One of the oldest constitutional understandings in America is that the government should remain neutral about religion, neither favoring it nor interfering with it. The idea is captured in a phrase that President Thomas Jefferson used in a letter to Baptists in Danbury, Conn., in 1802, assuring them that the Constitution’s First Amendment had built “a wall of separation between Church & State.”
It has turned out in 2021, however, that there may well be five Justices of the Supreme Court who would be willing to cast aside – or seriously impair — the neutrality principle, to create much wider constitutional space in the public square for religious worship and expression.
That is the most important lesson to be drawn from what outwardly was a unanimous ruling by the Court this week, requiring the city of Philadelphia to let a Roman Catholic charity take part in its program of foster care for abandoned or threatened children, even though that charity will refuse to accept any foster parents who are married gays or lesbians (because of religious teachings against same-sex marriage). The city, according to the ruling, cannot constitutionally force that organization to stop discriminating in that program based on sexual orientation of would-be foster parents.
What drew all nine Justices to that specific conclusion was an exceedingly narrow 15-page opinion written by Chief Justice John G. Roberts, Jr., that favored the Catholic Social Services foster-care program in Philadelphia. Five other Justices signed onto that opinion, in full: the Court’s three most liberal judges (Stephen G. Breyer, Elena Kagan and Sonia Sotomayor) and two of its conservatives (Amy Coney Barrett and Brett M. Kavanaugh.) But that’s only where the story begins.
For the rest of the story, one must begin by going back to the Court’s order on February 24 of last year, agreeing to hear the appeal by the Catholic agency. Aside from agreeing to review a plea that the Court find a violation by the city of the agency’s religious rights, the Court accepted a more provocative additional question: “Whether Employment Division v. Smith should be overruled.”
In the end, three Justices said flatly they would overrule that 1990 precedent, two others said they would be willing to consider doing that, and a third suggested he might go along with reconsideration, but with apparent reservations. Since it takes the votes of only four Justices to agree to hear and decide any issue, the 31-year-old precedent may well be in serious jeopardy. Almost predictably, some other religious group upset by some government action could return to the Court, asking that same question again.
What is the 1990 precedent (call it Smith for short, as lawyers do)? By a vote of 6-to-3, in one of history’s most important First Amendment rulings on religion, the Court decided that it does not violate that Amendment’s Free Exercise Clause if a state withholds public benefits from a religious person who violated a law that was neutral about religion and was the kind of law that everybody was obliged to obey. (In that case, two members of an Indian tribe were denied jobless pay benefits after they were fired from public jobs because they had used an illegal drug, peyote, in religious ceremonies.)
In essence, the decision has been understood to allow government to refuse to give religious organizations or individuals an exemption from obeying general laws, as long as the law does not single out the religious for unequal treatment under such laws. As an embodiment of constitutional equality principles, it amounted to a soaring reaffirmation of neutrality about religion.
The religious community, and many politicians, were so upset by that ruling that they persuaded Congress to vote, by overwhelming margins, to pass the Religious Freedom Restoration Act to curb the power of government to impose significant burdens on religious practices. That Act, of course, could not overrule outright the Smith precedent because that decision was based on the Constitution, but it was Congress’s way of trying to narrow the impact of the precedent.
When the Court voted to hear a plea to act directly to scuttle the Smith decision, it signaled that the idea would get serious consideration. In the end, the controlling opinion written by Chief Justice Roberts said that the Court did not need to answer that question, since it applied customary Free Exercise principles in find that the city of Philadelphia policy was not a law that was generally enforced; city officials had considerable discretion to grant exemptions to others, but withheld such a release for
Catholic Social Services based on its religious beliefs.
If a reader of Supreme Court opinions stopped with what Roberts had written, the decision in Fulton v. City of Philadelphia would not have seemed of great moment. It was another illustration that the current Court is increasingly sympathetic to “free exercise” claims of religious groups, as it showed, for example, in a series of recent rulings giving churches, synagogues and mosques exemption from strict state controls on gatherings during the coronavirus pandemic crisis.
But reading beyond the Chief Justice, there were 91 pages in the remainder of the opinions issued in the case. Justice Barrett, the Court’s newest members, wrote three pages saying that Smith probably was due for reconsideration, but just not in this case, and she was joined in full by Justice Kavanaugh and in part by Justice Breyer. Breyer’s partial support was a surprise, but it probably represented a gesture by one of the Court’s most senior members to give some comfort and potentially some restraining guidance to a rookie Justice. Her opinion put at least two votes in play for reopening the 1990 ruling.
Three of the Court’s most conservative Justices – Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas – jointly embraced a 77-page opinion written by Alito and a 11-page opinion by Gorsuch. The Alito opinion broadly canvassed religious history going back before the Constitution and it was a scathing challenge to the Smith ruling, and the Gorsuch opinion used heavy sarcasm in doing the same.
The Alito opinion would seem likely to be a starting point if the Court does again agree to decide whether to continue to follow the Smith case. In page and page, that opinion hints strongly at sweeping constitutional protection for religious practices, freeing such action of whatever type unless it explicitly is a threat to “the public peace” or to “safety.” It is not easy to imagine what kinds of laws government could pass that impacted religion that would be able to satisfy the Alito standard.
In short, the Free Exercise Clause might then be understood as an especially favored place under the Constitution, perhaps a significant breach in Jefferson’s “wall of separation.”