The Supreme Court is back in (remote) session on Monday, and will again allow “live” broadcasts of its hearings on pending cases. This time, the hearings will be before nine Justices, with Justice Amy Coney Barrett taking part for the first time. Issues of religious freedom, and Justice Barrett’s own work in the past in conservative religious organizations, were prominent when her nomination was before the Senate. This week will bring the first opportunity for the nation to hear how she reacts to a specific controversy over religious freedom.
On Wednesday, the Court will hold a one-hour hearing on the case of Fulton v. City of Philadelphia. That is an appeal by a Roman Catholic organization and two of its members, challenging the city’s refusal to allow that organization to continue to take part in a foster-care program because of revelations that it does not accept same-sex couples as foster parents.
In addition to Justice Barrett’s reaction, this case is certainly the most important one taken up so far in the new term, and it could turn out to be one of the most significant of the entire term. It fits into the long-running, often-heated and deeply emotional conflict over religion in American public life, and the case could be historic, however it turns out.
The modern religious rights movement
Two cultural shifts in America since the early 1980s drew deeper into politics people and organizations who hold traditional religious views, and drew into the center of the legal world a new, energetic and well-financed cadre of lawyers and legal activists with conservative views and agendas. Simultaneously, the legal academy, smarting over complaints that it had become a captive of the Left, strained to hire talented conservative scholars to join in the building national conversation.
A shared aspiration among these groups has been the advancement of religious freedom, aimed at government agencies perceived to be increasingly secularized, and energized by a deeply-set fear that society has a whole was increasingly bent on shutting religion out of the public square and out of the national policy discourse.
The response, though, was not to surrender to the shifts, but rather to challenge them, head-on. In the early 1990s, they joined forces with some of their accustomed adversaries on the Left to achieve a massive victory, which followed what had been seen as a massive loss.
In a historic ruling in 1990, in the case of Employment Division v. Smith, the Court had declared that an Oregon state agency could fire two anti-drug counselors (and deny them unemployment benefits) for ingesting a hallucinogenic substance, peyote, in a religious ceremony carried out by those workers’ Indian tribe. The threat to religion was vividly apparent: it does not violate religious freedom under the Constitution, the decision said, to enforce “neutral laws of general applicability,” even though such laws might interfere with religious beliefs. If religious practice was not directly targeted, it added, such laws could be enforced despite their impact on faith and beliefs.
It took about three years, but challengers from across the ideological and political spectrum persuaded Congress to pass the Religious Freedom Restoration Act. It passed the House without a single “No” vote; it was approved by the Senate, 97-3. Designed specifically to undercut the Smith decision, RFRA required government at all levels – federal, state and local – to justify by the strictest legal standard any action that imposed a “substantial burden” on religion freedom or practices. Such action could be carried out only if it was proven to serve a compelling government policy goal and had the least negative impact on religion.
The revival of RFRA
Although the Supreme Court dealt a serious blow to RFRA in 1997, ruling in the case of City of Boerne v. Flores that it was unconstitutional for Congress to apply that law to state and local governments, RFRA never lost its force for the religious rights movement. In recent years, in fact, it is having its own restoration – though now only in cases involving the federal government because of the City of Boerne decision.
In 2014, in the case of Burwell v. Hobby Lobby Stores, a divided Supreme Court ruled that RFRA protected the devout religious owners of a private business firm against having to provide birth-control methods for their employees, as required by Obamacare (the Affordable Care Act.) The Court also indicated, without explicitly ruling, that religious charities and religious institutions that run hospitals, colleges and other service entities perhaps could use RFRA to get relief from that same birth-control mandate.
And then, just last term, the Supreme Court majority ruled directly on those pleas for relief from the Obamacare mandate, upholding two sweeping orders by the Trump Administration to exempt those religious charities and institutions from having to dispense birth-control materials. It said the Obamacare law itself permitted such orders, but it added, tellingly, that there was at least an argument that the mandate also could violate RFRA.
