While the nation focused on counting votes on Wednesday, the United States Supreme Court heard arguments in a case that could dramatically expand protections for religious liberty.
Lawyers for Philadelphia argued that the city should be allowed to discriminate against religious social service providers as long as the rules it uses are “neutral laws of general applicability,” citing a 1990 decision penned by conservative legal giant Antonin Scalia. Lawyers for Catholic Social Services, on the other side, argued the court should reconsider Scalia’s previous ruling in Employment Div. v. Smith, because it established a standard that allows governments to target religious minorities and place significant burdens on what the First Amendment calls their “free exercise.”
“The Free Exercise clause is at the heart of our pluralistic society, and it protects petitioners’ vital work for the Philadelphia community,” attorney Lori Windham argued in Fulton v. City of Philadelphia.
“The city is reaching out and telling a private religious ministry—which has been doing this work for two centuries—how to run its internal affairs. And trying to coerce it to make statements that are contrary to its religious beliefs as a condition of continuing to participate in the religious exercise that they have carried out in Philadelphia for two centuries.”
In 2018, a city official read a newspaper story about conservative Christian opposition to same-sex foster parents. Philadelphia had long contracted foster care services to Catholic Social Services. There weren’t any complaints about the church-run organization discriminating against LGBT people, but the official was nonetheless concerned and brought the issue to the city council. The council changed its contracting policies and passed a resolution opposing “discrimination that occurs under the guise of religious freedom.” The entire process took three days.
Catholic Social Services asked for an exemption from the city, noting it would be happy to refer same-sex couples who wanted to foster to the more than two dozen other agencies that also contract with the city. LGBT people wouldn’t be prevented from fostering, and the Catholic agency shouldn’t be required to give up its religious convictions just because they are unpopular. The city refused, saying the new standards had to be equally applied to everyone.
“A universal clause in every contract bars sexual orientation discrimination,” said Neal Katyal, the attorney representing Philadelphia. “That clause contains no exceptions, and it applies equally to every [foster care agency], religious and secular alike.”
Scalia, writing for the majority, said laws that specifically prohibit religious activity were not allowed under the First Amendment, but laws that incidentally prohibit religious activity are. As long as the law is not targeted at religious exercise, it is fine.
According to Scalia, this does “place at a relative disadvantage those religious practices that are not widely engaged in.” But that’s unavoidable. Religious minorities will receive less leeway for the exercise of their faith if it’s unpopular and they don’t have the political power to win legislative exemptions for themselves. The other option, he wrote, is “a system in which each conscience is a law unto itself”—pluralism leading to complete anarchy.
As American culture grows more accepting of LGBT people and the court has expanded protections of LGBT rights, religious conservatives have begun to worry that they will be the ones at a “relative disadvantage.” If traditional Christian teaching rejecting homosexual activity as sinful is widely unpopular, then cities and states are not likely to exempt religious organizations from “generally applicable” laws against LGBT discrimination. That could make life difficult for foster care services, Christian wedding cake bakers, evangelical colleges, and others, just as laws against drug use have made it hard for the Native American Church to practice its peyote sacrament.
The standard that Scalia set up has also been applied to Santeria priests who wanted exemption from local animal cruelty ordinances to sacrifice chickens, peace activists who don’t want to pay the portion of their taxes that funds the US military, and, quite recently, churches seeking exemptions from COVID-19 restrictions on public gatherings.
The court has, in recent years, protected religious liberty in multiple rulings, deciding in favor of religious business owners, religious employers, and religious schools. With the recent addition of three conservative justices—two of them Catholic—it does not seem like the court is poised to change course.
Court observers say, however, that the justices may not take the opportunity. They could, instead, say the city of Philadelphia did not meet the standard of a “generally applicable rule” because the council was specifically targeting the Catholic foster care agency. That would be similar to the court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, which focused narrowly on the commission’s process for evaluating the cake shop owner.
The justices might worry that overturning Smith would open up every city and state to unending lawsuits, as people attempt to win exemptions from every possible regulation. “The practical advantage of Smith,” a legal advocate for local governments argued, “is that it is simple. Smith is a bright line rule; no one is entitled to an exception from a valid, neutral, generally applicable law.”
The case is also one of the first heard by the newest justice, Amy Coney Barrett. Barrett clerked for Scalia and is seen as his legal disciple. It would be surprising if one of her first votes overturned one of his landmark opinions.
Justice Sonia Sotomayor, one of the more liberal judges, indicated interest in a limited ruling on religious liberty during the oral arguments.
“If one wanted to find a compromise in this case,” she asked one of the lawyers, “can you suggest one that wouldn’t do real damage to all the various lines of laws that have been implicated here?”