For Christians, the rule should be something like this: Protect other people’s religious liberty as you would like your religious liberty to be protected.
Many believers will celebrate today because the Supreme Court ruled in Fulton v. Philadelphia that Catholic Social Services in Philadelphia should be able to continue operating according to its religious principles without getting its contract canceled by the city. That will be hailed as a victory, and it should.
But the freedom of those at a Catholic foster care agency to do their work as committed Catholics wouldn’t have been so precarious if not for a Supreme Court decision from more than 30 years ago—one that upended the status quo of religious freedom law in the United States.
There is lots of data that shows that Christians are becoming more marginal in the US. In the years ahead, it will be important to defend religious liberty legally. But strategically—and more importantly, morally—we need to do that by defending religious liberty for everyone.
That’s not what happened in Employment Division v. Smith, the critical 1990 ruling that set the precedent leading to challenges for Catholic Social Services in Philadelphia. In Smith, the Supreme Court made it much easier for the government to justify actions burdening religious free exercise. Officials were not obligated to accommodate religious practice. In fact, they could make it impossible for minority groups to be faithful to their beliefs and call it “just” and “fair.”
To understand this, let’s go back to 1963. A Seventh-day Adventist named Adell Sherbert was denied unemployment benefits after refusing to accept job offers that would have required her to work Saturday, her tradition’s required day of rest. The Supreme ruled that she should get benefits, and not getting them was an infringement of her religious rights.
The court explained that the government would not always be able to accommodate every minority belief, but it shouldn’t be allowed to make it harder for someone to practice their faith unless there was a really good reason. The key phrase here was “compelling interest.” Further, the court said that the government had to find the “least restrictive means” to accomplish the legitimate goal. That means government must have to try, at least, to accommodate religious practices. The starting place, so to speak, would be to see if you could make it work.
Nearly 30 years later, the court heard another case involving a member of a religious minority who was denied unemployment. This time, it was a member of the Native American Church named Al Smith, who was fired following a positive test for peyote, a hallucinogenic drug central to his church’s religious practice.
According to one attorney I spoke with years ago, advocates for religious liberty were confident the court would use Sherbert’s compelling interest framework and rule for Smith; there was little activity among Christians defending his legal claim. But it’s also possible that Christians weren’t especially interested in rushing to the defense of drug use, or allying with religious practices situated well outside the cultural mainstream.
And then the decision was announced: Antonin Scalia, a stalwart, Reagan-appointed conservative, wrote an opinion shredding the court’s precedent in Sherbert. He declared that so long as a law is neutral and “generally applicable,” states are not required to grant exemptions for religious convictions. That kind of assumption of accommodation, Scalia memorably wrote, would permit a man “to become a law unto himself.” He said that, “To adopt a true ‘compelling interest’ requirement for laws that affect religious practice would lead towards anarchy.”