When a state (or local) law has an adverse effect on a religion, and when a religious organization challenges that law in federal court on the basis of the “free exercise” clause, two key precedents usually come up: the Navajo peyote case and the Santeria animal sacrifices case. In the Navajo peyote case, Employment Division v. Smith (494 U.S. 872, 1990), the Supreme Court ruled that the state of Oregon did not have to give Native Americans an exemption to its law against the use of the hallucinogenic drug peyote so that they could legally use it for ritualistic purposes. The basis of the ruling was that when a law is religiously neutral and “generally applicable,” and its adverse effect on a religious practice is incidental, then the law does not have to hold up to strict scrutiny and is likely to be able to stand without any religious exemption being required. In the Santeria animal sacrifices case, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (508 U.S. 520, 1993), the Court ruled that a city ordinance banning animal sacrifices for religious purposes could not stand because it had been clearly passed to single out a religious group for exclusion.
The city of Philadelphia routinely contracts with private agencies for the providing of foster care, where the agencies certify families as being suitable for taking in foster children. For many years, Catholic Social Services was one of those agencies. But in 2018, when a spokesperson for CSS told a newspaper interviewer that the agency could never certify a same-sex couple, the city government canceled its contract with CSS on the grounds that it was violating the city’s nondiscrimination law. CSS sued.
(And it should be noted that this decision by the city of Philadelphia did have the potential to do some tangible harm, in that it would drastically reduce the number of children able to receive foster care and even disrupt arrangements for foster care that were already in place. It should also be noted that at the same time that CSS was providing foster care certification only for opposite-sex married couples, there were other agencies in the city certifying same-sex couples, which CSS was doing nothing to interfere with.)
Given that the city of Philadelphia was not either requiring or forbidding CSS to do anything and was certainly not stopping anybody from practicing a religion freely, but rather, was merely ceasing to do business with CSS, and given that discrimination on the basis of sexual orientation was involved, one might have expected CSS to lose the case. At minimum, one could reasonably have predicted that the three Democratic appointees to the Court would vote on the side of the city of Philadelphia. As it happens, not only did CSS win the case, but the decision in Fulton v. Philadelphia was unanimous. However, the Court did not entirely agree on the constitutional reasoning.
For the majority of justices, it hinged on the words “generally applicable.” The majority felt that the policy instituted by the city of Philadelphia was not generally applicable, and thus it was not the precedent from the Navajo peyote case, but rather the precedent from the Santeria animal sacrifices case, that applied in this case. The majority also drew upon the Colorado baker case, noting that “government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.” What stopped the justices from seeing Philadelphia’s law as generally applicable was that it allowed the city government to consider exemptions to its requirements on a case-by-case basis. Where exemptions were available for some, the Court ruled, if the city withheld an exemption from an agency simply because its reason for seeking the exemption was a religious hardship, then the city would have to show that it had a compelling interest in doing so. The Court also considered the fact that the relevant section of the law was added after the city of Philadelphia had decided that it was going to require CSS to accept same-sex couples or forfeit its contract to provide foster care services.
The justices who ruled on this basis were Roberts (who wrote the decision), Kavanaugh, Barrett, Sotomayor, Kagan, and Breyer. While the Court was unanimous on awarding victory to CSS, three justices–Alito, Gorsuch, and Thomas–wanted to set a broader precedent. They wanted to overturn the precedent of the Navajo peyote case. Alito and Gorsuch wrote concurring opinions to this effect. (A concurring opinion is an opinion that agrees with the Court’s overall decision in the case but disagrees with certain parts of the reasoning.)
As noted above, the precedent in Smith v. Employment Division (abbreviated as Smith in the excerpt below) is that if a state law places a burden on a religious group, but if that state law is generally applicable, then it does not have to withstand strict scrutiny and the state is not likely to be required to make a religious exemption. Alito, Gorsuch, and Thomas disagree with that.
From Alito’s concurring opinion
There is no question that Smith’s interpretation can have startling consequences. Here are a few examples. Suppose that the Volstead Act, which implemented the Prohibition Amendment, had not contained an exception for sacramental wine. . . . The Act would have been consistent with Smith even though it would have prevented the celebration of a Catholic Mass anywhere in the United States. . . . Or suppose that a State, following the example of several European countries, made it unlawful to slaughter an animal that had not first been rendered unconscious. That law would be fine under Smith even though it would outlaw kosher and halal slaughter. Or suppose that a jurisdiction in this country, following the recommendations of medical associations in Europe, banned the circumcision of infants. A San Francisco ballot initiative in 2010 proposed just that. A categorical ban would be allowed by Smith even though it would prohibit an ancient and important Jewish and Muslim practice. Or suppose that this Court or some other court enforced a rigid rule prohibiting attorneys from wearing any form of head covering in court. The rule would satisfy Smith even though it would prevent Orthodox Jewish men, Sikh men, and many Muslim women from appearing. Many other examples could be added.
We may hope that legislators and others with rulemaking authority will not go as far as Smith allows, but the present case shows that the dangers posed by Smith are not hypothetical. The city of Philadelphia (City) has issued an ultimatum to an arm of the Catholic Church: Either engage in conduct that the Church views as contrary to the traditional Christian understanding of marriage or abandon a mission that dates back to the earliest days of the Church—providing for the care of orphaned and abandoned children.
Like the ruling in the Colorado baker case, this one is limited in the precedent that it sets. In fact, as Alito also notes in his concurring opinion, the city of Philadelphia may well be able to evade it just by rewriting its law to remove the exemption clause.
Full text of the ruling, with all opinions included
Article in Politico, June 17, 2021