We should start by acknowledging the clear positives in the Supreme Court’s decision in Fulton v. City of Philadelphia. First, the Court held that City foster care officials violated the Free Exercise Clause by refusing to contract with Catholic Social Services (CSS) for the provision of foster care services unless CSS agreed to certify same-sex couples for foster care in violation of its religious beliefs. Second, that conclusion was unanimous—every justice agreed that the City had violated the Constitution in some fashion. The liberal justices did so without even so much as a qualifying concurring opinion noting the narrowness of the majority’s holding, as we saw Justice Kagan issue in Masterpiece Cakeshop in 2018. Philadelphia lost and lost big; we should hope that City officials will take the lesson to heart. And if they don’t, we should hope the district and circuit court judges think again before ruling in the City’s favor a second time.
But therein lies the problem with Chief Justice Roberts’ majority opinion. The grounds underlying the decision are narrow—very narrow indeed. And recent experience suggests we should be wary of Philadelphia officials trying again to cut off CSS’s foster care certification services, with a judiciary again ready to cover for them.
Chief Justice Roberts wrote for the majority that the City’s violation of the Free Exercise Clause lay in its failure to exercise discretion in granting an exception to CSS from the City’s otherwise generally applicable nondiscrimination contract provision prohibiting discrimination on the basis of sexual orientation. Because such an exception existed under the contract, the nondiscrimination provision was deemed to not be a “generally applicable rule.” Instead the City official’s unhindered discretion in granting exceptions created a religiously based hardship targeting CSS that was not generally applicable. Therefore, it applied strict scrutiny to the City’s decision—the City would have to show its actions satisfied a compelling government interest and was narrowly tailored to achieve that interest. As the City did not have a compelling government interest to deny CSS an exception, its actions were held to be unconstitutional. Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett joined this holding.
Roberts’ framing of the case is important for understanding the narrowness of the holding. First, Roberts expressly rejected attempts by CSS and the three other justices to frame the nondiscrimination provision as one generally applicable to all private contractors with the City. In an eyebrow-raising sentence sure to garner attention in future cases, Justice Roberts wrote that “the inclusion of a formal system of entirely discretionary exceptions…renders the contractual non-discrimination requirement not generally applicable.” Second, Roberts also rejected attempts to treat foster care services as public accommodations subject to the City’s Fair Practices Ordinance, which includes a similar nondiscrimination clause generally applicable to all public accommodations.
Why does this framing matter? By finding that the City’s actions were not the result of a generally applicable rule, Roberts avoids the question that the parties, amici, and court-watchers expected it to take up: Whether to reconsider or overrule Employment Division v. Smith. The 1990 Smith case, authored by Justice Scalia, held that a neutral, generally applicable rule that incidentally burdens religious practice did not violate the Free Exercise Clause. Smith has been a controversial precedent—Congress responded by passing the Religious Freedom Restoration Act (RFRA) in 1993, restoring the application of strict scrutiny for claims of federal violations of religious liberty. Many states passed similar acts at the state level after City of Boerne v. Flores held that RFRA could not be applied to the states. Conservatives have long pushed for Smith to be overruled or substantially modified. But opposition to Smith was not partisan. Prior to the jurisprudential revolution around LGBTQ rights, many liberals objected to it—Smith’s dissenters were the liberal Justices Blackmun, Brennan, and Marshall, and RFRA was passed by a unanimous House and a 97-3 vote in the Senate. Yet by holding that the City’s actions were not the application of a generally applicable rule, Roberts was able to avoid taking up these questions surrounding Smith.
Roberts makes some missteps to arrive at the end of his dance around Smith. Justice Gorsuch’s concurrence in the judgment, joined by Alito and Thomas, scrutinizes the footwork and convincingly finds it wanting. The specific contractual provision Roberts relies upon in his opinion concerns the placement of foster children in a certified home, not the decision to certify foster parents in the first place, and Gorsuch accuses Roberts of rewriting the contract. One can also question what, exactly, should replace Smith. Justice Alito’s 77-page concurrence in the judgment, joined by Gorsuch and Thomas, is a detailed review of the Free Exercise Clause and its pre-Smith case law. He concludes by recommending the adoption of the pre-Smith rule. But those are questions for another day.
