What dueling SCOTUS rulings say about the fight for religious liberty

A few weeks ago, the Supreme Court handed down a significant victory for religious freedom in Fulton v. City of Philadelphia.  In this case, Catholic Social Services (CSS) sued the City of Philadelphia after the city shut down its foster care services.  CSS had been providing foster services to the Philadelphia community for longer than even Philadelphia had. 

Despite this, CSS was shut down for its beliefs that marriage is between a man and a woman and because it would certify only foster families who had a married man-and-woman family unit.  City officials told CSS that "things have changed since 100 years ago" and "it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church."  Fortunately, the Supreme Court held that his type of religious animus violates the First Amendment.

Some saw Fulton as an opportunity to either overturn or replace Employment Division v. Smith, a precedent that has caused many frustrations for religious freedom advocates.  The Smith ruling allowed a law to stand so long as it is "neutral and generally applicable."  Put simply, this means that a law that does not target religion and applies to religious activity and nonreligious activity alike does not violate the First Amendment, even if it prohibits religious activity. 

The problem with this test is that "neutral" and "generally applicable" laws can still significantly impact religious practice.  In a concurring opinion in Fulton, Justice Alito pointed out how this is a problematic test.  This test would allow a law banning alcohol to apply to sacramental wine; a law preventing inhumane slaughter of animals to apply to kosher and halal food; and a law preventing headwear in courthouses to apply to Jewish, Sikh, and Muslim people who wish to observe their religious mandates. 

Advocates of religious freedom were rightly disappointed that this test remains.  Just this past week, the Supreme Court issued a blow to religious freedom when it refused to take up Arlene's Flowers' petition.  In this case, florist Barronelle Stutzman sought to overturn a ruling that her flower shop discriminated against a same-sex couple by not providing flowers for what the couple called a wedding.  The State of Washington pursued fines and a court order requiring the florist to serve same-sex couples in this particular way in the future.  The Washington courts used Smith to conclude that these punishments do not violate the First Amendment.  By denying Arlene's Flowers' petition, the Supreme Court let that decision stand.

Despite Fulton not impacting as much as once hoped, it still provides opportunity for the next wedding services provider — namely, Masterpiece Cakeshop, which is again being targeted by a government agency for "discrimination."  Fulton was decided upon a rarely used portion of Smith, which creates an exception to the "neutral and generally applicable" test.  Where the government has a "system of individualized exemptions," it cannot apply that system in cases of "religious hardship."  In other words, when a government has the authority to review a situation and decide for or against a religious person or entity, it cannot do so unless it has a compelling reason. 

In Philadelphia, the government had the right not to reject CSS's foster license.  The city's own policies allow for "an exception ... granted by the Commissioner."  In CSS's case, the commissioner stated that it "has no intention of granting an exception."  This is despite the city officials being fully aware of CSS's religious concerns.  Additionally, the court also found that discrimination is not so compelling a justification that the city cannot ever provide exceptions.

The laws that are being used to attack wedding services–providers similarly give government discretion as to whether or not to pursue a claim.  These "public accommodation" laws require a citizen to file a complaint with a state agency (often called something like a "Human Rights Commission").  That agency will then review the matter and itself decide whether to take legal action.  This can create the exact inconsistent treatment that should be prevented under this exception to Smith.

In Colorado, for example, the government does not require a cake deemed "anti-gay" to be baked, while a cake for a same-sex "wedding" is required.  This demonstrates that discretion can be abused in such a way as to apply the law one way against religious objectors and another way for non-religious objectors. 

According to Fulton, this system requires a compelling justification.  And Fulton also established that "discrimination" is not compelling enough to maintain a system whereby no religious exceptions can be allowed.  If this theory is applied to Masterpiece Cakeshop, or any other wedding service–provider, a different outcome could be possible.

Religious freedom advocates should all be glad for this and find hope in the ongoing battle to preserve religious liberty.

Image via supremecourt.gov.

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