The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For 60 years, the Court has been considering when religious objectors should get religious exemptions from generally applicable laws.
- In Sherbert v. Verner (1963), the Court (in an opinion by Justice Brennan), held that religious objectors are generally entitled to such exemptions, unless denying the exemptions is the least restrictive means of serving a compelling government interest.
- In Employment Division v. Smith (1990), the Court (in an opinion by Justice Scalia), held that such exemptions from neutral, generally applicable government actions are generally not constitutionally required. But when the government "has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason," because when there is such a discretionary exemption system, the law isn't generally applicable. (Likewise, if the law deliberately targets religion, it isn't generally applicable, either.)
- Since Smith, the federal government and about 2/3 of the states have implemented either statutory general religious exemption schemes (so-called Religious Freedom Restoration Acts or RFRAs) or similar schemes under state constitutions; but 1/3 of the states lack such schemes, so the broad Free Exercise Clause question is especially important there.
- In Tandon v. Newsom (2021), which followed up on Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the Court (in a per curiam agreed to by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) also concluded that strict scrutiny is required whenever "government regulations … treat any comparable secular activity more favorably than religious exercise," even when they do so using categorical exceptions rather than discretionary ones.
In today's Fulton decision, the Court resolved the religious exemption question narrowly, but showed that the Justices' views are sharply fractured on the broader issue. The case arose out of a Philadelphia policy that required foster care evaluation agencies (which contract with the city to evaluate prospective foster parents for foster child placements) not to discriminate based on, among other things, sexual orientation. Here is how the opinions resolved this:
[1.] The majority opinion by Chief Justice Roberts, joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett: When a legal rule allows for "entirely discretionary exceptions" (e.g., that a foster care evaluation provider "shall not reject … prospective foster or adoptive parents … based upon … their … sexual orientation … unless an exception is granted by the Commissioner or the Commissioner's designee, in his/her sole discretion"), the government must generally provide such exceptions for religious objectors as well.
[A.] That is true even when the government is acting as manager (e.g., administering government contracts or benefits programs, or presumably governmental employment), not just when it's acting as sovereign, ordering private citizens to do or not do things using their private property.
[B.] And it's true even if this discretionary power has never been used. "The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it 'invite[s]' the government to decide which reasons for not complying with the policy are worthy of solicitude—here, at the Commissioner's 'sole discretion.'"
[C.] The government might in theory be able to justify denial of a religious exception (even where other exceptions are available in the government's discretion) but only if the denial passes "strict scrutiny"—"if it advances 'interests of the highest order' and is narrowly tailored to achieve those interests." ("[S]o long as the government can achieve its interests in a manner that does not burden religion, it must do so.") And the existence of the discretionary exception system tends to undermine any claim of narrow tailoring; for instance, in this case:
[T]he City [asserts an interest] in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for "[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth."
On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City's contention that its nondiscrimination policies can brook no departures. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.
[D.] But what about the broader question: What if there is no discretionary exception in the government rule, and the rule categorically forbids (or mandates) certain behavior, perhaps subject to some categorical (nondiscretionary) exceptions? When should religious objectors get exemptions from such generally applicable rules? The Court deliberately doesn't answer that question.
[2.] Justice Barrett, joined by Justice Kavanaugh, concurring: The original meaning of the Free Exercise Clause is unclear on the broader question of religious exemptions from generally applicable laws, but "As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination." Yet Justices Barrett and Kavanaugh are "skeptical about swapping Smith's categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court's resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced." In particular,
To name a few: Should entities like Catholic Social Services—which is an arm of the Catholic Church—be treated differently than individuals? Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) [providing broad protection for certain decisions by religious institutions -EV]. Should there be a distinction between indirect and direct burdens on religious exercise? Cf. Braunfeld v. Brown (1961) (plurality opinion). What forms of scrutiny should apply? Compare Sherbert v. Verner (1963) (assessing whether government's interest is "'compelling'"), with Gillette v. United States (1971) (assessing whether government's interest is "substantial"). And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way? See Smith.
Justice Breyer expresses no opinion on whether the original meaning of the Free Exercise Clause supports religious exemptions, and on whether the reason for heightened scrutiny stems from text and structure instead. (In City of Boerne v. Flores (1997), he joined Justice O'Connor's argument that concluded original meaning does support such exemptions.) But he agrees with Justices Barrett's and Kavanaugh's skepticism of categorical strict scrutiny here.
[3.] Justice Alito, joined by Justices Thomas and Gorsuch, concurring in the judgment: Strict scrutiny should be the test, regardless of whether the law lets the government grant discretionary exceptions. And the Court should resolve the question now:
[The majority] decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today's decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today's decision will vanish—and the parties will be back where they started. The City will claim that it is protected by Smith; CSS will argue that Smith should be overruled; the lower courts, bound by Smith, will reject that argument; and CSS will file a new petition in this Court challenging Smith. What is the point of going around in this circle?
I hope to have more to say soon about all this, but for now I thought I'd just summarize the opinion, and the signals it sends for Free Exercise Clause litigation going forward.