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This article is part of our “Notorious ACB: Law, Religion, and Justice Barrett’s Ascent to the Court” series.
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When Amy Coney Barrett took the bench November 4 for her third day of oral arguments as an associate justice of the U.S. Supreme Court, the questions she asked seemed to reveal both her loyalty to her late mentor, Justice Antonin Scalia, and her ongoing interest in abortion rights.

The case at hand, Fulton v. City of Philadelphia, concerned whether Catholic Social Services (CSS) and other religious foster care agencies must comply with a city antidiscrimination ordinance that requires them, when they certify households as suitable for foster placements, to treat same-sex and opposite-sex couples equally. Foster parents and CSS sought an exemption from Philadelphia’s ordinance on free exercise grounds, while the city argued that CSS, like all of its contractors, is subject to an antidiscrimination law that is religiously neutral and generally applicable.

Fulton represents the latest in a series of cases in which U.S. courts have confronted what many perceive to be the collision of religious liberty and LGBTQ+ rights. After effectively ducking the hardest questions in Masterpiece Cakeshop, the 2018 case in which the Supreme Court held that civil rights commissioners who found a Colorado baker to have violated a similar law had demonstrated anti-religious animus, by granting certiorari in Fulton the Court appeared willing to engage the core conflict directly.

Fulton represents the latest in a series of cases in which U.S. courts have confronted what many perceive to be the collision of religious liberty and LGBTQ+ rights.

But the Court that granted certiorari in Fulton and the Court that actually heard the case were markedly different, with the passing of Justice Ruth Bader Ginsburg and the hastily arranged nomination and confirmation of her successor, Justice Barrett.

Affirming Justice Scalia’s Legacy

At the ill-fated Rose Garden event where President Trump introduced her as his nominee, then-Judge Barrett paid tribute to Justice Scalia, for whom she had clerked. Saying that Justice Scalia had had an “incalculable influence” on her, she declared: “[T]he lessons I learned still resonate. His judicial philosophy is mine too.”

Justice Scalia was likely on Justice Barrett’s mind as she prepared for oral arguments in Fulton. When the justices granted certiorari, they accepted one of the questions that both parties presented: “Whether Employment Division v. Smith should be revisited?” Justice Scalia wrote the Court’s decision in Smith, a 1990 case that denied an exemption from Oregon’s drug laws for a member of the Native American Church who used peyote in a religious ritual and was denied unemployment benefits after being fired from his position as a drug rehabilitation counselor. Smith established the rule that the Constitution permits laws to burden religious practice incidentally, so long as the laws concerned are neutral and generally applicable — that is, they do not target religious practices and apply without exception.

The Smith decision ignited a bipartisan firestorm and led to the enactment of the federal and state Religious Freedom Restoration Acts (RFRAs). As Carolyn N. Long has documented, critics charged Justice Scalia with “judicial activism, a term usually reserved for liberal members of the Court.” Smith’s detractors, including conservative advocates who usually lionized Justice Scalia, labeled the decision “troubling,” “strained,” “untrustworthy,” “internally inconsistent,” and “bizarre.”

Although Justice Barrett stressed during her confirmation hearings that “If I’m confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett,” it is perhaps unsurprising that her questions in Fulton reflected skepticism about overturning one of the more controversial elements of her mentor’s legacy. She asked Lori Windham, the attorney for CSS:

[Y]ou argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if you’re right about that, why should we even entertain the question whether to overrule Smith?

Ms. Windham insisted that post-Smith cases “make clear that Smith is a bad fit”, that it “has caused negative results”, and that “its prediction has actually not borne out, that it is possible for the government to accommodate and partner with religious organizations to do religious exercise.” She suggested that the Court replace Smith with a standard similar to that of the federal and state RFRAs: government can burden religious exercise only for a compelling interest, such as ending racism, and only through the narrowest means. (Whether the Court should treat sexual orientation discrimination analogously to race discrimination was a theme that ran throughout the arguments in Fulton and deserves a column of its own.)

