Last week the Supreme Court of the United States released an opinion on Fulton v. City of Philadelphia; a major case that was deciding whether or not a Catholic foster agency, Catholic Social Services (CSS), could follow Catholic teaching and not adopt children out to same-sex couples. This decision was narrow in scope but was a unanimous vote in favor of Fulton, which flies in the face of progressive arguments that anti-discrimination laws trump religious freedom.
Many conservative commentators were hoping for another landmark case, Employment Division v. Smith, to be overturned. Smith was authored by Antonin Scalia and is widely considered to be a rare instance of a bad opinion by the late Justice. At least five of the current Justices have voiced that they believe Smith is bad law, but Justices Barrett and Kavanaugh also emphasized that this case was not the vehicle to overturn that bad precedent.
Instead of relying on Smith, the Court used strict scrutiny and focused on a provision in the contract that had an exemption provision at the discretion of the Commissioner of Human Services for the City of Philadelphia. The Court ruled that that provision was not generally applicable, which is the test under Smith’s precedent. It would have been good to see Smith overruled, but at least CSS will see another day. If the City of Philadelphia decides to remove that exemption clause in the contract, this case will likely be relitigated and the outcome could be much more uncertain.
This calls into question how we think about religious freedom here in the United States. Smith holds that as long as a law is neutral or generally applicable, a religious group cannot violate it even if the law bans a religious practice or compels them to do something against their religion. If the Smith test was applied here and the contract was considered generally applicable, CSS, a foster agency that has been operating for centuries, would have to go out of business simply because they choose to follow their religious beliefs regarding marriage.
Ultimately though, it was the progressive, intolerant, anti-religious-freedom crowd that lost in Fulton. In a Mock Supreme Court class that I took, my largely progressive class voted 15-1 in favor of the City of Philadelphia (guess who the lone dissent was). In reality, even the most progressive members of the court, Justices Sotomayor and Breyer joined Justice Roberts’ opinion. Although anecdotal, it provides a serious look into the disconnect between the younger American generation and a serious understanding of American jurisprudence and our fundamental right to religious liberty.
It will be interesting to see where the future of case law surrounding religious freedom goes considering that many anti-discrimination laws and principles about rights to freedom of religion and freedom of association can seem irreconcilable. There will have to be carve-outs for religious groups otherwise there could be instances where, for example, Catholic Churches are legally obligated to accept women as priests, even though that is a theological impossibility. For now, though, that seems highly unlikely. The current Supreme Court is obviously eager to defend religious liberties. Fulton is a big victory for religious freedom and a big victory for Catholic Social Services’ foster families in Philadelphia.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.