects. If CSS were the only foster-care organization or if there were any evidence that same-sex couples were hindered by CSS's policy (issues Justice Kavanaugh asked about), the City might well have an argument. But this is contrary to the facts of the case.

Indeed, the real effect of the City's policy is to reduce the availability of foster placements for all children. As Hashim Mooppan. Counselor to the Solicitor General arguing in support of CSS, put it: "what the City has done is worse than cutting off its nose to spite its face. What it is doing is cutting off homes from the most vulnerable children in the City to spite the Catholic Church."

[4.] Finally, I was surprised to hear some Justices give credence to a late-made argument by the City that attempts to sidestep the First Amendment issue. According to the argument, the City did not exclude CSS from the foster care program in an exercise of its regulatory power but merely refused to enter into a contract with it. Both Chief Justice Roberts and Justice Kagan asked about this argument.

It is not obvious that this would be a winner for the City even if the argument applied; after all, governments cannot violate the Constitution in their contracting capacity any more than their regulatory capacity. But a simpler answer is that the City has never claimed it was imposing the policy in a managerial capacity. It has said throughout this dispute that it is enforcing the Fair Practices Ordinance, which applies across the board to private and business conduct, and has nothing to do with contracting. If upheld, the City's broad rule could be stretched to apply to religious schools, hospitals, and homeless shelters (as the City admitted at oral argument)—not just entities required to "contract" with the City.

More importantly, the City's argument is misguided as a matter of principle. As Lori Windham pointed out on behalf of CSS, it would mean "the Free Exercise Clause [would] shrink every time the government expands its reach." Justice Barrett also seized on this problem, pressing Neal Katyal, counsel for the City, with a hypothetical in which the government expanded its authority over healthcare and attempted to force Catholic hospitals as a condition of their contracts to provide abortions. Although Neal is a great litigator and friend, he had no good answer to this hypothetical. That is where the City's position on contracting leads.

[5.] The broader significance of this case, as a cultural matter, is whether it will exacerbate the conflict between LGBT rights and religious freedom, or lower the temperature. Many—probably most—Americans who supported same-sex marriage did so on the assumption that it would get the government out of the business of restricting the ability of same-sex couples to act on the basis of their own consciences and identities when deciding whom to marry and how to live their lives. That victory is won.

But the terrain has now shifted. The question in cases like Fulton and Masterpiece is whether dissenters from that capacious understanding of marriage can be coerced into retreating from their position, or pretending to do so, on penalty of being ostracized from the public sphere. In my opinion, such coercion perpetuates controversy and unnecessarily enflames the culture wars. I hope the Court will bear that in mind.

NEXT: Federalist Society Panel on Levels of Scrutiny in Free Speech Cases next Tuesday (the 10th), 11 am to 12:15 pm Eastern

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. McConnell for the bigot win!

    1. Are you talking about the CSS case or the Peyote one?

      1. Not sure. I have been busy with election work.

        1. “Not sure” pretty much sums up the Rev. Spouts his bigotry for no reason, or if he had one, has forgotten it within no more than 1 hour and ten minutes.

          1. I was referring to the Philadelphia Catholic case.

            Speaking of Philadelphia . . . thank you, Philadelphia!

            1. It is kinda fun watching the noose ever-so-slowly tighten.

              1. It has been a few extra days of work, but the entertainment value — the extended, inexorable drip toward a readily predictable result — might have made it worthwhile.

            2. You are cetainly proud of your bigotry, Kirkland.
              The animus toward any religious organizations drips from your every post.

              1. People must be free to believe as they wish.

                A cloak of superstition does not improve bigotry or provide special privilege to bigots.

                Competent adults neither advance or accept supernatural arguments in reasoned debate, especially concerning public affairs. Those who flout this point do not deserve respect.

              2. “You are cetainly proud of your bigotry, Kirkland.”

                THE VOLOKH CONSPIRACY

                This white, male, conservative
                ‘legal’ blog has operated for

                119 DAYS

                without using a vile racial slur
                and also has operated for

                560 DAYS

                without a (recorded) imposition of
                partisan, viewpoint-controlled censorship.

  2. The Court could render a narrow, fact-specific decision based on the evident hostility shown by Philadelphia toward CSS’s religious beliefs. For example, the City Council passed a resolution labeling CSS’s actions “discrimination that occurs under the guise of religious freedom.” The Commissioner told CSS that “times have changed,” “attitudes have changed,” and that it was “not 100 years ago,” and that its policy on foster families conflicts with the teaching of the Pope. The Court could conclude that this “hostility on the part of the State” fell below the minimum requirements of the Free Exercise Clause.

    That SCOTUS will find latent hostility from Philly to CSS is a given. That hostility is pervasive in Mayor McDrunky’s administration.

