Over the past few decades, particularly this one, the U.S. Supreme Court has increasingly lent a sympathetic ear to those who say their religious beliefs are being trampled on, carving out one religious exemption after another to the First Amendment. Now, the court is poised to take another giant leap this term, possibly delivering the religious right another major victory in its recurring face-off with LGBTQ equality. The religious right has already won a number of other cases in the past few years:
- In 2014, the court ruled 5-4 that the town of Greece, New York, could open its town hall meetings with sectarian prayers, as long as no one was coerced to participate and the practice was open to all religions.
- In 2017, the court ruled 7-2 that a Lutheran church in Missouri could receive government funds for its preschool playground despite the First Amendment’s guarantee of the separation of church and state.
- In 2020, a banner year for religious exemptions, the court ruled that religious schools are not held to antidiscrimination hiring laws, that their students are eligible for state-funded scholarships and that religious entities cannot be compelled to offer their employees contraceptive health care.
- And in February, during the COVID-19 pandemic, the court sided with houses of worship seeking exemptions to a ban on holding indoor services. The court found that, though public health and safety were important, they did not outweigh the right to free exercise of religion. The court underscored that ruling again in April, when in another 5-4 ruling it concluded that religious gatherings in private homes were not subject to government-imposed COVID-19 restrictions.
A new, major victory may come with Fulton v. City of Philadelphia. The case centers on whether a Catholic-run foster care services provider can turn away same-sex couples under the First Amendment’s guarantee of the free exercise of religion. Philadelphia requires religious organizations that receive city funding and contracts to follow its nondiscrimination policy regarding same-sex couples. That policy applies to both religious and nonreligious organizations, but Catholic Social Services, one of the largest child welfare service providers in Pennsylvania, is arguing that it should not have to consider same-sex couples as foster parents, as homosexuality and same-sex marriage go against church doctrine.
Two lower courts have ruled in favor of the city, upholding as precedent the Supreme Court’s 1990 decision in Employment Division v. Smith, which requires any law infringing on religion to be neutral — not targeted at any specific religion — and applied equally to all. But in ruling on Fulton, it’s possible the justices could overturn Smith, a decision in which the conservative Catholic Justice Antonin Scalia wrote the majority opinion.
“What is at stake is the interpretation of the free exercise clause of the Constitution,” said Carl H. Esbeck, an emeritus professor of law at the University of Missouri who filed an amicus brief in support of CSS for the National Association of Evangelicals. “You’d think this is an issue that was long ago decided, but it is really up for grabs here because if you overrule Smith then suddenly the free exercise clause offers a lot more protection than it has in the last 30 years. That is why this case is on everybody’s watch list.”
Esbeck and other court watchers expect CSS to win, too. Steven K. Green, director of the Center for Religion, Law and Democracy at Willamette University, wrote in April for The Conversation that “[r]eligious claimants have been on a winning streak before the Supreme Court in recent years.” And, indeed, a recent study from legal scholars Lee Epstein and Eric Posner, found that the court has ruled in favor of religious claimants 81 percent of the time since Chief Justice John Roberts was appointed in 2005. In the 52 years before his appointment, that figure stood at about 50 percent.
The beneficiaries of these rulings have changed, too. In the 20th century, court decisions often protected religious minorities like atheists. For example, a 1963 ruling prohibited compulsory sectarian prayer in public schools, and a 1972 ruling allowed parents to take their children out of school for religious reasons. But decisions in the past decade or so have repeatedly protected mainstream religious majorities — usually Christian.
“[T]his transformation is largely the result of changes in the Court’s personnel,” Epstein and Posner wrote in their study. “[A] majority of Roberts Court justices are ideologically conservative and religiously devout—a significant break from the past.”
Indeed, six of the nine justices — Roberts, Samuel Alito, Clarence Thomas, Sonia Sotomayor, Amy Coney Barrett and Brett Kavanaugh — are Catholic, the highest number in the history of the court And Kavanaugh raised eyebrows last year when he dissented from the court’s majority opinion, authored by Roberts, that rejected a California church’s challenge to the state’s limitations on in-person gatherings due to COVID-19. Though the court ruled that the church could hold services — but only at limited capacity — Kavanaugh felt that the decision did not go far enough in protecting religious freedom. He wrote that the state’s COVID-19 laws “indisputably discriminates against religion” in violation of the free exercise clause. Roberts, seemingly upbraiding Kavanaugh for his framing of the case as deliberately prejudicial toward religion, wrote that “[t]he notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable.”
