Fulton v. City of Philadelphia and Free Exercise: A Debate Between Jordan Lorence (ADF) and Me

Part of the Federalist Society's "Feddie Night Fights."


The plan was originally to have Prof. Katherine Franke (Columbia Law School) debate Jordan Lorence, but at the last moment an emergency pulled her away, and I was substituted in. (I have long supported the Employment Division v. Smith view that the Free Exercise Clause doesn't generally secure a constitutional right to exemption from generally applicable laws, and filed an amicus brief on the subject in Fulton; this question is one on which many Federalist Society members have long disagreed with each other.) I certainly much enjoyed it, and I hope you will, too!

NEXT: Today in Supreme Court History: November 21, 1926

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  1. “(I have long supported the Employment Division v. Smith view that the Free Exercise Clause doesn’t generally secure a constitutional right to exemption from generally applicable laws,”

    I think extraordinary care needs to be taken here. “Generally applicable” laws can be designed to effectively discriminate against religion. They can also be selectively enforced, in such a way that religion is discriminated against. Instead, the law should endeavor to give exemptions to religion and religious practices where possible.

    Let’s demonstrate this a few different ways.

    1. The 18th amendment effectively outlawed alcohol. This would’ve also ended the practice of serving communion wine in chuches. But, as was appropriate, a special exemption was generally utilized.

    2. Areas that serve alcohol are required to have liquor licenses. But churches, generally do not. A way to effectively discriminate against religion, would be to require churches to have a liquor license to serve sacramental wine. Then, the local communities, as needed, would “run out of” liquor licenses. In such a way, then could effectively (but with generally applicable laws) outlaw religious practices.

    1. The point of his brief is not to rule out all religious exemptions to laws, but to say that as a general principle religious organizations need to follow the same laws as everyone else. Exemptions need to be done on a case-by-case basis. Ceremonial use of alcohol has long been considered one of those valid exemptions. And just to note, as a Jew, I know that Jews use alcohol in religion to a much larger extent then the Christians.

      1. But what is the basis of deciding on a “case by case” basis? Why this, and not that? And can this change if the powers that be decide “No, no exemption for this anymore”

        And yes, alcohol has been used by the Jewish and Christian faiths in their ceremonies for a very long time. And exemptions have been built into the law for that. There are certain Christian sects which have long-standing objections to being in the military. And exemptions have been built for that. And the Christian faith has for a very long time held a view that a marriage is a man and a woman. And shouldn’t an exemption be built for that, as much as possible?

        But if not, why keep conscientious objector status? What sets that apart as different? What sets ceremonial use of alcohol apart? Or, if we’re talking about Smith, peyote for that matter?

        In situations like this, some balancing of needs and rights should be needed by the government. What does allowing the religion to consume alcohol, or peyote really affect? What does allowing a single Christian sect to refer non-heterosexual marriages to other placement firms really affect? Where does the majority of the burden lie, and how can it be minimized?

        If CSS was the only provider in town, and if it was made impossible for gay couples to adopt due to the presence of CSS, then the burden would fall quite heavily on gay couples. But given the fact there are dozens of other providers, isn’t it more of a burden to force a religion to withdraw or give up its beliefs?

        1. The basis for deciding exemptions from neutral and generally applicable laws is the political process.

  2. All discrimination laws are ineffective and unconstitutional. They violate the right of association inherent in the Ninth Amendment, and Article 11 of the European Convention. That included Jim Crow laws, of course, another lawyer catastrophic mistake. If a baker does not want to bake for homosexuals getting married, I will gladly open a bakery across the street and welcome all the homosexual marriage business I can handle. They are rich, and have tremendous disposable income for a replica of the Vatican in a wedding cake. That is the remedy, market competition, market share loss.

    Black social pathology disparities were small, like 10% more of everything, crime, unemployment, bastardy, murder, from the Reconstruction to the 1960’s. Then civil rights laws were passed, and they went to 400%. Anti-discrimination laws devastated the black community.

