The Supreme Court ruled 9-0 on Thursday that Philadelphia can’t tell a Catholic foster-care agency to violate its faith as a condition of its city contract—a victory for religious liberty. Yet as Justice Samuel Alito writes in a 77-page cri de coeur concurrence, the faithful are owed more under the First Amendment.
The facts in Fulton v. Philadelphia show who is the cultural and legal aggressor. The Catholic Church has been caring for Philadelphia’s orphans since at least 1798, long before foster care was a government service. Catholic Social Services (CSS) has operated under a city contract for 50 years. No gay couple has ever asked CSS for certification as a foster family. Twenty-seven other groups meet that need.
This was the state of play until 2018, when a newspaper quoted the archdiocese’s spokesman as saying that CSS couldn’t certify a hypothetical gay couple seeking its services. A city commissioner lectured CSS that “things have changed since 100 years ago,” and “it would be great if we followed the teachings of Pope Francis. ” The city then refused to renew CSS’s contract. Foster parents sued, including Sharonell Fulton, a black foster mom who has cared for 40 children over 25 years.
The good news is that no Justice took Philadelphia’s side. But it’s hard not to read the Court’s narrow opinion, written by Chief Justice John Roberts, as another example of his mode of seeking consensus by watering down principle. He wants to win over liberal Justices and he is reluctant to take the heat from overturning even dubious precedents. But the cost is less protection for religious belief that is increasingly under siege by the state.
In this case the key precedent is Employment Division v. Smith (1990), which said the First Amendment isn’t necessarily offended when a “generally applicable” law places “incidental” burdens on religion. In getting six votes, the Chief’s approach is to say that Philly’s nondiscrimination demand didn’t count as “generally applicable,” since the city’s foster contracts reserved the right to make exceptions.
“The City offers no compelling reason,” the Chief Justice writes, “why it has a particular interest in denying an exception to CSS while making them available to others.”
The optimistic view is that this makes Smith more hospitable to the faithful, in an age of increasingly intolerant secularism. The pessimistic view is that the majority used case-specific facts to dodge the real question, leaving the fate of Smith for another day, after heaven knows how many more lawsuits. When Philly issues its next foster contracts, Justice Alito asks, what if it simply deletes the exemption clause? “Voilà,” he writes, “today’s decision will vanish—and the parties will be back where they started.”
Justice Alito’s concurring opinion, joined by Justices Neil Gorsuch and Clarence Thomas, is a tour de force of originalist interpretation of the Free Exercise Clause. He argues persuasively that Smith is contrary to the meaning of the First Amendment, citing colonial examples, such as Georgia’s 1777 shield for religious exercise, “provided it be not repugnant to the peace and safety of the State.” Quakers were granted exemptions from taking oaths. Mennonites were freed from militia service.
A strict prohibition on wine might satisfy Smith, Justice Alito argues, but it would prevent the celebration of Catholic Mass. If that sounds too far-fetched, imagine laws prohibiting infant circumcision (proposed in San Francisco in 2010) or banning the slaughter of animals without first rendering them unconscious (enacted in parts of Europe), “even though it would outlaw kosher and halal slaughter.”
The Chief Justice’s opinion is disappointing, though by now not surprising. More notable is that he was joined by the two newest conservatives, Justices Amy Coney Barrett and Brett Kavanaugh. Had they joined Justice Alito, the Court would have had a 5-4 majority for a stronger statement protecting religion.
Justice Barrett also writes a concurrence, joined by Justice Kavanaugh, that was skeptical of Smith, while questioning what would replace it. The answer, in the concurrences of Justices Alito and Neil Gorsuch, is that the Court’s pre-Smith precedents were more than adequate. “The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” writes Justice Alito.
He’s right. The Little Sisters of the Poor, who object to ObamaCare’s contraception rule, have been to the Supreme Court twice, and President Biden has pledged to keep harassing the nuns. Unlike the liberals of 30 or even 10 years ago, today’s secular progressives are openly hostile to religious liberty, which needs a Supreme Court willing to defend it.
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