Thursday, June 17, 2021
As the world waited for the Supreme Court’s ruling in Fulton v. City of Philadelphia, the stage was set for another headline-grabbing battle in our never-ending culture wars: the religious liberty of a Catholic foster care agency versus a municipal government committed to ending discrimination against same-sex couples. This morning, as advocates on both sides were ready to crank up the outrage-fueled fundraising machines, the Court issued its ruling in favor of the Catholic agency. And remarkably, it was unanimous, demonstrating once again that the rule of law does not stick to our increasingly polarized political scripts. Throughout this era of tumult and tribalism, our judiciary reminds us that the law is not just a set of political preferences dressed up with fancy words. Principles and precedent continue to matter.
So how did this case end up as a unanimous ruling? The dispute arose from Philadelphia’s decision not to renew its contract with Catholic Social Services (CSS) to place children with foster parents unless CSS agreed to include same-sex couples. The City argued that the refusal to include same-sex couples violated a non-discrimination provision in the agency’s contract with the City, as well as the non-discrimination requirements of a city ordinance.
In an opinion joined by all eight of his colleagues, Chief Justice Roberts observed that CSS “does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children,” and “[n]o same-sex couple has ever sought certification from CSS.” If a same-sex couple did seek to be certified, “CSS would direct the couple to one of more than 20 other agencies in the City, all of which currently certify same-sex couples.” (In other words, there is no shortage of opportunities in Philadelphia for same-sex couples to serve as foster parents.)
The Court held that the City’s refusal to renew CSS’s foster care contract violated the First Amendment’s Free Exercise Clause, recognizing at the outset that “the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”
That wasn’t the end of the analysis, though, because of a 1990 Supreme Court ruling that loomed over this case: Employment Division v. Smith. In Smith, the Court held that neutral and generally applicable laws do not violate the Free Exercise Clause even if they negatively impact religious practices. In Fulton, the City argued that its prohibition on sexual orientation discrimination was both neutral and generally applicable, and as such, CSS’s Free Exercise claim must fail.
The Court disagreed because the City’s non-discrimination requirement permitted a party to seek an exemption, and “A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.”
Once a law that burdens religious exercise is deemed not generally applicable, it falls outside the scope of Smith and is thus subject to strict scrutiny. This means that the law can only survive if it advances government interests of the highest order and is narrowly tailored to achieve those interests. Put more simply, “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”
The Court acknowledged that important interests are at stake in the non-discrimination requirement, but found that the City failed to show how granting CSS an exemption would jeopardize those interests: “If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.”
So every Justice agreed that CSS should prevail. But three Justices – Alito, Thomas, and Gorsuch – were ready to go further and overturn Smith, pointing out in a concurring opinion that the rule permitting “neutral and generally applicable” laws to withstand constitutional scrutiny, no matter their impact on religious exercise, is deeply problematic. For example, under Smith, the Volstead Act implementing Prohibition would have been constitutional even if it contained no exception for the sacramental wine necessary for Catholic masses. Or a ban on infant circumcision would be permissible, even if it applied to prohibit important Jewish and Muslim practices.
Because the Court avoided Smith by focusing on the possibility of an exemption in Philadelphia’s non-discrimination requirement, the concurrence warned that today’s decision “might as well be written on the dissolving papers sold in magic shops” because, “if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.”
So even in a unanimous ruling, important disagreements lurk. But even those disagreements don’t align easily with our political tribalism. The author of Smith against whom conservative stalwarts Alito, Thomas, and Gorsuch were railing? Conservative judicial hero Antonin Scalia. The rule of law does not lend itself to simplistic predictions based on which President appointed which judge. (In today’s other noteworthy ruling, Trump appointees Barrett and Kavanaugh joined five of their colleagues in upholding Obamacare against a challenge brought by Republican-led states.)
The sorting that has occurred between American conservatives and liberals maintains an ideological core, but it has morphed into something broader and deeper than ideology. In his book "Why We’re Polarized," Ezra Klein points out that the two major political parties today “are sharply split across racial, religious, geographic, cultural, and psychological lines,” and that these identities “are fusing together, stacking atop one another.” Further, since “these mega-identities stretch across so many aspects of our society, they are constantly being activated, and that means they are constantly being reinforced.” In other words, a conflict between religious liberty and LGBT rights aligns with the more fundamental conflict between our stacked social identities. We don’t need to choose a side; we already know which side we’re on based on where we live, what cable news we watch, what car or truck we drive, where (and if) we go to church, even where we shop.
The rule of law reminds us that it should not and need not be that simple. I’m confident that Justice Sotomayor and Justice Thomas, for example, do not run in the same political circles or derive their identities or sense of belonging from the same sources. And yet they can step back from the noise, examine the facts of a situation, apply sound principles not of their own creation, and agree on an outcome. Not every case will be unanimous, and a 5-4 ruling may emerge later this month. But members of the Supreme Court have not given up hope that they can still reason together to resolve deeply contested issues. And if they can do that under the white-hot national spotlight, so can the rest of us.