  3. There is a bit of a contradiction, here, right?

    Suppose the government wanted to provide services to people, take the photograph example in the video.

    If the government said, we aren’t going to photograph jews and gentile weddings, that is an obvious equal protection violation.

    But if the government were to say to its employees, you must photograph jew and gentile weddings, under an expansive view of the free exercise clause thats a free exercise violation.

    I get that the case here wasn’t quite so clear cut as that, but the video presented it in stark terms. Ultimately, you do have a tension here that is difficult to resolve.

    My personal view is that Fulton wins and employment division v. Smith ought to go, but it should be a very narrow expansion. The catholic church, if you partner with them, can say we aren’t going to do this, but a catholic employee must. Where you draw the line is a mess, but I dont see another way.

    1. There is another way: get the government out of people’s lives as much as possible, restore freedom of association, and let people and markets decide.

      Not a very popular idea, limiting government; neither are markets, freedom of association, and liberty in general. But it does the trick and lets the bigots suffer in the market place.

      1. As a general principle, I think there’s considerable merit to this. If the bigot doesn’t want to make a cake for a gay couple, then people can expose his bigotry and see if the market punishes him. This is especially true in larger towns and cities, where the gay couple probably has a bunch of other cake shops to choose from, and are probably not greatly inconvenienced when they are rejected by one particular shop.

        The problem in the Fulton case is that, as Eugene noted in the video, we’re dealing with a system that places vulnerable children into the homes of adults they don’t know and have never met. A free market solution to this system, with no oversight, risks all sorts of problems, and those who suffer most are likely to be not the “agents” (the adoption agencies) or the “customers” (the foster families), but the “products” (the children themselves) of the system.

        Sure, adoption agencies worked great for a long time before government got its big ugly mitts involved. But did they really? How many foster kids were abused? We’ll likely never know. This doesn’t mean that government-run systems don’t have a lot of problems too, but if we’re going to talk about a history of religious choice and government interference, we would probably also need to look at the record of the Catholic church when it comes to “caring for” children.

        1. I understand how tricky the children problem is. But the government solution empowers hopelessly nanny solutions, like arresting moms who dash into a dry cleaners while their kids are in cars, or let their kids walk to school or take buses by themselves, and because there is no market with competition, and because the government judges start with the assumption that other government employees are correct by default, these errors take too long and too much money to correct. If the choice comes down to uncorrectable government goons and nannies vs abusive adoptive parents and agencies, I’d take the private sector any day; abusive parents are abusive and can be held accountable in either system, and it wouldn’t take many bad placements for agencies to lose their reputation and never recover, and in the worst cases, the adoption agency could probably be held accountable as accomplices at least.

  4. I also think some of the questioning was a little off, like, what if the government decided to take over education? Well it can’t. You have a right to start private schools. You have a right to homeschooling. You have a right to religious education. And the government cannot discriminate against religious education. All panelists probably agree with all of the decisions that have lead to that point.

    But here is an actual case in France: some food banks have put pork in soup intentionally to deter Muslims. This led to a ridiculous law saying food banks cannot serve pork soup. Which lead to a rather hilarious back and forth in the French government and pork soup became a national issue.

    Here, in the US, Muslims are free to start their own food banks. Even if the government wanted to, it cannot discriminate against those banks. Equal protection and free exercise work in tandem and you have good results. But imagine if employees start declaring a right to ignore government directives and refuse to provide religious accommodation in food. Wouldn’t that be problematic?

  5. Professor Volokh…I saw the ‘Friday Night Fight’ last night (with my son). You and Jordan Lawrence were great. The judge’s husband as the last caller was a neat twist also.

    One takeaway from what you argued last night. If you want to participate in a government program, guess what….they make the rules. Not sure I agree, but I understood it! 🙂

  6. First of all there is no suspense in this case, the cake is baked and a 6 to 3 decision against the city and in favor of religious bigotry will be handed down.

