This paper addresses the decision in Fulton v. City of Philadelphia (June 17, 2021), in which a unanimous Supreme Court upheld a claim under the First Amendment’s Free Exercise Clause by Catholic Social Services (CSS) against the City. CSS had objected on religious grounds to screening same-sex married couples as prospective foster parents, despite a provision in its contract with the City that prohibited such discrimination. Every Justice voted to uphold the Free Exercise Claim. Only three Justices, however, supported the overruling of the Court’s highly controversial decision in Employment Division v. Smith (1990), which insulated religion-neutral, generally applicable policies from free exercise exemption claims. Three Justices expressed reservations about that question, and three others remained entirely silent about it. Smith endures.
Part I of the paper focuses on the veneer of unanimity in Fulton. Unlike in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), in which the Court’s unanimity reflected a commitment to deep and abiding church-state principles, the unanimity in Fulton is a pretext, and a product of radical uncertainty about the future of free exercise principles.
Part II of the paper analyzes the thickness of the threads by which the Smith decision hangs. Part II.A. discusses the overwhelming hostility to Smith—not shared by us – among concerned citizens, elected officials, academics, and many judges over the past thirty years. Part II.B. criticizes Justice Alito’s lengthy opinion, calling for Smith to be overruled. He is wrong in his effort to make the law from 1963-1990 the centerpiece of Free Exercise jurisprudence. His view of the text and history of the Free Exercise Clause is also wrong, because he assumes that the constitutional concept of free exercise of religion covered all religiously motivated action. As his sources show, “free exercise of religion” in the relevant historical period encompassed only modes of worship and religious belief. Part II. C. analyzes the consequences of Alito’s overbroad conception of free exercise, and explains why these consequences drove the Smith decision, as well as the reluctance of Justices Barrett, Kavanaugh, and Breyer to overturn Smith. Part II.D. analyzes the Court’s recent attempts to narrow the concept of general applicability in the Covid-19 cases about restrictions on gathering for worship, and in Fulton itself. These moves, taken to their logical end, effectively undo Smith. The history of Free Exercise Clause adjudication, however, suggests that neither the Supreme Court nor the lower courts will take the Free Exercise Clause to the religion-favoring extremes that this trend invites.
The authors are both affiliated with the George Washington University. Ira C. Lupu is the F. Elwood & Eleanor Davis Professor Emeritus of Law; Robert W. Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion.
GW Paper Series
Forthcoming, American Constitution Society, Supreme Court Review (5 th ed., 2020- 21)