In its decision last week in Fulton v. City of Philadelphia, the U.S. Supreme Court held that the Philadelphia violated a Catholic foster care agency’s First Amendment rights by trying to force the agency, in violation of its religious beliefs, to certify same-sex couples to be foster parents.
Many religious liberty advocates had hoped the court in Fulton would overturn a 1990 case that has posed significant hurdles for religious Americans, especially religious minorities, seeking accommodations. While the Fulton decision did not overturn that case, it did offer two promising developments for the protection of minority rights.
In Fulton, Philadelphia demanded that Catholic Social Services certify and endorse same-sex couples as foster parents if it wished to continue to participate in the foster care system, as it has for more than a century.
CSS refused, saying that certifying same-sex couples would violate the agency’s sincerely held religious beliefs that marriage is a bond between one man and one woman. In response, Philadelphia stopped sending foster care placement requests to CSS, prompting the lawsuit.
In its lawsuit, CSS argued that Philadelphia’s actions violated the religious freedom protections under the First Amendment. Specifically, CSS asked the court to revisit the standard created in the 1990 case, Employment Division v. Smith, and either overrule it or strictly limit it.
In Smith, the court ruled against two members of the Native American Church, Alfred Smith and Galen Black, who ingested peyote during their religious rituals. Peyote was an illegal substance under Oregon law.
With Fulton, the Supreme Court rejected the argument that anti-discrimination laws are so compelling that they can “brook no departures.” (Photo: J. Scott Applewhite, AP)
Smith and Black were fired from their positions as counselors at a drug rehabilitation center and were barred from receiving unemployment benefits because of their workplace “misconduct.”
Previous ruling raised civil liberty concerns
The court said that the First Amendment’s religious freedom protections did not immunize Smith and Black from the consequences of criminal law. So long as a law applied to everyone (or is, in the court’s words, “neutral” and “generally applicable”), it is permitted.
The Smith decision prompted outcry from civil liberties groups and religious advocates because the broad discretion it gave the government meant that few religious claimants would win, especially minority religious groups that have little political or social capital.
Many religious liberty advocates had hoped the court in Fulton would overturn Smith, particularly because the court had indicated its potential willingness to do so.
In 2019, four justices wrote that they would be open to revisiting Smith given how drastically it had diminished constitutional protections for religious Americans. And in Fulton, three justices filed a concurring opinion saying they would have overturned Smith. But the majority declined to do so, stating that it was unnecessary because CSS wins even under Smith’s restrictive rule.
While the outcome is disappointing because it does not protect religious minorities as powerfully as reversing Smith would have, the court’s Fulton analysis did enhance that protection in two important ways. The court ruled that the law at issue was not generally applicable (and thus outside Smith’s reach) and found that the city did not have a compelling interest in enforcing the law against the agency.
Smith insulates only those laws that do not contain exceptions for conduct favored by the state.
In the past, the court has held that if the government granted exemptions for secular conduct it had to grant exemptions for comparable religious conduct; the government could not favor secular exemptions over religious ones.
In Fulton, the court extended that rule by and said that if a law simply gives the government discretion to grant accommodations, then the law is by definition not generally applicable.
Government must show compelling interest
This is particularly important to religious minorities because the government agents tasked with administering such discretionary accommodations may not understand or properly value the concerns of religious minorities. This ruling ensures that adherents to minority faiths can come into court and argue that government bureaucrats undervalued their religious objections.
Once a religious adherent has his day in court, the government can still win if it can prove that burdening the adherent’s faith is necessary to further a compelling state interest.
If this test were understood in an unduly broad manner, it could doom most requests for religious accommodation. After all, if the government’s interest were defined broadly enough, most laws could be said to further a compelling government interest.
Before Fulton, the court had established that the government has to demonstrate a compelling interest as applied to a specific religious objector, instead of pointing to vague aspirational interests such as “public health” or “education” as reasons to deny narrow personal religious accommodations.
The state had to prove that granting accommodations to an individual or a small group of religious objectors would threaten those interests.
While this is established law, until the Fulton ruling, there was still some uncertainty about whether the government could argue that certain types of laws, such as anti-discrimination laws, were so important that every single application of those laws was compelling.
With Fulton, the court rejected the argument that anti-discrimination laws are so compelling that they can “brook no departures.”
That decision is important to minority groups. Take for example the case Mirsky v. Gymies currently pending in New York trial court. The plaintiff is claiming that a gym run by an Orthodox Jewish woman violates New York State’s Human Rights Law by conducting single-sex martial arts classes.
Many people of good will can concede that New York has an important interest in combating discrimination on the basis of sex.
But those same people might also recognize that the government’s interest is less compelling when it comes to shutting down a small gym that serves Orthodox Jewish children who would not be able to attend classes where members of the opposite-sexes touch one another.
Under the Fulton decision, in the Mirsky case, the court should look to see whether the state had a compelling interest in applying its law to one specific Jewish-owned gym rather than looking to see whether it had an interest in combating sex-based discrimination statewide.
Given that the court declined to overturn Smith, the struggle to fully protect religious minorities will continue. In fact, there are petitions currently pending before the Supreme Court requesting that it overturn Smith next year.
As Justice Neil Gorsuch stated in his concurrence, “those cases will keep coming until” the Supreme Court musters the fortitude” to overturn Smith.
As representatives of religious minority communities, we hope the Supreme Court finds that courage soon.
Asma T. Uddin is a lawyer and the author of “The Politics of Vulnerability: How to Heal Muslim-Christian Relations in a Post-Christian America.” Howard Slugh is a lawyer and co-founder of the Jewish Coalition for Religious Liberty.
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