“General Applicability: An Ambiguous Concept after Fulton” by Patrick Hornbeck

Photo by Rachel Moore on Unsplash.

What does it mean to call a law generally applicable? The question is timely because of a confluence between the U.S. Supreme Court’s decision this summer in Fulton v. City of Philadelphia and ongoing litigation over COVID-19 prevention measures, especially vaccination mandates. In Fulton, the Court gestured toward two definitions of general applicability. The majority resolved the case using one definition, but left the second hanging. Already, anti-vaccination advocates have seized on the Court’s ambiguity.

Levels of General Applicability

Let us start with first principles. In the most abstract sense, it is possible to say that every law is generally applicable. Patently, there are not different editions of the U.S. Code that apply to different groups of people who happen to be living at the same time. But typically, when we say a law is generally applicable, we mean that it confers the same benefits or imposes the same obligations on everyone. A law that is not generally applicable, in contrast, exempts some people or entities from its requirements, or it makes benefits available to some but not others.

Consider the Selective Service Act. In its present form, it imposes a requirement on all U.S. citizens and immigrants 18 to 25 years of age and designated male at the time of birth. That requirement is to register with Selective Service to facilitate conscription in wartime, should it become necessary. The Act categorically exempts several groups from the registration requirement; those already serving in the active duty military, for instance, have no obligation to register. Others may be eligible for case-by-case exemptions: those conscientiously opposed to war on the basis of “religious training and belief” may apply for an exemption from certain forms of military service.

So there are three analytically distinct ways in which the Selective Service Act is not generally applicable. Some people are not subject to it at all, because they are not within the relevant age range or were not designated male at birth. Others fall within its scope but enjoy a categorical exemption on the basis of some objective criterion. A third group may petition for an individualized exemption.

These distinctions are worth exploring in light of the Court’s reasoning in Fulton, where the justices decided that Philadelphia violated the free exercise rights of Catholic Social Services (CSS) when the city cancelled its contract with CSS because the agency refused, on religious grounds, to consider certifying same-sex couples as foster parents. While they all concurred in the outcome, the justices disagreed on the applicable legal standard. For a six-justice majority, the city’s actions were subject to strict scrutiny because a key provision of the contract at issue was not generally applicable.

Fulton and the Fate of Smith

When the Court granted certiorari in Fulton, it agreed to consider whether to “revisit[]” Employment Division v. Smith, the 1990 precedent governing when the First Amendment requires the government to exempt religious believers from laws and regulations burdening the practice of their faith. Smith established the rule that where government action is “neutral” and “generally applicable,” there is no constitutional right to a religious exemption except in relatively rare cases where some other constitutional right is implicated as well (the so-called “hybrid rights” scenario).

Smith remains an outlier among the decisions authored by the late Justice Antonin Scalia. The backlash against it was both fierce and speedy: within three years, Congress enacted the Religious Freedom Restoration Act (RFRA), which effectively directs courts to employ strict scrutiny in reviewing government actions that burden religious practice. In our era of political and religious polarization, it is striking to recall that RFRA passed Congress with overwhelming bipartisan majorities and prominent co-sponsors from both parties. The Court later cabined RFRA to federal action, but 21 states adopted RFRA-like statutes of their own. 

A law that is not generally applicable exempts some people or entities from its requirements, or makes benefits available to some but not others.

Although the Court signaled its willingness to consider Smith’s fate, in Fulton the majority declined to decide the question. In his opinion for the Court, Chief Justice Roberts held that Smith simply did not apply to the dispute in Fulton because the contract for the provision of foster-care services included a provision that enabled Philadelphia to grant case-by-case exemptions from its nondiscrimination policy. Because the policy was not generally applicable, the city’s refusal to grant CSS an exemption was subject to strict scrutiny rather than Smith’s more lenient standard.

