Religious Liberty and Social Equality in the Aftermath of Fulton v. Philadelphia
Religion clause jurisprudence is one of the more convoluted areas of constitutional law. The Supreme Court has articulated at least six different standards in recent years for determining whether a state has violated the First Amendment’s prohibition against “establishment of religion.”
The Court’s approach to free exercise cases is not much clearer and no less contested. Recent years have witnessed widespread discontent with the legal standard that governs free exercise claims as well as questions about whether the days are numbered for this standard that emerged in Employment Division v. Smith.
Adding to popular confusion is the fact that religious liberty claims are often based in other parts of the Constitution, such as expressive association and free speech; in federal statutes, such as the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA); and in state-based constitutional and statutory provisions.
Recent religious liberty cases have proved particularly dramatic, revealing deep and persistent tensions between religious liberty and other important rights and values. An ongoing, and largely unresolved, area of tension involves religious liberty and the social equality of LGBTQ+ populations. The Court has seemed to commit itself to a path of recognizing additional rights of LGBTQ+ populations while simultaneously shoring up religious liberty protections. While this might seem like a win-win in the abstract, the on-the-ground reality is more complicated. Decisions from the last decade have sown confusion and left jurisprudential gaps regarding how these values and rights interface.
How to reconcile, for example, the ongoing authority of Smith in free exercise cases – a standard that is not particularly hospitable to free exercise claims – with the Court’s recent decisions affirming religious liberty, including in free exercise contexts? In a series of narrow rulings, the Court has avoided providing clear guidance on a number of controversies that have pitted religious liberty and social equality against one another. As a result of narrow rulings in cases such as Christian Legal Society v. Martinez and Masterpiece Cake Shop v. Colorado, lower courts lack clear standards and guidance as they address questions such as: Should religious student organizations at public universities have the same access to student activity funds and use of the university’s facilities even when those organizations expect members to sign a statement of faith that prohibits same-sex activity? Under what, if any, circumstances can individuals or businesses be exempted for religious reasons from public accommodations laws that prohibit discrimination on LGBTQ+ status?
Fulton v. City of Philadelphia provided an opportunity for the Court to clarify the status of Smith and, in the process, signal how the Court will handle future cases involving religious liberty and social equality. In Fulton, Catholic Social Services (CSS), a longtime provider of foster care services, filed suit against the City of Philadelphia for removing CSS from the list of approved foster care agencies on the grounds that CSS would not abide by the City’s policy of non-discrimination against same-sex would-be foster parents. At issue in the case was not simply whether to uphold CSS’s free exercise claim but also what standard the Court would use. According to Smith, which was decided in 1990, burdens to religious free exercise resulting from facially neutral and generally applicable laws are presumptively valid unless those burdens are the result of government actions that specifically target religion, empower government officers with too much discretion in applying generally applicable laws, or reflect a so-called “hybrid rights” claim involving both religious free exercise and another constitutional right.
In Fulton, the Court ruled unanimously in favor of CSS. Chief Justice Roberts’s majority opinion declined, however, to reconsider the contested Smith standard on the grounds that “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.” The foster care policy was not generally applicable, according to Roberts, because one provision of the foster care contract provided for the possibility of an exemption – which had never been granted – to the general requirement that providers not discriminate on the basis of sexual orientation. In addition, the majority opinion concluded that the City’s Fair Practices Ordinance did not apply to CSS or to foster care services since certification as a foster parent is not a public accommodation.
Justices Barrett, Alito, and Gorsuch penned concurring opinions highlighting limitations of the majority opinion and, in various ways, calling on the Court to reconsider Smith. One of the not-so-subtle charges in the concurring opinions, Gorsuch’s in particular, is that the Roberts majority simply fails to address the issues before it. It seems, according to Gorsuch, that the majority’s “goal is to turn a big dispute of constitutional law into a small one” by focusing on a “minor premise” of municipal law. This “minor premise” is the applicability of the City’s public accommodation provision, the Fair Practices Ordinance (FPO), to foster care providers, a detail that the Court below did not address because the applicability of the FPO had been assumed by all parties since the district court’s ruling.
