Any day now, the Supreme Court is set to release its opinion on Fulton v. City of Philadelphia, a case argued in October 2020. The central conflict in the case deals with a Catholic foster care organization that contracts with the city to screen potential foster parents for placement. Following the Court’s ruling in Bostock, the city of Philadelphia implemented expanded anti-discrimination policies that prohibit discrimination based on sexual orientation and gender identity. Catholic Social Services, which receives funding from the government, opposes these policies and hopes to receive a religious exemption so it does not have to “endorse” same-sex and unmarried couples. As indicated by their discussion of the case, the majority-conservative Court seems poised to grant this exemption under the free exercise clause of the First Amendment. Interestingly, the Court has also expressed interest in revisiting a pivotal free exercise case, Employment Division v. Smith.
Employment Division v. Smith (1990) held that generally applicable regulations that are religiously neutral are valid even if specific religious practices are negatively impacted. Before this ruling, judges had the unenviable task of having to decipher laws’ religious interference without weighing in on the validity or sincerity of any particular religious practice. To avoid this murky, case-by-case line drawing on tough religious liberty questions, the Court developed a straightforward rule: the First Amendment says you can believe what you want, but your religious practices cannot break the law. It’s simple, efficient, and most importantly, easily enforceable. However, in this “one nation, under God,” the contradictions of religious liberty jurisprudence are quickly becoming untenable.
It should be noted that when the Court came up with this rule, it was dealing primarily with religious undesirables; Mormons, Native Americans, and eventually Satanists. In fact, many culture wars ago, Mormonism was one of the primary battlegrounds on which First Amendment skirmishes were fought. You’ll notice, for example, despite America’s relatively strong religious liberty protections, polygamy remains illegal. Over a century ago in Reynolds v. United States (1878), Chief Justice Morrison R. Waite said of Mormon polygamy, “[t]o permit this would be to make the professed doctrines of religious belief superior to the law of the land.” In a post Hobby Lobby (2014) judicial era, this kind of sentiment toward the First Amendment seems almost incomprehensible — then again, the plaintiff in Reynolds wasn’t a corporation.
Similarly, the result of the ruling in Smith was that Native Americans who practice their traditional religions could not get an exemption to federal narcotics regulations to use sacred medicines in ceremonies (e.g. cannabis, peyote, etc.) However, when the plaintiff in a religious liberty case is (white and) Christian, judges are hesitant to apply the same rule. Judges are not machines; they have personal and political biases. When a case comes along that forces them to apply a precedent in a way that contradicts their personal beliefs, they will find a way around it, formalism is damned (hence Alito’s obvious salivation at the mere mention of Smith at oral argument).
To the cynical SCOTUS observer, this case seems like a slam dunk for Catholic Social Services. But for the Court, Fulton is a real monkey’s paw. To grant Catholic Social Services an exemption, the Court would have to overturn (or at least significantly weaken) Smith. While this would be a huge win for conservative religious groups, it would also effectively throw the entire regulatory state into pandemonium. Anyone would be able to challenge any law based on their religious beliefs and the courts simply do not want to deal with that kind of a litigious mess. What the Court wants is two systems of justice — one for good religious groups and one for undesirables. But will the Court be able to have its cake and eat it too?
One way or another, Catholic Social Services is likely to get its exemption. The majority-conservative Court is bitter over Bostock and Fulton provides a prime opportunity for the old Roberts two-step. In his professed commitment to maintaining a nonpartisan perception of the Court, Roberts likes to give the liberals one step forward before taking two steps back. He graciously granted gay and trans people equal protection under Title VII, a toothless provision in an at-will employment society, so now it’s time for the home team to score one. And in classic Roberts fashion, his ambitions lie far beyond Catholic Social Services.
The unspoken context of Fulton is the decades-long capitalist project of dismantling all public services. The state has been systematically gutted to the point where the only services the government reliably provides are violence, incarceration, and licenses for private contractors. The end game here is to abolish regulations on the provision of public services by ensuring the state doesn’t directly provide any. When the administration of government is contracted out to the lowest bidder and private businesses don’t have to adhere to any pesky regulations, conservatives can effectively implement their theocracy while ensuring peak profit margins for their government contracts.
While Smith is at issue, it isn’t really the silver bullet liberals imagine. In fact, there is a world where overturning Smith could have progressive results. Spiritual Indigenous people could regain unrestricted access to their sacred medicines, Quakers could stop paying taxes that fund military projects, all your polyamorous friends could move to Utah and become even more toxic, etc. The real issue here is the socio-economic system hiding behind Smith. If the Court overturns Smith in Fulton, LGBTQ+ Americans will undeniably suffer – but not necessarily because of Smith. In a sense, the Court is right about Smith; it has become a cumbersome obstacle for its preferred religious and financial interests. But without it, we’ll have to grapple with the question of what is the point of the government? Is it merely a contracting authority for capitalists? Or do we want to live in a country with public services and civil rights?
Nicholas Ripley is a legal aid attorney in Pittsburgh, PA who focuses on LGBTQ+ civil rights. All views expressed in this piece are the author’s alone.
Suggested citation: Nicholas Ripley, Polygamy, Peyote, and Foster Care: America’s Fraught Relationship With Religious Liberty, JURIST – Professional Commentary, May 19, 2021, https://www.jurist.org/commentary/2021/05/nicholas-ripley-america-religious-liberty/.
This article was prepared for publication by Vishwajeet Deshmukh. Please direct any questions or comments to her at commentary@jurist.org