Justices Alito, Gorsuch, and Thomas concurred only in the judgment, arguing that Smith had been wrongly decided and that the Court achieved nothing by deferring its fate. Justices Barrett and Kavanaugh wrote separately to say they found “the textual and structural arguments against Smith” to be “more compelling” than otherwise, but they, joined by Justice Breyer, opined that the time had not come to overrule Smith. As one scholar has emphasized, the three justices observed there are too many outstanding questions about the proper rule. “Should entities like Catholic Social Services — which is an arm of the Catholic Church — be treated differently than individuals? . . . Should there be a distinction between indirect and direct burdens on religious exercise? . . . What forms of scrutiny should apply? . . . And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way?”

Fulton’s Two Concepts of General Applicability

With a majority of today’s justices stating or implying that Smith is not long for the law books, the future of free exercise jurisprudence remains uncertain. But as Smith’s fate hangs in the balance, the Court’s opinion in Fulton and the way it is already being deployed in litigation over COVID-19 prompts this question: In determining whether the Free Exercise Clause requires that religious believers be exempt from a particular law, should it matter in what sense that law is generally applicable?

The Fulton majority discussed two ways in which a law might not be generally applicable. The first is when the law gives the government discretion to grant exemptions based on individualized circumstances. Thinking again about the Selective Service Act, we saw that it empowers local draft boards to determine whether, “by reason of religious training and belief,” a particular man “is conscientiously opposed to participation in war in any form.” (The Act requires that the man’s objection be religious, not a result of “essentially political, sociological, or philosophical views, or a merely personal moral code.”)

To illustrate this way of thinking about general applicability, the Fulton majority turned to Sherbert v. Verner, a 1963 case involving a Seventh-Day Adventist who was denied unemployment benefits after being fired for refusing to work on Saturdays. In Sherbert, the Court held that South Carolina’s unemployment commission violated the plaintiff’s free exercise rights by not exercising its discretion, under state law, to treat her beliefs as “good cause” for declining to accept available work. As the Court put it in Smith, the statute in Sherbert was not generally applicable because “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.”

The Fulton majority also discussed a second concept of general applicability. In the paragraph following its analysis of Sherbert, the Court observed that a law might not be generally applicable when it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” Here, the issue is not the reasons that the government should consider in deciding whether to grant individualized exemptions. Instead, the question is whether a statute facially prohibits conduct when undertaken for religious reasons while permitting that same conduct if undertaken for non-religious reasons. The Court cited Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, where it struck down ordinances that targeted practitioners of the Santería faith. The ordinances banned animal sacrifice, purportedly on public health grounds, but did not regulate secular practices that posed similar sanitary hazards, such as “hunters’ disposal of their kills or improper garbage disposal by restaurants.” According to the Fulton majority, “this and other forms of underinclusiveness meant that the ordinances were not generally applicable.”

There is no question that Lukumi controls one aspect of the Court’s decision in Fulton — after all, it was Lukumi where the Court confirmed that laws that are not neutral or generally applicable are subject to strict scrutiny. But the Court’s discussion of Lukumi’s concept of general applicability seems inapposite in Fulton because the government action at issue — Philadelphia’s contract with agencies that provide foster-care services — was far more analogous to that in Sherbert. The key provision of the contract specified that no foster-care provider may reject a “child or family” on grounds including sexual orientation “unless an exception is granted by the Commissioner [of the Department of Human Services] or the Commissioner’s designee, in his/her sole discretion.” This discretion, like the “good cause” provision in Sherbert, is necessarily exercised on an individual basis. Philadelphia’s contract did not distinguish between religious and nonreligious refusals to abide by nondiscrimination principles. And while there was some evidence that some Philadelphia officials may have been hostile to CSS because of its interpretation of Catholic sexual ethics, the “sole discretion” provision formed part of the city’s boilerplate foster-care contract. It was not, as in Lukumi, a facially neutral rule that the city implemented with the intent of burdening CSS and like-minded agencies.

Fulton’s Reception and COVID-19 Prevention

This analysis suggests that the Fulton majority wrote more than was necessary to decide the case. Because the contract allowed for case-by-case exemptions, under Smith and Lukumi the city’s decision to deny an exemption to CSS must satisfy strict scrutiny, and the Court determined it did not.

The Court’s dicta concerning the ways a law might fail to be generally applicable has more than academic significance in light of the ongoing battle against COVID-19. The Court’s approach to free exercise has had substantial implications for the public health response to the pandemic. As I outlined in a previous essay, had the Court overruled Smith and constitutionalized something like RFRA’s strict scrutiny standard, public health officials would have found it significantly more difficult to require religious institutions and believers to comply with preventive measures.

