The Supreme Court decided a major religious liberty case this morning in remarkable fashion. All nine justices agreed that Philadelphia violated the First Amendment when it refused to allow Catholic Social Services (CSS) to continue providing foster care services in accordance with its religious beliefs concerning same-sex marriage. As the Court noted in Fulton v. City of Philadelphia, the Catholic Church had provided foster care services in Philadelphia for over 200 years. Tens of thousands of children have found homes as a result of these charitable services. But in 2018, the City moved to shut the foster care program down because the Church was unwilling to endorse same-sex or unmarried couples for foster placements. Even though no same-sex couple had ever even tried to foster through CSS, the City said it would no longer contract with CSS because of its refusal to place children with same-sex couples. As a result, CSS was put to the coercive choice of either endorsing same-sex couples or losing its ability to provide foster care services. The City was not willing to make an exception for CSS even though its standard contract provided that the Commissioner could make exceptions “in his/her sole discretion.”
This exception provision ultimately doomed Philadelphia’s case. Under Supreme Court caselaw since Employment Division v. Smith (1990) , a law or policy can burden religious exercise if it is neutral and generally applicable. But if the law or policy which burdens a person’s religious exercise is not generally applicable because it allows for exceptions, then it is subject to what the court calls “strict scrutiny.” Under strict scrutiny, the government must prove that it has a compelling interest in denying an exception to the person or group whose religious freedom is being burdened. Ultimately, Philadelphia failed to show that it had such an interest in denying an exception to CSS.
But in as much as today’s decision is a major victory for CSS, it is neither a complete victory nor an indication that the justices agree on how the Free Exercise Clause of the First Amendment should be applied. For while the court was unanimous in its result, the justices were severely split on how they believe the Court should have reached the result. In fact, CSS has expressly asked the Court to revisit and overrule Smith, but the majority of justices were unwilling to do so in this case.
Justice Alito, joined by Justices Thomas and Gorsuch, wrote separately to highlight the “startling consequences” of the Smith decision and criticize the majority’s unwillingness to abandon it. As Justice Alito points out, under Smith, the government could categorically ban the consumption of alcohol or the circumcision of infants so long as the bans were general and neutrally applicable. Such categorical bans would be allowed under Smith even it they worked to prevent the celebration of the Catholic Mass in the United States or ancient Jewish or Muslim practices.
As Justice Alito also noted, Congress was so concerned about the threat that Smith poses to religious freedom in America that it promptly and unanimously enacted two federal religious freedom statutes: the Religious Freedom Restoration Act (RFRA) in 1993 and the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. These statutes remain as important as ever because they provide broader protections than are currently available under the First Amendment. But RFRA only protects people against the Federal Government and RLUIPA only applies in the context of land use and institutionalized persons.
So, while today’s decision was a great win for CSS and supports religious liberty, it did not remove the threat Smith poses to so many other religious freedoms. As Justice Gorsuch wrote, “individuals and groups across the country will pay the price–in dollars, in time, and in continued uncertainty about their religious liberties.” At Dalton & Tomich, we will continue to serve those uncertain about their religious liberties and will remain at the fore of religious liberty litigation under statutes like RLUIPA.
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