The bigger question conservatives should have after Fulton is why Roberts, Kavanaugh, and Barrett found it necessary to go through a not terribly convincing dance at all to arrive at such a “wisp of a decision” that “might as well be written on the dissolving paper sold in magic shops,” as Alito complains at various points in his concurrence. And what a wisp Fulton is. Turning as it does on the specific contractual language interpreted under arguably contestable Pennsylvania common law principles, Fulton is unlikely to be relied upon as a significant decision in future Free Exercise cases.
Moreover, it seems unlikely to even decide this issue between the parties themselves. The City of Philadelphia has made clear it wants to be rid of CSS and the foster parents it certified, even if that means reducing the number of foster homes available for an overburdened system and desperate children. The City can simply remove the discretion afforded its officials in the contract, and the same case is set up again for the courts to review. Once again, the lower courts will apply Smith, which remains good law. In such an event, the Court will see these same dance partners stepping through their respective moves again to present the same dispute in three or four years.
Justice Barrett’s concurrence, joined by Kavanaugh and Breyer, suggests a worrying answer. “What should replace Smith?” she writes. “I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime.” It seems Barrett and Kavanaugh (and presumably Roberts) are not satisfied with simply returning to the pre-Smith days, but they also do not have another solution readily at hand.
Such indecisiveness speaks to the broader problem facing the conservative legal movement on issues of cultural importance. Rather than daring to rule, the repeated pattern in cases involving abortion, gay rights, religious liberty, and the presence of religion in the public square is that when the conservative position wins, it often is only on small steps forward that do not even resolve the parties’ dispute. It is reasonable to expect to see CSS and the City of Philadelphia back at the Supreme Court in a few years. The Little Sisters of the Poor were called back to the dance floor a second time and still did not fully resolve the legal issues in dispute. They may make a third trip if the Biden administration revokes the Trump administration’s religious accommodation regarding contraception coverage in healthcare plans. And two days ago, a Colorado state court once again found Jack Phillips and his Masterpiece Cakeshop in violation of Colorado’s antidiscrimination laws when he refused to make a cake celebrating a gender transition when doing so would violate his religious beliefs. He too is looking at a repeat invitation to perform on the big stage. Play it again, Jack.
Yet when the conservative position loses, as in Obergefell or Bostock, it loses in a way that prevents the question from returning to the Supreme Court quickly, if at all. It took 19 years to bring back a first direct challenge to Roe, and it has taken another 20 to get a second, Dobbs v. Jackson Women’s Health Organization, which will be decided next year. The decision of Roberts, Kavanaugh, and Barrett to sidestep the controversial Smith holding should not make conservatives optimistic about them taking a bold step when considering Dobbs. When it comes to the big number at the end of the show that sends everyone home for a while, Roberts (and seemingly Kavanaugh and Barrett) have stage fright. As Professor Vermeule wrote concerning June Medical last year, this betrays a false humility that treats precedential opinions with too much deference, rather than considering the whole context of a line of cases and their overall effect on the fabric of the law.
At the end of the day, the conservative legal establishment takes delight in claiming that religious liberty proponents have won 18 of the last 19 religious liberty cases. And that is a solid achievement. But repeat issues, even repeat parties, appear in these cases decided over the last 10 years. Stronger conservative victories in some of these cases may have headed off the need for so much litigation reaching the Supreme Court, as well as the need for return trips. And conservative victories have generally been at best a string of singles or doubles, as one of its proponents put it on Twitter. When the big hits come, they go the other way. Even six singles in a row may only get you three runs. Then it just takes one grand slam for the other team to win.
–Gaius Musonius Rufus