Some state agencies have sought to pre-empt such difficulties by deliberately building religious exemptions into their mandates regarding vaccinations. This academic year, Indiana University required all its students to be vaccinated against COVID-19 “unless they are exempt for religious or medical reasons.” A unanimous panel of the Seventh Circuit, composed of judges appointed by Republican presidents, easily upheld the university’s mandate, reasoning in part that the religious exemption avoided “[t]he problems that may arise when a state refuses to make accommodations.”

The statute makes Connecticut one of six states not to grant ideologically oriented exemptions from school immunization requirements.

But what about situations where the government decides not to grant religious exemptions? As I write, one such case is making its way through the courts. Amidst the pandemic, the state of Connecticut amended its statute governing the immunization of schoolchildren against a wide range of diseases (not including COVID-19). Whereas the law had formerly allowed students or their parents or guardians to obtain an exemption by submitting a statement that immunization would violate their religious beliefs, the revised statute phased out the religious exemption. Children who previously received exemptions may continue attending school without being immunized, but no new exemptions are allowed. The statute makes Connecticut one of only six states not to grant ideologically oriented exemptions from school immunization requirements. Twenty-nine states offer such exemptions only for religious believers, while another fifteen do so for both religious and nonreligious belief systems. Religiously observant Muslim, Catholic, and Orthodox Christian families sued Connecticut over the new law, arguing that it violates their free exercise rights by not providing a religious exemption.

One of the most important questions in the Connecticut litigation is whether the state’s new vaccination requirement is generally applicable. The law does not give officials discretion to grant the case-by-case exemptions that were available in Sherbert and Fulton. The plaintiffs are not arguing that Connecticut adopted the requirement out of hostility to religious practitioners, as was the case in Lukumi. But the plaintiffs are contending that the requirement is not generally applicable because while Connecticut is phasing out the religious exemption, it is retaining a separate exemption for children whose physicians advise that vaccination would be “medically contraindicated.” In their papers, the plaintiffs cite Fulton’s discussion of Lukumi in support of the proposition that granting a medical but not a religious exemption “violates the neutrality and general applicability requirements of the Free Exercise Clause.” The state’s response is two-fold: first, the statute bars all ideologically oriented exemptions, whether religious or nonreligious; and second, because the statute’s purpose is to promote student health, requiring children with special medical needs to be vaccinated would contravene the statute’s purpose in a way that requiring children with distinctive religious commitments to be vaccinated would not.

The Connecticut litigation is in its early stages, with the district court presently weighing the defendants’ motions to dismiss. As with so many of the free exercise lawsuits that have emerged since the start of the pandemic, the court will need to decide what kind of comparative analysis the Constitution requires. Is it more relevant that the Connecticut statute treat all ideological objections identically, or that it treat medical and ideological issues differently?

Many scholars contend that under international charters like the Covenant on Civil and Political Rights, governments should make exemptions equally available to nonreligious and religious objectors. The Court’s reasoning in Lukumi seems related: if the government is pursuing a public policy objective and needs to burden religious practices that interfere with that objective, it must burden analogous secular practices, too. But is an exemption for physical, medical necessity a secular practice analogous to an exemption for religious or ideological necessity? Many would say no, but those who sincerely believe that accepting a vaccination could save their bodies but imperil their souls might disagree.

It is not clear that the Fulton Court’s discussion of general applicability offers the sort of guidance district courts like the one in Connecticut need. If it is inevitable that the majority of justices who believe Smith to have been wrongly decided will overhaul U.S. free exercise jurisprudence in the foreseeable future, among the questions they will need to confront is whether constitutionally it matters that a law is or isn’t generally applicable — and what, after all, general applicability really means. ♦

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Recommended Citation

Hornbeck, Patrick. “General Applicability: An Ambiguous Concept after Fulton.” Canopy Forum, September 16, 2021. https://canopyforum.org/2021/09/16/general-applicability-an-ambiguous-concept-after-fulton/