The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.