At the same time, a Court majority has more broadly interpreted the Constitution’s First Amendment and its clause protecting religious freedom from government interference. It ruled in 2019 that the clause required state and local governments to let religious organizations join in public benefits, even if it aids their religious mission, so long as the aid is used for neutral, non-religious activity. It reinforced that approach at the end of June this year, ruling that states could not exclude religious schools from a state tax credit for those who funded scholarships to attend private schools.
Last July, it went further, and applied the clause to protect Roman Catholic parochial schools’ right to fire elementary teachers, even when that violated those teachers’ rights under federal laws against discrimination based on disability or age.
While all of that activity was unfolding, the movement to advance religious freedom was attempting to mount challenges to public benefits for same-sex couples, having failed to dissuade the Supreme Court from ruling that lesbians and gays have a constitutional right to get married. So far, the challengers have gained one significant, if only partial, victory. That was a decision two years ago, in the case of Masterpiece Cakeshop v. Colorado, declaring that a state agency had discriminated against a religious bakery owner who had refused to bake a cake for a gay wedding. The decision was mainly limited to that one baker’s case, leaving broader issues of benefits for same-sex couples for the future.
The Court’s religious bloc
All of these trends seem likely to continue, and perhaps even to intensify, with the addition to the Court of new Justice Barrett. Known now as a deeply devoted adherent of her Roman Catholic faith, who has a background in working with religiously conservative civic groups, she seems likely to become an addition to the bloc on the Court that most strongly favors protection for religion. She replaces the late Justice Ruth Baker Ginsburg, who was regularly in opposition to that bloc.
The bloc appears to be led most often by Justice Samuel A. Alito, Jr., who wrote the Hobby Lobby decision and who has been a dissenter when claims of bias against religion were turned aside by the Court – as when the other Justices refused to hear a druggist’s claim that his religion protected him from a state order compelling him to fill prescriptions for birth-control drugs.
And amidst this activity, the Court’s Smith decision in the peyote case in 1990 remains on the books, and is still being applied as a precedent by lower courts. Congress hoped that it was overturning that decision when it passed RFRA in 1993. However, because the Smith decision was based on the Constitution, Congress had no power to overrule it unless by a constitutional amendment. Religious activists are still deeply unhappy with that precedent, including the Court majority’s comment that giving religions an exemption from generally applicable laws “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”
Now, the Court has been asked – and it has temporarily agreed – to reconsider the Smith decision.
Foster care and Philadelphia
In February, the Court agreed to hear an appeal filed by one of the most energetic of the advocacy groups, the Washington-based Becket Fund for Religious Liberty. The case is Fulton v. City of Philadelphia. In that case, a federal appeals court ruled that the city did not violate the First Amendment religious freedom of Catholic Social Services, when it barred that organization from continuing to sponsor foster-care families. City officials reacted after a reporter for the Philadelphia Inquirer newspaper two years ago notified them that the Catholic entity would not accept same-sex couples as foster parents, because of its religious perception that marriage is properly reserved for a man and a woman.
The appeals court relied directly on the Smith precedent, saying that the city was relying on a state anti-discrimination law that was applied generally, and that city officials had not singled out the Catholic organization because of its religious beliefs. It also found that the city’s action did not violate a state law that is parallel to RFRA in protecting religious freedom.
In taking its case on to the Supreme Court, Catholic Social Services and two of its members argued that lower courts are applying the Smith decision too narrowly, so the Supreme Court should reinterpret that decision to be more tolerant of religious preferences and, if it was unwilling to do that, it should reconsider whether to continue it as a controlling precedent. If the Court were to narrow the precedent by re-interpreting its scope, it perhaps could be turned into a religion-protecting decision that might, at least in part, take the place of RFRA since that sweeping law no longer applies to state and local government.
After Wednesday’s hearing, the Court will work on the case, probably for several months, and announce an outcome before the end of the teerm, in late June.