On June 17, the Supreme Court finally issued a decision in Fulton v. Philadelphia, a showdown between the City of Brotherly Love and Catholic Social Services. At issue was whether the city could deny the religious charity a permit to provide foster services for children, based on the charity’s refusal to place children with couples in same-sex marriages. At first glance, the Court’s decision was a resounding win for the Catholic charity: all nine justices agreed that the charity won and the city lost. But the unanimity of the Court’s holding masks significant disagreement among the justices in reasoning.

The Court majority sidestepped the question of whether to reexamine its religious-liberty doctrine, instead basing its decision on idiosyncratic features of Philadelphia and Pennsylvania public-accommodation law and the city’s specific foster-care contract. The Court thus left undisturbed—for now—its 1990 holding in Employment Division v. Smith, the decision that gave federal, state, and municipal governments broad constitutional leeway to infringe on religious practice. But religious-liberty litigation isn’t going away, and Catholic Social Services remains in legal jeopardy—much like Masterpiece Cakeshop, the bakery involved in a similar Supreme Court case decided three years ago.

The First Amendment bars the government from “prohibiting the free exercise” of religion. While the amendment applies only to Congress, the Supreme Court has long held that the Free Exercise Clause applies likewise to state and local governments through the post–Civil War Fourteenth Amendment, which imposes civil rights limitations on the states.

In the decades before Smith, the Supreme Court had interpreted the constitutional protection broadly: any governmental interference with religious practice had to be “narrowly tailored” to meet a “compelling government interest.” But in the 1980s, the Court began struggling with cases in which individuals asserted broad religious rights in tension with generally applicable government laws—including religious-based objections to the assignment of a Social Security number and Native American tribes’ attempts to block government-development approvals for ancestral lands deemed religiously significant.

Smith was similar. Oregon had refused to grant unemployment benefits because claimants had been fired for work-related “misconduct.” The misconduct in Smith was the consumption of an illegal, psychoactive drug—peyote. And the unemployed workers had been drug-rehab counselors, making the private facility’s decision to terminate their employment quite understandable. But for the counselors, consuming the drug was an essential part of their traditional Native American religion.

As it had done in the earlier Social Security and land-development cases, the Court in Smith might have ruled in Oregon’s favor under its traditional Free Exercise schema, perhaps by reasoning that the government’s regulation of controlled substances was in fact a “compelling state interest”—an argument Justice Sandra Day O’Connor articulated in concurrence. Or it could have ruled narrowly on the counselors’ behalf, as Justices Harry Blackmun, William Brennan, and Thurgood Marshall argued in dissent. (Such a ruling, however, would doubtless have spurred many subsequent drug-possession criminal appeals.)

Instead, the Smith Court reformulated its religious-liberty test under the Free Exercise Clause entirely. Under the Supreme Court’s new formulation, any government law could infringe on religious practice, provided it was a “neutral law of general applicability.”

The Smith holding was not borne by a left-wing, anti-religious animus: it was authored by devout Catholic and conservative stalwart Antonin Scalia. But it prompted a furious backlash across the political spectrum. In 1993, then-congressman Chuck Schumer (D-NY) and then-senator Ted Kennedy (D-MA) introduced the Religious Freedom Restoration Act (RFRA), which essentially purported to override the Supreme Court’s new decision and restore the old religious-freedom rule. RFRA prohibited government infringements on exercise of religion “even if the burden results from a rule of general applicability,” and required any such infringements to be predicated upon a “compelling government interest.” The RFRA law passed the House unanimously and the Senate 97–3, and was signed into law by President Bill Clinton. After the Supreme Court decided that RFRA could apply only to the federal government, not the states, a majority of state governments in turn enacted similar laws.

The former broad political consensus around religious liberty in general and RFRA in particular has evaporated—running headlong into the culture-war issues of abortion and sexual orientation. Obama administration decisions to mandate employers’ coverage of abortifacient contraceptives under the Affordable Care Act (ACA) even against religious objectors spurred a series of recent cases considering the interplay of that law, the federal RFRA, and broader administrative-law principles. And because the federal RFRA doesn’t apply to the states and not all states have enacted their own RFRA-style statutes, state and local enforcement of non-discrimination laws, applied to sexual orientation, has spurred such litigation as 2018’s Masterpiece Cakeshop v. Colorado and this week’s Fulton.