Hashim Mooppan argued for the Solicitor General, whose office supported CSS but did not argue that Smith be overruled. In her questions to Mr. Mooppan, Justice Barrett fleshed out another element of Justice Scalia’s analysis. As we have seen, Smith permits laws that burden religious exercise if they are generally applicable — in other words, if they do not permit the government to grant case-by-case exemptions. In Fulton, one issue was whether foster care practices permitted by Philadelphia, such as taking race and disability into account in matching children with parents, meant that the city’s antidiscrimination laws were not generally applicable. In this context, Justice Barrett asked: “[H]ow do we go about identifying what the . . . relevant factor is in deciding whether a law is generally applicable?” Mr. Mooppan responded that sexual orientation, race, and disability are “comparable traits” and insisted that, under Smith, the city should not be able to pick and choose the bases on which it grants exemptions. 

These colloquies between Justice Barrett and Ms. Windham and Mr. Mooppan seem to reveal that Justice Barrett has little appetite for overturning Smith. To what extent this is because of her now-well-publicized views on the doctrine of stare decisis, because of her personal agreement with this particular precedent, or because of her enduring regard for her late mentor, of course, only Justice Barrett knows.

Abortion Makes an Appearance

More surprising than her questions concerning Smith, however, was a hypothetical that Justice Barrett posed to Neal Kumar Katyal, who argued the case for Philadelphia. As background, it is important to remember that after President Trump nominated her first for the Seventh Circuit and then for the Supreme Court, Justice Barrett’s Catholic faith and, specifically, her views on abortion provoked scrutiny and controversy. 
To be clear, Fulton is not a case about abortion; nor does it implicate substantive due process, in which the Court’s abortion cases have grounded a woman’s right to choose. Consider, then, the scenario Justice Barrett put to Mr. Katyal:

[L]et’s imagine that the state takes over all hospitals and says from now on, you know, we are going to be responsible for hospitals, but we will contract with private entities to actually run them. And so there’s a Catholic hospital and gets a contract with the City to run it. In fact, it’s a—a Catholic hospital that’s in existence before the state adopts this policy. And . . . the contract the state gives everyone is that you can get some exceptions for some medical procedures, but every hospital has to perform abortions. In that context, do we analyze this as a licensing question, or, given that the Catholic hospital can’t even enter the business without this contract, do you still say that this was the provision of a contractual service?

It is remarkable that of all the hypothetical situations one might construct to illustrate the possibility that a city’s policies could mandate that a faith-based contractor act against its beliefs, Justice Barrett chose a scenario involving abortion. In response, Mr. Katyal rightly sought to distinguish the hypothetical from the case he was arguing: in Fulton, the city had not monopolized the provision of foster care services, which he said would “raise any number of constitutional problems.”

Chief Justice John Roberts cut Mr. Katyal off before he could respond further to Justice Barrett’s hypothetical, but the question remains: why did she pose it? A scenario about abortion was not necessary to demarcate the constitutional rights of religious organizations that contract with the government. It introduced into an already difficult case one of the most incendiary issues in American public life and law. For Justice Barrett’s critics, it could substantiate their fears that her jurisprudence will be driven by her personal pro-life views; for her supporters, it could provide confirmation that she was the right choice for the bench.

Most of all, bringing up abortion was a striking — one might even say gutsy — move for a justice nine days into a tenure that will likely stretch for decades. Only time will tell how Justice Barrett will end up balancing the many influences she has brought to the bench, including the mentors who formed her and the faith she proudly embraces. ♦

Patrick Hornbeck is professor of theology at Fordham University, where he is also a J.D. student in the School of Law. A historian of Christianity who presently works at the intersection of U.S. religion and law, Hornbeck is author or editor of eight scholarly books, most recently Remembering Wolsey: A History of Commemorations and Representations (Fordham University Press, 2019).

Recommended Citation:

Hornbeck, Patrick. “Questioning Justice Barrett’s Questions in Fulton v. City of Philadelphia.” Canopy Forum, December 20, 2020.