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Sweet Land of Liberty

Government shouldn’t be allowed to curtail religious expression just to make a statement


Less than a year ago, I wrote here about Professor Mark Rienzi’s upbeat view on the prospects for religious liberty in America. Rienzi, a law professor at Catholic University of America’s Columbus School of Law, is particularly qualified to opine on the topic as president of the Becket Fund for Religious Liberty. He is perhaps America’s leading legal advocate for the rights of religious individuals and institutions and has personally represented parties or amici in many of the high-profile religion cases heard by the Supreme Court in recent years.

I quoted Professor Rienzi as saying that the Court’s recent religion-related decisions have all “harmonized around the principle that, despite all our honest and deep-seated disagreements about important questions, robust protection for religious dissenters is essential to our living together in a pluralistic society.” He predicted that “the court’s move toward anchoring a pluralistic approach within the law of religious liberty is part of a long-term trend… [and it] looks set to extend the trend next term….”

He noted that the court had a very consequential religious liberty case called Fulton v. City of Philadelphia on its docket for the 2021 term. [For a fuller description of the case and a less sanguine view of the ruling, see Binyamin Rose’s interview with Nathan Lewin in this week’s Rose Report. —Ed.]

This case, he wrote, would “provide an opportunity for the court to continue its project of enforcing both constitutional and statutory protections designed to allow for a pluralistic society in which people with varied beliefs can coexist in peace.”

In Fulton, Philadelphia city officials attempted to exclude Catholic Social Services (CSS), a foster care agency, from continuing to work with the city to place children in foster homes due to its refusal to consider placement with same-gender couples.

Last week, the Court issued its decision in Fulton, and it seems to bear out much of Professor Rienzi’s optimism in many respects. As Luke Goodrich, a top litigator for the Becket Fund, commented after the decision came down, the “unanimous victory in Fulton is a powerful reminder: Religious freedom is on a massive, decade-long winning streak at the Supreme Court. Eighteen of the last nineteen religious freedom cases are wins. Fourteen wins are by unanimous or supermajority vote.”

The big surprise in this closely watched case wasn’t that the Court ruled in favor of CSS; that was expected based on how oral arguments went last November. It’s that the ruling was 9–0, with every justice, right, left, and center voting for the position that the city had violated CSS’s First Amendment right to the free exercise of religion.

Could the decision have been even more favorable for religious liberty? Absolutely, in that the Court declined to revisit Employment Division v. Smith. That’s a controversial 1990 case in which Justice Antonin Scalia, writing for a five-justice majority, held that laws that are neutral and generally applicable do not violate the free-exercise clause even if they burden religious liberty. That is to say, if a law is “neutral,” — i.e., it isn’t aimed at the exercise of religion, and it’s “generally applicable,” meaning it applies to everyone equally — then it can’t be challenged on First Amendment grounds. In Smith, for example, neutral, generally applicable drug laws were allowed to override the religious liberty right of Native Americans to smoke peyote as part of a religious ritual.

Chief Justice John Roberts’s majority opinion in Fulton, joined by five justices, found that the nondiscrimination requirement in Philadelphia’s contract with CSS was not “generally applicable” and was thus not covered by the Smith rule. This enabled the Roberts opinion to sidestep the question of whether Smith should be overruled. While in a concurring opinion, Justice Barrett, joined by Justice Kavanaugh, signaled openness to discarding Smith (but uncertainty about what might replace it), Justice Alito, in a lengthy opinion concurring in the judgment that was joined by Justices Thomas and Gorsuch, called for precisely that step to be taken.

It certainly would be preferable for the cause of religious liberty were Smith to be overruled. But that disappointment ought not to obscure the very significant victory for the cause that Fulton represents, and in particular, the fact that it was a unanimous decision.

For one thing, as Roger Severino, a senior fellow at the Ethics and Public Policy Center, wrote:

Unanimity is achieved at the Supreme Court for really only two reasons: The case is easy, or they want to send a message in controversial ones. Here, they are clearly sending a message that will allow us to, hopefully, finally put to rest the slanderous charge that, as Philadelphia put it, [CSS’s policy was an example of] “discrimination that occurs under the guise of religious freedom.” Religious groups that run adoption and foster-care agencies, hospitals, food banks, houses of worship, schools… are not cynically and fraudulently “using religion” when they serve the poor or the needy. They are exercising religion in all sincerity and out of love… By its actions, the Court is saying people with sincere faith-informed understandings of social issues that cut against the grain of secularist thought aren’t to be treated as bigots, and government needs to back off.

This case also clarifies that government shouldn’t be allowed to curtail religious expression just because it wants to make a statement about its views on social issues. The city of Philadelphia, after all, was unable to document a single instance of a same-gender couple seeking to adopt that had approached CSS and was turned away on same-gender grounds, and there were over 20 other local foster care agencies that were willing to make such placements.

Moreover, CSS’s policy was not even focused on the same-gender issue. It would not place a child with an unmarried couple of any kind, either, based on a belief that it’s in a child’s best interest to live in a home created by a married mother and father.

SINCE NO ONE WAS ACTUALLY BEING HARMED by the CSS policy, the only discrimination in this case was that of Philadelphia against Catholics. The city was essentially saying that on principle, a religious institution should not be allowed to hold views that Philadelphia abhors. As Mr. Severino put it, the Fulton ruling “means generalized interests in… orientation and gender-identity-discrimination laws cannot automatically force individual religious organizations and people to act contrary to their beliefs. This is huge. It will help stop the abuses of [such] laws where people purposely seek to ‘get offended’ because they fear there is still someone somewhere who won’t bake a custom cake celebrating a [same-gender ceremony].”

Finally, Fulton is important because Philadelphia had argued that it should be able to limit a foster care agency’s First Amendment rights “when managing its internal operations” and that those who “enter into government employment or contracts” accept “certain restrictions on their freedom as part of the deal.” But the Court soundly rejected that position.

In sum, this latest decision seems like a further vindication of Professor Rienzi’s assertion that today’s Court is “systematically building precedent on the foundational idea that religious freedom can help people in a diverse, pluralistic society live together in peace — even amid deep disagreements over fundamental issues…. Although the justices do not always agree on each application of these principles to particular factual scenarios, they do seem largely in agreement on the principles themselves, which is good for both the court and the country.”

A final takeaway from Fulton: At the Dispatch, David French writes that it’s inaccurate to “refer to the current court as a ‘6–3 court.’ While there may be some 6–3 cases, with the GOP appointees on one side and the Democratic appointees on the other, those cases are likely to be rare. Indeed, they’re likely to be rare even in the most hot-button and politically charged cases that come before the Court…. Judges are human beings. They are not ideological automatons… the Supreme Court is more originalist and textualist than it was before Trump’s presidency, but that does not mean that we can easily and simply predict the outcomes of cases on the basis of partisan predictions.”

Professor Josh Blackman put it more bluntly, writing that “We do not have a 6–3 conservative Court. The Chief may have been conservative at one point, but he has embarked on a life-long odyssey to pilot the Court to middling moderation. Justice Kavanaugh was always cut from the same cloth as Chief Justice Roberts. He played the part to get the job, but has consistently showed his true colors. And Justice Barrett is not who conservatives thought they were getting.”

Court-watchers, stay tuned.


Originally featured in Mishpacha, Issue 866. Eytan Kobre may be contacted directly at kobre@mishpacha.com

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