There are many good reasons for courts not to go looking for trouble in their opinions. The canon of constitutional avoidance cautions against ruling on constitutional matters when the case can be resolved on narrower grounds, thus helping courts avoid reaching beyond their constitutionally circumscribed roles, and the principle of stare decisis helps provide continuity and predictability in the law by prompting courts to look at past precedents for guidance. Courts are also understandably hesitant to countenance the possibility of moral tragedy in cases concerning constitutional rights. Inherent in the idea of a right is that it operates as a trump against lesser interests and claims. It is not generally helpful for a court of last resort to bemoan an abstract conflict between “liberty” and “equality” if the conflict can be boiled down to narrower, cognizable rights. If the Court is seen as too willful, political, abstract, or insufficiently solicitous of its own precedents, it risks losing the one thing it requires above all: legitimacy.
The Court has perhaps maintained its legitimacy for another day with its narrow ruling in Fulton that acknowledges precedent without exactly affirming or overturning it and with an opinion that will perhaps not make too many people too unhappy. Religious liberty advocates can celebrate, for now, a vindication of their claims. States and municipalities intent on protecting the rights of same-sex couples can take solace in the hope that minor administrative adjustments will presumably enable the enactment of policies very similar to those struck down in Fulton.
Zooming out from the narrowest conceptions of legitimacy, however, it is not clear the Court has succeeded in Fulton. While courts understandably have an interest in avoiding needless hand wringing and philosophizing, and should issue rulings that are limited to the facts presented, it is hard not to find the Court’s opinion in Fulton at least a bit obtuse. The Court can only dance around substantive constitutional quandaries for so long. At some point, the Court must provide workable guidance to lower courts, state actors, and citizens. As Gorsuch’s concurrence observed, “In the last nine months alone, this Court has had to intervene at least half a dozen times to clarify how Smith works…These cases will keep coming until the Court musters the fortitude to supply answer…[I]t should have done so today.”
Perhaps it is too much to ask for, but are we not owed more candor by the Court? Our constitution is not simply a mechanism for maintaining order but also a text that creates meaning and shapes our collective national identity. As the chief interpreter of our constitution, the Supreme Court has an outsized role in helping us all understand our values, history, and aspirations as a people.
Reading recent cases such as Masterpiece Cake Shop and Fulton calls to mind the words of the late Robert Cover who bemoaned the Court’s handling of another Supreme Court case nearly forty years ago that also pitted social equality against religious liberty. In Bob Jones v. U.S., the Court upheld the IRS’s determination to void a university’s tax exemption because of its practice of discriminating on the basis of race. According to Cover, the Court missed an important opportunity to articulate the values and principles that guided the Court’s ruling:
[T]he force of the Court’s interpretation…is very weak….The Court assumes a position that places nothing at risk and from which the Court makes no interpretive gesture at all, save the quintessential gesture to the jurisdictional cannons…The grand national travail against discrimination is given no normative status in the Court’s opinion, and….[affected religious communities] are rightly left to question the scope of the Court’s decision.
Social equality and religious liberty are worthy, legitimate goals that flow naturally from our nation’s foundational text. While the justices are not philosophers, nor should they be, the Court does itself no favors by consistently failing to address substantive constitutional disputes regarding these values and associated rights. The Supreme Court has an opportunity and obligation not only to resolve concrete disputes but also to articulate the values that inform their decisions. ♦
Kenneth Townsend is Director of Leadership and Character in the Professional Schools at Wake Forest University and Scholar-in-Residence in the School of Law. He teaches courses related to legal ethics and leadership in the law, and his research focuses on leadership in the legal profession, the ethical formation of professionals, and religion and the U.S. Constitution.
Townsend, Kenneth. “Religious Liberty and Social Equality in the Aftermath of Fulton v. Philadelphia.” Canopy Forum, September 29, 2021. https://canopyforum.org/2021/09/29/religious-liberty-and-social-equality-in-the-aftermath-of-fulton-v-philadelphia.