The cases are similar. In Masterpiece, cakeshop owner Jack Phillips refused to make custom cakes specifically for same-sex weddings, citing religious objection. The Colorado Civil Rights Commission decided to sanction him for this refusal, citing state antidiscrimination law. In Fulton, Catholic Social Services had for decades worked to place at-risk children with foster parents but refused to place parents with romantically involved same-sex couples, citing church doctrine. Philadelphia declined to recertify the charity based on conflicts with a nondiscrimination clause in its contract and a public-accommodation ordinance.

One would think that each case might run straight into Smith: broadly speaking, nondiscrimination statutes and ordinances are generally applicable, not targeting religions specifically. In Masterpiece, however, the Court majority pointed to inflammatory comments made by Colorado commissioners who had compared Phillips’s views to slavery and the Holocaust, betraying “religious hostility on the part of the State itself.” And in Fulton, the Court majority interpreted the foster-placement service provided by the Catholic charity to fall outside the public-accommodation ordinance—thus ruling that the non-discrimination provision of that ordinance did not apply to the charity at all. And while the city’s contract with the charity obviously did apply, the Court majority read the contract as not prescribing a “generally applicable” rule under Smith, because it gave the city’s commissioner “sole discretion” to waive the non-discrimination provision. Thus, the “compelling” interest test that predated Smith applies—and Philadelphia’s interest in denying the Catholic charity a license failed to meet that high bar, at least under this case’s specific fact pattern.

Justice Neil Gorsuch, in a separate opinion joined by justices Samuel Alito and Clarence Thomas, disagreed with the majority’s interpretations of the contract and public accommodation law. In essence, these justices argued, the majority opinion was a tortured effort by Chief Justice John Roberts to avoid having to reexamine Smith in a politically charged case. Yet Smith should have applied—and been overruled. Justice Alito, in another separate opinion joined by the other two, authored essentially a 77-page brief making the case that Smith was wrong.

These issues are complex. Justice Gorsuch may well be right that the chief justice strained to resolve the case on the narrowest grounds possible and avoid a definitive reconsideration of Smith. As a general matter, the chief justice prefers that the Court move slowly, avoiding questions when possible and letting them “simmer.” On the interpretation of the contract, I think Gorsuch may have the better read, though sufficient ambiguity allows reasonable minds to disagree.

What is clear is that someday, in some case, the Court will inevitably reexamine Employment Division v. Smith—and, in some fashion, reverse its holding. In yet another separate opinion, new justice Amy Coney Barrett opined that “the textual and structural arguments against Smith” are “compelling.” Justice Brett Kavanaugh joined her opinion in full. (Justice Stephen Breyer joined her opinion only in part, avoiding that formulation; but he has previously joined another opinion, by Justice O’Connor, which questioned Smith on an alternative rationale.) For those counting at home, that totals six of the nine Supreme Court justices who have directly rejected or sharply questioned Smith’s holding.

Less clear is exactly what doctrine that future Supreme Court will embrace to replace Smith’s permissive standard. Justices Alito, Gorsuch, and Thomas clearly support taking the Court back to its prior standard: requiring that infringements on religion be narrowly tailored to meet a compelling state interest. But Justice Barrett’s opinion, joined by Kavanaugh and Breyer, was more circumspect—and expressly “skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime.”

So uncertainty abounds. A state-court ruling that Philadelphia’s public-accommodation law applies to foster-care charities puts Catholic Social Services right back into court. And Philadelphia can make that happen with just a slight modification to its foster-care contract. In the meantime, individuals and religious institutions—from Masterpiece Cakeshop’s Jack Phillips to Catholic Social Services—will have to keep fighting it out in court.

Photo by JOSE LUIS MAGANA/AFP via Getty Images


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