The Circularity of Fulton

The law is reviewed with strict scrutiny because of the exemptions. And the state's interest is not compelling because of the exemptions.

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Chief Justice Roberts's majority opinion in Fulton is very short. And the constitutional analysis is circular. In short, the law is reviewed with strict scrutiny because of the exemptions. And the state's interest is not compelling because of the exemptions. Take out the exemptions, and it is not clear how this case would come out. Let's walk through the analysis.

First, the Court finds that Philadelphia's regime is not generally applicable because the government has the power to grant exemptions:

Like the good cause provision in Sherbert, section 3.21 incorporates a system of individual exemptions, made available in this case at the "sole discretion" of the Commissioner. . . .

No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions in section 3.21 renders the contractual nondiscrimination requirement not generally applicable.

Second, because the regime is not generally applicable, the law would be reviewed with strict scrutiny.

CSS has demonstrated that the City's actions are subject to "the most rigorous of scrutiny" under those precedents. Lukumi, 508 U. S., at 546. Because the City's actions are therefore examined under the strictest scrutiny regardless of Smith, we have no occasion to reconsider that decision here.

A government policy can survive strict scrutiny only if it advances "interests of the highest order" and is narrowly tailored to achieve those interests. Lukumi, 508 U. S., at 546 (internal quotation marks omitted). Put another way,so long as the government can achieve its interests in a manner that does not burden religion, it must do so.

Third, the Court does not consider whether the policy is "narrowly tailored." Instead, it analyzes whether the government has proffered compelling state interests.

Fourth, the Court favorably cites O Centro, a RFRA case, which held that compelling interests must be defined with some precision:

The City states these objectives at a high level of generality, but the First Amendment demands a more precise analysis. See Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 430–432 (2006) (discussing the compelling interest test applied in Sherbert and Wisconsin v. Yoder, 406 U. S. 205 (1972)). Rather than rely on"broadly formulated interests," courts must "scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants." O Centro, 546 U. S., at 431. The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. 

(Roberts wrote O Centro in his first term on the bench.) This passage may be the most important jurisprudential development of the entire case. In theory at least, courts could find that enforcing non-discrimination policies, by itself, is not a compelling interests. Alas, the Roberts Court doesn't quite go that far. The following two paragraphs on pages 14 and 15 are very much limited to the specifics of the case.

Fifth, the power to grant exemptions renders the City's interest not compelling. Yes, the same exemptions that triggered strict scrutiny in the first place:

That leaves the interest of the City 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." Masterpiece Cakeshop, 584 U. S., at ___ (slip op., at 9). 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. See Lukumi, 508 U. S., at 546–547. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others. 

Fulton strikes me as circular. If the exemptions are removed, the state would seem to have a compelling interest, and the law would be generally applicable. CSS is back to rational basis land under Smith. The entire constitutional analysis turns on these specific exemptions.

Do many non-discrimination ordinances have such unbridled discretion to grant exemptions? Would this regime have any impact in the ongoing Jack Phillips litigation in Colorado? I'm not sure how far this decision can extend to other contexts.