    Let me see if I can place this is some perspective. I am an American who is Jewish. As such my religion forbids me from eating pork. I live in North Carolina where the eating of pork is sacrosanct. The fact that North Carolina allows pork to be produced and consumed in this state is surely a violation of my religious freedom and I have petitioned the state to no avail that it must outlaw the production and consumption of pork. Surprisingly, I cannot find any support for my position amongst the most fervent of our citizens who fervently argue that they should have government support to act upon their prejudices because not to do so is a violation of their religious freedom.

    Instead, they tell me that I am free to abstain from eating pork, but have no right to impose my religious beliefs on them, particularly when the consumption of pork BBQ is so important to them. They simply do not understand how I could insist that they should not be allowed to eat pork when their such eating has absolutely no effect on my behavior or my life or anything about my practicing my religion.

    The rules which we have adopted in this nation to deal with the situation where religious beliefs conflict with basic human rights and equality is that a religious organization is free within its own religious activities to do pretty much as it believes (but not everything, no drugs, placing children in harm’s way, sanctioning polygamy etc) but that when a religious group enters the public world they must abide by the rules of the public world. If they are unwilling to do so, then they may withdraw from commercial and public activity and conduct their odious practices in the confines of their sanctuary.

    But that of course is not what they want. They want to impose their beliefs, their prejudices and their bigotry on society as a whole because they believe those beliefs are founded in piety and religion, the same way I want to impose my ban on eating pork on North Carolina because those who consume Q are blasphemous (I really don’t, just making a point. In fact, if you come on down I will take you to 12 Bones BBQ but if you don’t mind I will have the brisket).

    1. Close, but that doesn’t quite match the facts of the situation.

      A better analogy is this.

      You’re a Jew in North Carolina. And North Carolina makes a law that requires pork to be served and processed in all restaurants, delis, butcheries, and gatherings. As an observant Jew, you have a Kosher butcher and Deli in North Carolina. But the new law would REQUIRE you to process pork in your butchery and your Deli, which would effectively make it non-Kosher. You are given a choice…close your business or violate your beliefs

      1. No that is not the point.

        The point is that I consider that those Carolinians who refuse to outlaw pork in the state are doing so because they are anti-semetic, hate the Jewish people and hate religious people, just like those who oppose a religious group engaging in bigotry in their public role must hate Christian people and hate religious people.

        I had hoped that was clear.

  7. Or, that North Carolina passes a law saying I must serve non-Jewish persons who eat pork (but dont get their pork from me), and I complain that the law is the result of anti-Jewish sentiment and an attack on my religion.

    This is not about a product, it is about a society that requires those in the public arena treat everyone with dignity, respect and tolerance, particulrly when the behavior that those people object to does not impact the lives of those doing the objecting.

    1. That law would probably be unconstitutional under modern theory. So I dont get the analogy. And it is rightfully unconstitutional. What if the the restaurant owner is vegan and has a moral objection to cooking meat? Can the state force her/him to cook it? Can a state force Hindu to cook beef? That is a clear attack on Hinduism right?

      If you want pork, go to another restaurant. If you want beef, don’t expect to get it at a Hindu Indian restaurant. Thats well accepted.

      Of course, the case here is somewhat different, but if that is the analogy Fulton ought to win.

      1. You don’t get it.
        The correct analogy is that Vegan restaurant owner not wishing to provide Vegan food service to a meat eater (who is not eating meat at the Vegan restaurant) because doing so violates his/her religion which disallows eating meat, and the state saying that the Vegan restaurant has to serve the non Vegan.

        The state is merely insuring equality in the public marketplace, it is not attacking Veganism. And the Vegan restaurant is not endorsing the eating of meat by serving a Vegan meal to a non-Vegan.

    2. In France, maybe you can make that argument. But Lacite is unconstitutional here. And imo rightfully so.

      1. “Laïcité is the product of the long evolution of the relationship between the Church and the State.”

        So not so pure…

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