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After Fulton, what next?

July 12, 2021 Frontpage No Comments


A couple of weeks ago, as I write this, the Supreme Court, in a case called Fulton v. City of Philadelphia, delivered what we had hoped would be a knockout blow for religious liberty. But after reading the opinion, what we had hoped for turned into a dud, as the good guys won, but not with the victory they might have had.
Let’s set the stage: For at least a century Catholic Social Services of Philadelphia (CSS) had operated a foster care agency. In 2018 the local media reported on the efforts of a same-sex couple who requested foster care information from another agency, Bethany Christian Services. The couple was told that it could not foster through Bethany because it had a policy not to foster to same-sex couples, which led to the media discovering — as if this was a shock to anyone — that CSS had the same policy.
The upshot was that the local department of human services, which oversees foster-care agencies in the city, began an investigation, which turned up the fact that of all similar agencies working under contract with the city, only CSS and Bethany had such policies. The city decided that something must be done to CSS and Bethany since their policies discriminated against same-sex couples.
There followed a lot of back and forth between the city and CSS, much of which took on an anti-Catholic animas. The two agencies were warned that if they did not agree to working with same-sex couples their contracts with the city would be suspended and would not be renewed. Bethany ultimately threw in the towel and agreed to comply with the city’s demand.
CSS, however, stuck to its guns, refused to compromise its Catholic values, and — you guessed it — sued the city, claiming that its contract provisions violated its rights under the First Amendment’s Establishment Clause, among other assertions. It asked for an injunction against the city’s actions. The federal district court ruled against the city, and that decision was upheld by the court of appeals. CSS then reached out to the Supreme Court which agreed to hear the case. It was argued before the justices last November.
The result was a unanimous victory for CSS. One would naturally think that a 9-0 victory for religious liberty would be a landmark decision. But one would be wrong. It seems that the tsunami we expected turned out to be only be a trickle. And the reason goes back to a 1990 case about peyote-smoking members of the Native American Church, Employment Division v. Smith, in which the Sainted Justice Anton Scalia wrote the decision of the court.
In Smith, Alfred Smith and Galen Black were fired from their jobs because they smoked peyote “for sacramental purposes” in their church. Peyote, as you might have deduced, is a hallucinogenic drug. The employer who fired them was a drug rehabilitation center. Smith and Black then filed for unemployment benefits which were denied because the employment division deemed their discharge was due to work-related misconduct. The Oregon appeals court reversed holding that the pair were discharged in violation of their free exercise rights under the First Amendment.
Originally Oregon’s Supreme Court held that the denial of unemployment benefits for misconduct in this case was not part of the state’s enforcement of drug laws but to protect the state unemployment compensation fund which was inadequate to justify the burden that was placed on religious practice. To make a long story short, after going back and forth between the U.S. Supreme Court and the state’s top court over issues of religious exemptions — there were none applicable under the state law — the case was finally resolved by the Supreme Court and the denial of unemployment benefits was upheld.
That, of course, struck a lot of people as odd. Why was the sacramental use of the drug not given First Amendment protections? And that was at the heart of the Philadelphia case.
In Smith the court found that Oregon’s controlled substance law contained no religious exemptions for their use. Thus the court found that the enforcement of “a neutral law of general applicability” was not a violation of an individual’s First Amendment rights even though it may have the effect of an infringement.
What the court said, and this is key to the Philadelphia case, is that if a law does not seek to directly limit religious freedom, “neutral,” and applies to everyone “general applicability,” it satisfies the constitutional test of such state action.
Now back to Philly. In the contract between the foster-care agencies and the city, there was no religious exception; however, it did have a provision where the department head might, upon request, grant an exception to the contract’s terms. Thus, since there was a possibility of exceptions being granted, the contract rule was not one of “general applicability” and did not fall under the protection of Smith, and was thus unenforceable as a violation of CSS’s religious freedom.
The uproar over the Smith ruling led to Congress passing the Religious Freedom Restoration Act in 1993. Smith’s holding was condemned in many quarters and it was thought that the Fulton case was going to be key in overruling it, as many religious liberty stalwarts had hoped.
But it was not to be.
Thus the victory, although unanimous, was not the harbinger of things to come that conservatives were seeking.
Justice Samuel Alito, concurring in the judgment, wrote a scathing opinion of his own, writing “Smith’s holding about categorical rules does not apply if a rule permits individualized exemptions, and the majority seizes on the presence in the city’s standard contract language giving a city official the power to grant exemptions…if the city wants to get around today’s decision, it can simply eliminate the never-used exemption power.”
Now we’ll wait for another Fulton, one that might garner a couple of more votes to overrule Smith and put some sense into religious liberty and the law.
As I am writing this the Supreme Court did give us a victory on the last day of its term. It invalidated a California requirement that the names of donors to charities, political organizations, and other nonprofits must be given to the state. This rule was adopted by then-Attorney General Kamala Harris as a method of policing fraud.
I’ve written about this before (“To disclose or not to disclose: That is the political question of the day” August 2019), where several organizations were challenging the requirement that they turn over a list of certain donors as part of their annual reporting. One of the main objections to the rule was that the AG’s office tended to leak certain names which fed cancel culture, and we’ve seen what has happened to folks in California who have donated to certain conservative propositions. They and their employers have suffered boycotts and harassment.
Not surprisingly, all three liberal justices voted to uphold the law.
(You can reach Mike at: and listen to him every Thursday at 10 a.m. central on Faith On Trial on

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