The U.S. Supreme Court today in Fulton v. City of Philadelphia, (Sup. Ct., June 17, 2021), held unanimously that Philadelphia has violated the free exercise rights of Catholic Social Services by refusing to contract with CSS to provide foster care services unless it agrees to certify same-sex couples as foster parents. Chief Justice Roberts wrote the opinion of the court which was joined by five other justices, avoiding the question of whether to overrule Employment Division v. Smith. The Court said in part:
Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.... CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so.... But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable....
Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature....
[S]ection 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS.... But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.” Smith, 494 U. S., at 884....
The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.
Once properly narrowed, the City’s asserted interests are insufficient.
Justice Barrett filed a concurring opinion, joined by Justice Kavanaugh and (except for one paragraph) by Justice Breyer, saying in part:
In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.
Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.
Justice Alito, joined by Justices Thomas and Gorsuch filed a 77-page opinion concurring in the judgment, arguing that the Smith case should be overruled. Justice Gorsuch, joined by Justices Thomas and Alito also filed an opinion concurring in the judgment and contending that Smith should be overruled.
CNBC reports on the decision.