    1. With due deference to the more informed, this point was pressed by at least two Justices and met with the City’s response:
      the District Court found no hostility by the city, and
      the city offered a compromise to CSS, don’t accept the doctrine, excuse the result as a legally mandated requirement.

      I agree both sides are placing doctrinal purity above the interests of the child. Remand as cert improvidently granted, District Court to first 1). determine what is in the best interests of the children, 2). why the city believes it is permissible to discriminate in placement on the basis of “racial slurs” uttered by a foster child “for the benefit of the foster parents” but not show reasonbable discretion in other potential rather than actual situations?”

      1. Wait, the city’s proposed compromise was that CSS just give up and do as the city directed?

        1. Does CSS or any of the 100+ agencies engage in some soul searching in accepting potential foster parents and placing children? The city admitted it used race in one case for the benefit of all. We can pretend that CSS and other services never offend their internal rules and objectives or CSS might admit that the good of the child is a greater good as well as its “primary objective” requiring a solution which does not offend its beliefs.

          If the court was inclined to be malicious it could take judicial notice of Pope Francis’ comments on same sex unions.

        2. The proposed compromise was that CSS submit a document saying the hypothetical same sex couple was acceptable except for being same sex.

          And then the city would put them in the “acceptable” pile.

          It’s not at all obvious why the city couldn’t just assign the same sex couples to one of the other 30 adoption agencies for review.

          Well, except for the obvious motivation.

      2. Sorry ruqt, I live in the Philly area. Mayor McDrunky and his whole progressive crowd have gone out of their way to denigrate and marginalize people of faith. There is no hiding that.

        1. District Court finding of fact argued by city, “clearly erroneous standard of review” and CSS did not make this argument directly.

        2. “Sorry ruqt, I live in the Philly area. Mayor McDrunky and his whole progressive crowd have gone out of their way to denigrate and marginalize people of faith. There is no hiding that.”

          All people of faith, or just the bigots?

  3. Arthur,
    Wondering if you are trying to set a record, or are simply oblivious?

    “The pot calling the kettle black” is a proverbial idiom that may be of Spanish origin, of which English versions began to appear in the first half of the 17th century. The idiom is glossed in the original sources as being used by a person who is guilty of the very thing of which they accuse another and is thus an example of psychological projection,[1] or hypocrisy.”

  4. Many—probably most—Americans who supported same-sex marriage did so on the assumption that it would get the government out of the business of restricting the ability of same-sex couples to act on the basis of their own consciences and identities when deciding whom to marry and how to live their lives. That victory is won.

    But the terrain has now shifted. The question in cases like Fulton and Masterpiece is whether dissenters from that capacious understanding of marriage can be coerced into retreating from their position, or pretending to do so, on penalty of being ostracized from the public sphere. In my opinion, such coercion perpetuates controversy and unnecessarily enflames the culture wars. I hope the Court will bear that in mind.

    This matches my thoughts exactly. The government has no business restricting marriage, other than, say, incest, and arguably then only if they have children; but exceptions like that are few and far between.

    Where the LGBTQWERTY folks have gone off the rails is destroying freedom of association. They have shifted from wanting to do something that harms nobody (marriage) to wanting to force others to do business with them. They are too short-sighted to see the obvious backlash or the even more hurtful turnabout: a gay baker forced to bake a cake for Westboro Baptist Church, for instance.

    1. ‘Sure, I guess we have to let the little ___________s into the same government schools as our White American children . . . because those Democrat commie race traitors just won’t let it go . . . but the bucks will still have to lower their gaze in the company of godly White women, right?

      ‘I mean, how much of this stuff do these socialist expect regular people expected to take?’

      1. Rev fantasizing again. Oh he’s a lawyer and works on elections, too.

        1. You may perceive a substantive or consequential distinction between (1) those who had to be dragged by the inch into an America in which Black citizens weren’t treated like dirt and (2) those who are being dragged by the inch into an America in which gay citizens are no longer treated like dirt.

          The only difference I see is that group (1) consists of bigots and group (2) consists of bigots.

          Throwing a cloak of religious claim over bigotry does not improve the bigotry, except perhaps among gullible children of all ages.

          1. The notion David Geffen has gone through similar things as John Lewis is both absurd and offensive. I support LGBTQ progress but other than getting bullied in high school being gay in America is essentially a super power and thanks to Republicans paying for PrEP (while forcing women to pay out of pocket for IUDs) gay men in America are having a blast letting their freak flags fly!! It’s raining men! Hallelujah!

