John J. Bastiat / June 22, 2021

A Religious Liberty Win That Wasn’t Really a Win

Bad Supreme Court precedent still stands, which enables further trampling of basic rights.

In a nine-zip smackdown to the City of Philadelphia, the Supreme Court ruled that city officials could not ban Catholic Social Services (CSS) from Philadelphia’s foster care system for CSS’s refusal to place children with same-sex or unmarried couples. At first blush, Fulton v. City of Philadelphia sounds like a slam dunk for religious liberty and the Rule of Law. But not so fast.

Sadly, this is the same kind of mixed-bag jurisprudence we’ve come to know and expect from the Roberts Court — a unanimous, seemingly pro-conservative ruling with a zero-to-negative impact on the flawed underlying law. In other words, Fulton has all the hallmarks of a textbook Roberts Court: Consensus trumps Constitution.

As background, Philadelphia and CSS had enjoyed an amicable relationship for over 50 years with no issues. No issues, that is, until 2018, when the Leftmedia provoked an issue, highlighting CSS’s refusal to consider same-sex or unmarried couples as foster parents. None had even applied, but that was beside the point. In the wake of further activist pressure, Philadelphia terminated its contract with CSS, forcing CSS into court in defense of its religious liberty.

On the positive side, the Court ruled for CSS. The Court found that CSS had been discriminated against by city officials who adeptly exploited the discretionary loopholes drafted into the contract between CSS and Philadelphia. These loopholes permitted officials to decide in their sole discretion whether an exception to the city’s nondiscrimination rules would apply to a particular service provider.

In reviewing the issue, the Court referenced the judicial standard for religious liberty, the Supreme Court case Employment Division, Department of Human Resources of Oregon v. Smith (1990), written by the legendary Justice Antonin Scalia — and perhaps his only clear “miss” in a record of otherwise impeccable jurisprudence. Smith held that as long as laws are generally applicable and equally burden both the religious and nonreligious alike, those laws do not offend the First Amendment’s Free Exercise (of religion) provisions.

This decision seems reasonable on its face — it certainly sounds very ecumenical, at least, in its method of reviewing a law in terms of whether the law applies evenhandedly to all. But Smith is fundamentally flawed, and we’ll come back to that.

Citing Smith, Justice Roberts distinguished the actions of Philadelphia’s city council by saying, “A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.” The contractual carve-out effectively provided such a mechanism, Roberts argued, so the law was not “generally applicable” and thus faced examination under a much narrower lens.

A policy will survive vetting through that sharper lens only if it furthers a compelling governmental purpose and is narrowly tailored to accomplish that purpose. Few laws can withstand this gauntlet, and Philadelphia’s was no exception. But as Roberts noted, this issue had nothing to do with discriminating against homosexual couples; rather, it centered on whether Philadelphia could force CSS to act directly against its religious beliefs. The Court’s answer: No. So far, so good.

Beyond this cursory review of the case, however, the wheels start to come off, as the underlying law from Smith is itself shown to be problematic.

The first evidence of the fault lines in current religious liberty jurisprudence arise from the fact that this “unanimous” decision comprised four separate opinions. Roberts was joined in his Opinion of the Court by the three leftist justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — as well as by Justices Brett Kavanaugh and Amy Coney Barrett. Meanwhile, Justice Samuel Alito wrote a concurring opinion joined by Justices Neil Gorsuch and Clarence Thomas. Gorsuch also wrote his own concurrence, which was joined by Thomas and Alito. And Barrett wrote a concurrence joined by Kavanaugh and partially joined by Breyer.

A deeper dive into these concurrences reveals the underlying problems of Smith, along with exposing the Court’s failure to address the question of whether Smith should be overturned. For example, Alito’s 77-page concurrence reads more like an anti-Smith treatise than a concurrence. Gorsuch’s concurrence goes even further, becoming a scathing attack of Roberts’s cowardice to address Smith. And Barrett’s concurrence straddles the judicial fence, in essence stating that while Smith was wrongly decided, replacing it might be a difficult task, thus her support for deciding Fulton on narrower grounds.

Like us, the Court’s three most conservative justices, Alito, Thomas, and Gorsuch, all favor striking down Smith. Alito’s well-reasoned concurrence best explains this rationale by pointing out the fact that while CSS has won this particular battle, because the Court has refused to address Smith, this war is far from over. If Philadelphia were to make its nondiscrimination policy absolute (i.e., no exemptions), for example, the new law would have “general applicability” and would treat both the religious and nonreligious alike, in compliance with Smith.

As Alito puts it, “Voilà, today’s decision will vanish — and the parties will be back where they started.” He added, “This decision might as well be written on the dissolving paper sold in magic shops.” Indeed, as CSS will soon discover, this is only a brief respite in its fight to preserve its religious freedoms against an array of increasingly hostile activism.

Gorsuch drives even further: “A majority of our colleagues, however, seek to sidestep the question. … On the surface it may seem a nice move, but dig an inch deep and problems emerge.” Gorsuch goes on to accuse the majority of playing a “statutory shell game,” contorting the facts and law to dodge Smith, in effect. Unmistakably directing his comments to the Chief Justice’s lack of courage, Gorsuch hammers home his point:

What possible benefit does the majority see in its studious indecision about Smith when the costs are so many? … Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid “picking a side.” But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.

Indeed, as Justice Gorsuch alludes to, many laws favored by radical leftists stand to run roughshod over the religious freedoms of millions, since these radicals could trample others’ religious freedoms with abandon, provided those laws are evenhandedly applied. Citing the example of the plight of cake baker Jack Phillips in the case Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), Gorsuch adds:

After being forced to litigate all the way to the Supreme Court, we ruled for him on narrow grounds similar to those the majority invokes today. Because certain government officials responsible for deciding Mr. Phillips’s compliance with a local public accommodations law uttered statements exhibiting hostility to his religion, the Court held, those officials failed to act “neutrally” under Smith. But with Smith still on the books, all that victory assured Mr. Phillips was a new round of litigation — with officials now presumably more careful about admitting their motives. A nine-year odyssey thus barrels on. No doubt, too, those who cannot afford such endless litigation under Smith’s regime have been and will continue to be forced to forfeit religious freedom that the Constitution protects. (citations omitted).

Indeed, Phillips just lost the first round of yet another such battle for refusing to make a “gender transition cake” for an activist who intentionally targeted the Christian cake maker with another round of legal harassment. This is not what the First Amendment intended by its Free Exercise Clause — thus the alarm bells conservatives are sounding everywhere over Smith. And as to Barrett’s concern over replacing Smith, Free Exercise jurisprudence did just fine prior to Smith; it will do fine without it, once again.

For now, this hollow victory in Fulton will briefly permit CSS to exercise its religious freedoms. But by kicking the Smith can down the road, the Roberts Court has once again upped the ultimate jurisprudential costs when the tab comes due. Unfortunately for CSS, Jack Phillips and other frontline fighters in this constitutional struggle, this decision is simply one more in the whack-a-mole war for religious freedom arising in the wake of Smith. As it stands, if a highly discriminatory practice against a religious belief is instituted across the board and with no exceptions, as far as the Supremes are concerned, this First Amendment guarantee remains intact: “[Government] shall make no law … prohibiting the free exercise [of religion].”

Orwell would be proud.

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