By Jason Wood

Can organizations who voluntarily bid on and win government service contracts, then illegally discriminate in how they provide that service, citing religious objections? Three decades ago, that question was seemingly answered in the negative by Employment Division v. Smith, with Justice Scalia concluding that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”[i]

The Supreme Court is currently reconsidering that stance in Fulton v. City of Philadelphia, a case that was argued this past November. The plaintiff is Catholic Social Services (CSS), who ran a foster care agency in Philadelphia. By refusing to vet same-sex couples, the agency ran afoul of Philadelphia’s Fair Practices Ordinance which bars discrimination in public accommodations.

CSS sued the city and lost at the district court and again at the Third Circuit. Their argument is similar to that of Masterpiece Cakeshop, claiming that they were unfairly targeted for their religious views. In support of this claim, CSS showed that the city approved exemptions for other foster agencies to engage in race- and disability-based discrimination.[ii]

But those other agencies are arguably making evidence-based decisions about what is in the best interests of children. CSS makes no such claim. To prevail under Smith, CSS would have to show that they were being targeted; treated differently than other, similarly situated parties, because of their religious beliefs (for example, a secular foster agency that was allowed to deny services to same-sex partners.)

So CSS is asking the court to (among other things) overturn Smith because they say it misinterpreted the Free Exercise Clause.[iii] To be clear, they claim that originalist icon Antonin Scalia’s originalist interpretation of the clause (quoted above) was dead wrong. Of course, if this is true, then all of Scalia’s hypotheticals in that decision would have a different outcome as well; all manner of sincere religious exemptions from generally applicable laws would seem to be required.

Rejoice polygamists, draft dodgers, parents who want to deny life-saving medical treatment for their child, and anyone who wants to use illegal drugs! Uhh… as part of a sincere religious ritual, of course.

As the Court has previously assessed, “[t]o permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”[iv] Ok, so maybe… rejoice Rand Paul?

If CSS is to prevail, it seems the Court would have to find a much narrower (and more workable) way to get there. Oral arguments hinted at a much more frightening possible future in which the courts decide which religious beliefs are “honorable and respectable” and which are not.

Comments from some Justices suggest the case might come down to how similar they feel this discrimination is to racial discrimination of the past. For example, Justice Barrett stated “I think we would agree that there’s really not any circumstance we can think of in which racial discrimination would be permitted as a religious exemption.”[v] But while this statement is “obviously” true today, it certainly wasn’t when the morality of racial discrimination was still hotly debated.

And Justice Alito asked “Didn’t the Court in Obergefell say . . . that there are honorable and respectable reasons for continuing to oppose same-sex marriage? Would the Court say the same thing about interracial marriage?”[vi] Of course, today’s “honorable and respectable reasons” sometimes become tomorrow’s shameful bigotry.

As recently as the 1960’s, opponents of the Civil Rights Act used religious justifications in their arguments, including in speeches on the Senate floor[vii]. Given the pace of social progress in this area, it seems likely that a few short years from now the notion of discriminating on the basis of sexuality will be equally “obviously” wrong.

With the increasingly politically partisan nature of Supreme Court appointments, the Court faces a modern legitimacy challenge whenever they rule on partisan issues. But if the Court chooses to move beyond evaluating the sincerity of religious beliefs and start examining the rightness or wrongness of the beliefs themselves, they risk losing their perceived legitimacy on virtually all Free Exercise questions. Is the court 6-3 for the Republicans, or is it 6-3 for the Catholics?

[i] Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (Stevens, J., concurring in judgment)).

[ii] Brief for Petitioner at 28, Fulton v. City of Philadelphia, No. 19-123 (U.S. argued Nov. 4, 2020).

[iii] Id. at 42-47.

[iv] Reynolds v. United States, 98 U.S. 145, 167 (1878).

[v] Transcript of oral argument at 112, Fulton v. City of Philadelphia, No. 19-123 (U.S. argued Nov. 4, 2020).

[vi] Id. at 39.

[vii] For example, Robert Byrd quoted Leviticus 19:19 to justify his opposition to the Civil Rights Act during his 14-hour filibuster of it.