            1. This is deeply offensive.

              Before Republicans were dragged kicking and screaming into recognizing legally married same-sex couples–something they are still fighting in the courts as we see here–LGBT couples were jailed for private consensual sex via sodomy laws. Lesbian and gay citizens were denied the right to hold certain jobs. You could murder one and claim “gay panic” as a defense in some parts of the country. Large numbers of LGBT Americans are fired from their jobs even today. Some states prohibited fostering and adoption. Hospitals denied visitation. Presidents pretended HIV/AIDS wasn’t a disease worth worrying about because it killed “undesirables.”

              And everything I’ve listed here, which is not even close to exhaustive, happened in my lifetime, some of which I’ve experienced personally.

              Thanks for demonstrating the Rev’s point so clearly, though. If only bigotry was a super power, amirite?!

              1. No, just no. I have supported gay marriage since the 1990s and I knew gay guys they came out of the closet in the 1990s and for gen xers it just wasn’t a big deal. I wouldn’t wish being a gay teenager on anyone but I wish I was a gay adult in America right now because it’s raining men! Hallelujah!

    2. “Where the LGBTQWERTY folks have gone off the rails is destroying freedom of association.”

      The problem is, that they’d do so was absolutely predictable. It was one of the arguments for opposing SSM!

      No victory is complete for the left until they’ve done this sort of thing: Forced the baker to bake the cake, forced the hospital to perform abortions. Until they prove to you that you WILL have to live according to their moral views, not your own, they’re not done.

      1. Until they prove to you that you WILL have to live according to their moral views, not your own, they’re not done.

        You just defined Kirkland’s raison d’etre.

      2. I think all marriages are dumb and that all weddings are super gay—so I stay out of career fields in which marriage and weddings play a big role. So I really wanted to be a wedding planner but I just couldn’t do it as a career because I would have exhorted all of my clients to not get married and told them every choice they were making made them look super gay—sorry, flowers are gay.

        1. Actually, most flowers are hermorphodites, so I don’t see how being gay is even a possibility.

          1. So you are probably anti-flower because flowers are genderqueer non-binary?? Btw, I will start a fund to send that Muslim in Oklahoma to Afghanistan so she can explain to her fellow Muslims her gender and sexuality…I’m sure all Muslims outside of Ilhan Omar and Tlaib will embrace her with open arms. Now the world has 3 Muslims that watch RuPaul and they all happen to be progressive lawmakers in America…what a coincidence!! 😉

    3. Now ask Gays how they feel about polyamorous marriages…

      1. Given that this is a libertarian blog… ask a libertarian.

        Us gays vary in all the ways Americans in general vary. So some of us will support it, some will have no opinion, and others will find it morally repugnant.

        Now having a straight bigot make dog whistles about gay sexual deviancy is nothing we haven’t seen before so you might find your comment hasn’t brought the sting you probably intended.

  5. The clear difference between Fulton and Smith is that the religion in Fulton is Christian and the religion in Smith was not.

    Now, this shouldn’t make a difference to the application of the law, but if you believe that I know a Nigerian prince who would like to give you money.

    1. ah…Clem: But Smith‘s legal rule was clearly going to be applicable to Christian religious observers as well as to others, and the Justices were obviously aware of that. Indeed, just a few years later, the Court not only reaffirmed Smith but actually struck down the Religious Freedom Restoration Act of 1993 as applied to states — a huge loss for religious objectors — in City of Boerne v. Flores, a case involving the Catholic Church. Nothing in Smith was setting up one rule for Christians and another for non-Christians.

      1. “Nothing in Smith was setting up one rule for Christians and another for non-Christians.”

        Prof. Volokh- there is, as you know, a difference between de facto and de jure.

        The rule applies to both equally. But given the backdrop of Christianity in the United States, it is also inarguable that neutral laws will have a disproportionate impact on non-Christian religions, and, moreover, that laws that favor Christianity tend to get grandfathered in. (Whether it’s under the rubric of ceremonial deism, or the idea that, hey, we just expect to get off Sunday, and everyone knows that Christmas is a non-religious holiday …etc).

        So while it is technically true, it also obscures some truth as well.

      2. Professor Volokh…Wouldn’t Gonzalez be relevant here? Has Philly used the least restrictive means to implement their policies under the Fair Practices Act?

        That is a question that has not been answered.

  6. the Court made clear that regulatory schemes that allow case-by-case discretion are not “generally applicable.”

    Perhaps this is a workable standard that would not eviscerate anti-discrimination law, but it isn’t at all clear that the city provides case-by-case exemptions.

  7. “Is has been common the last few years for the Court to render narrow decisions in an early case, declining invitations to overrule precedent, and then to grab the bull by the horns in a subsequent decision.”
    This is not exactly new: Brown v. Board of Education devoted much attention to the educational context of the challenged law, but was then followed by broader decisions striking down pretty much every other type of legal segregation. All of which led Herbert Wechsler, as I recall, to call the Court unprincipled.