Another development in this shift toward favoring exemptions for religious liberty is “Project Blitz” — a strategy of the religious right to flood state legislatures with controversial religious liberty laws intended to challenge the status quo by reaching the Supreme Court. Supported by a coalition of conservative Christian organizations, Project Blitz targets LGBTQ rights, women’s reproductive rights and more. And in Fulton, CSS is represented by The Becket Fund for Religious Liberty, which has taken multiple cases that originated with Project Blitz’s model legislation. The Becket Fund claims to have won 87 percent of its almost 200 cases to date.
Legal scholars see two likely routes for an eventual ruling on Fulton. First, in ruling for CSS, the court could overturn Smith. Marci Hamilton, a professor of practice at the University of Pennsylvania’s Fels Institute of Government who filed an amicus brief in support of the city of Philadelphia, likens Smith to a stop sign in front of a church. “Everybody has to stop there, no matter what you believe,” she said.
But, if Smith is overturned, she continued, that would mean only certain laws would apply to religious entities like CSS. A pastor late for church, she said, could zip right past a stop sign.
“That pastor has an argument he never had before if Smith is no longer the law,” Hamilton said. “The real danger, and in my view, the evil that resides in this concept of religious liberty without regard to consideration of the common good is that we end up permitting religious actors to question laws that are necessary for all of us. It will open the floodgates to religious organizations saying they shouldn’t have to cover any medical procedures they deem against their faith, whether it is a blood transfusion, reproductive care or covering vaccines.”
But not everyone views Smith being overturned as a bad thing. Howard Slugh, general counsel of the Jewish Coalition for Religious Liberty, filed an amicus brief for CSS and would welcome the demise of Smith. “If the court overturns Smith, it would give much more protection to every religious person throughout the country,” he said. “It means the government will have to meet a much higher bar” before it can infringe on the free exercise of religion.
The second path the court might take would be to carve out an exemption specifically for CSS and, by extension, any other religious group that objects to same-sex couples. Many Fulton observers say this is the course they expect the court to take.
“I suspect we will see an opinion that aims to be narrow — one that doesn’t overturn Smith but finds for CSS that the city is not applying their exemptions neutrally,” said Amanda Shafer Berman, an attorney who co-wrote an amicus brief for the Annie E. Casey Foundation in support of Philadelphia. “I think they can end with a ruling for petitioners that doesn’t overturn the apple cart but is one more precedent of a tougher look at government infringing on religious freedom.”
Berman points out that in the oral arguments, which the court heard (remotely) on Nov. 4, the justices asked a number of questions about exemptions that the city of Philadelphia does allow to its nondiscrimination policy — for instance, when a family is not suited to foster a disabled child or does not have the means to care for a child with special needs.
Either way, the impact of a decision for CSS could be enormous, said Green of the Center for Religion, Law and Democracy. Overturning Smith would mean endowing religion with “most-favored nation status” — a phrase coined by the First Amendment scholar and law school professor Douglas Laycock and co-opted by Kavanaugh in his dissent on COVID-19 regulations. Essentially, the concern is that religious liberty would almost always outweigh any other government concerns, like health, public safety and nondiscrimination.
“If you elevate religious objections to neutral laws, then potentially any religious entity that contracts with the government, or any business that doesn’t want to be subject to nondiscrimination laws could say, ‘We have a religious objection to serving same-sex couples or providing certain types of health care,’” Green said. “If they rule that way, I think you are going to find a host of businesses that will raise that claim.”
And if the court makes the more narrow ruling, Green continued, that could have a sweeping impact as well. It all depends on what the judges value more — the rights of religious practitioners or LGBTQ rights.
“I have very little doubt that the religious conservatives on the bench could say there is nothing in the Constitution that mentions LGBTQ rights,” he said. “But we have something in the Constitution that talks about religious rights, and that’s called the First Amendment.”