  8. I am having trouble understanding how a religion can have a problem with two dudes that signed a civil license that grants them a few privileges while also in some states puts them at risk to pay lifetime alimony upon divorce?? How can our economy operate if anyone can throw a tantrum over something they don’t like and then chalk it up to their religious beliefs??

    1. If by ‘anyone’ you mean the City, and ‘their’ you mean CSS I think we’re in agreement. CSS didn’t want to associate with same-sex couples, same sex couples had plenty of other options and didn’t want to associate with CCS. The City threw a tantrum about a situation which was working just fine for all non-government parties involved.

      1. CSS doesn’t get to define marriage, our society has defined marriage a certain way and so if you are in a field in which the definition of marriage is important to you, and you disagree with the current definition, then get out of that field. So to me implicit in any marriage is that it involves two imbeciles surrendering rights to moronic state legislators…so I stay out of fields in which marriage and weddings play a big role.

        1. You DO realize that, by your logic, Obergefell was wrong to complain, because society had defined marriage as between a man and a woman and he shouldn’t have gotten involved since he disagreed with that definition.

          1. If you have a problem with society and challenge the status quo you must accept the consequences. So I applaud the baker in Masterpiece, but just as John Lewis knew he might get his head bashed in when he challenged the white Christians during the Civil Rights movement in Alabama, the baker must accept that he might be bankrupted by challenging society…so make sure you pick battles you won’t be embarrassed you picked in 40 years!! 😉

  9. I’d like to see the racial statistics on placement of children.

    Do they randomly assign black kids to white families and white kids to black families?

  10. Look, as a policy matter I believe we aren’t giving enough consideration to the fact that religion is a vital part of people’s identity and it’s a real shame that we can’t recognize that the message sent by allowing a tiny minority of bakers to have rules is very different than that sent in areas where the defacto rule is to discriminate. However, for all that is my policy view the legal arguments here seem crazy bad (different numbering).

    1) The fact that the city apparently criticized the belief that it was ok to discriminate against gay people is somehow suggested to be legal grounds to rule against the city even under Smith (neutrally applicable principles are fine even if they restrict religion). What the hell. I mean surely he must realize that the *reason* we enact neutrally applicable principles against things is because we think they are bad. It’s just nuts to suggest that it’s somehow deep religious animus for people to give the reasons they think a rule is important when someone wants to violate it. I mean what activity wouldn’t be subject to enhanced scrutiny on this view. You want to have sex with underage people or hunt endangered animals etc.. and you mention this to legislators they’ll no doubt react with all the reasons they think those things should be illegal in the first place whether you claim a religious motivation or not. It’s just absurd to say that government agents can’t articulate the positive (non-targeted) values their constituents wish them to apply without somehow engaging in religious animus.

    But this is the less important of the argument.

    2) The bigger claim is that somehow the fact that the city has the power to waive anti-discrimination requirements is proof that not waving them constitutes unconstitutional religious discrimination. HUH? The whole idea of granting agencies discretion is that we want them to weigh certain values in exercising it, values which are usually transmitted through the political process not explicit legislation.

    Consider the Smith case itself where native americans wished to use federally illegal hallucinogens in their ceremonies. I support their right to do so from a policy POV but surely the fact that the DEA can grant narrow exceptions to drug laws, e.g., to do scientific research, can’t give the use by the native american church constitutionally protected.

    I mean the idea behind those exceptions (whether or not legally restricted to them) is (in part) that sometimes studying drugs will help the country better cure, council and warn people away from them (and maybe that in other contexts the, imo stupid, reasons we have for wanting to outlaw drugs don’t even plausibly apply) but surely when the religious activity is the very thing that the regulator foolishly is tasked with stopping the fact that they have broad power to grant exceptions doesn’t change the fact that they aren’t going after the religion with special animus …indeed, if anything, they are much more positively disposed to it than similar non-religious use of psychedelics.

    In other words this argument is less a coherent call for religious liberty and more of a broadside against the idea of articulating (via politics) broad values messages and leaving individual administrative agencies substantial power to figure out when policies advance those goals. Indeed, if you really took this argument seriously and applied the same level of scrutiny here to every crazy religious view in the world you would either end up with complete gridlock or you would tear the whole idea of judicial restraint down as judges inject themselves into every last corner of government operation and pick and choose policy winners and losers in the guise of religious freedom clauses.

    3) I’ll mostly ignore the policy claims but I will add that it’s an important part of anti-discrimination laws to send a dignity message and a statement of values not just their direct operative effect. I think people often over value these but it’s surely not grounds to say therefore they are just being fuckers and have no real government interest.

Please to post comments