June 22, 2021
Holly Hollman is the General Counsel and Deputy Executive Director of the Baptist Joint Committee on Religious Freedom.
in Fulton v Philadelphia, The court came to a surprisingly unanimous result: Philadelphia violated the freedom of exercise of the Catholic Ministry of Social Services because the agency refused to comply with the city’s non-discrimination policy and therefore refused to sign a contract with it. How did the court come? Not the way CSS and many of its allies wanted it, nor the way Philadelphia and many of its allies worried.
Chief Justice John Roberts’ 15-page comments focused on a contract clause that allowed the commissioner of the city’s Department of Public Services to grant an exemption “on his own discretion.” This clause may be designed to help ensure that placement of a child with a specific foster parent is in the child’s best interests. The city has never exempted contractors from non-discriminatory requirements for certification of potential adoptive parents.However, the court held that due to the government’s discretion, the city’s non-discrimination policy is not “universally applicable” and is therefore not subject to Employment Division v. Smith It will refuse to exempt the rule of neutral law of general application.
On the contrary, the court found that this contract language triggered a strict review of the city’s refusal to grant religious immunity to CSS.As Roberts explained: “Government policies can withstand strict scrutiny only when they promote the’best interests’ and make strict adjustments to realize these interests. In other words, as long as the government can not burden religion Way to realize its benefits, it must do so.” No veto SmithWith CSS and many of its allies urging it to do so, the court held that Philadelphia must exempt CSS from the government function of working with same-sex couples, which is to certify potential adoptive parents.Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch only agreed with the result-not reasoning-and argued in different opinions Smith It should be revisited.
For three centuries, Smith Criticized for failing to provide adequate protection of religious freedom, including from Christian organizations that support the city FultonIn cases involving the enforcement of anti-drug laws against Native Americans who ingest cactus as a religious sacrament, Smith It is believed that the free exercise clause does not necessarily prevent the government from imposing a burden on religion. This decision leaves room for a higher level of review by the court in rare cases.In addition, the Federal Restoration of Religious Freedom Act and similar state laws and constitutional rulings are also opposed Smith By requiring the government to have a compelling reason before imposing a significant burden on religious activities. SmithHowever, in many cases it is still the applicable law.
Briefing Criticism Smith Both parties submitted Fulton. But as Justice Amy Connie Barrett emphasized in her consent, revisit Smith It is unnecessary for the court’s decision and raises questions about what will replace it.This Fulton The decision seems to be strategic to avoid re-examination Smith, At least until now.
Because it refuses to reconsider Smith, The court conducted a rigorous review, but almost no elements related to the constitutional standard. Strict review needs to analyze the so-called burden imposed by the government on religious activities, the government’s claimed interests, and the adjustment of government actions to satisfy the interests.
Regarding the issue of burden, the majority opinion simply pointed out that Philadelphia “increased the burden on CSS’s religious activities by choosing to reduce its mission or approve the relationship inconsistent with its beliefs.” The court, based on CSS’s belief that “certification is equivalent to endorsement”, Postponed CSS’s claim to burden. However, as a briefing for the city and its friends, the city did not interfere with CSS’s beliefs or practices regarding marriage in a religious environment. The city also does not impose a burden on any privately funded ministries of CSS. It simply requires contractors who voluntarily perform the functions of the delegated government to comply with reasonable city policies.
Similarly, the courts are also slightly inadequate on the issue of government interests. The city and its allies emphasized that the non-discriminatory policy ensures equal treatment for all adoptive parents and children. The court recognized this interest as “important,” but then simply said: “However, based on the facts of this case, this interest cannot be a reason to reject CSS’s religious activity exception. The exception system established under the contract weakens its non-discrimination policy. An argument that cannot be deviated from.”
With this, the court seemed to rely on a single fact—the prospect of an exception—both triggered a rigorous review and concluded that the city could not meet that standard. The failure to take a serious part in the city’s arguments allowed the court to avoid the key issues that made these cases difficult.can any Pious religious belief itself constitutes the government’s burden on religion? Is there an important legal difference between religious opposition to same-sex marriage and other religious opposition (such as marriages of different faiths)? Does the requirement for religious exemption from non-discrimination rules depend on the availability of other providers?This Fulton The court did not provide any guidance.
In the context of delegating government responsibilities, the court’s respect for CSS in terms of burdens and lack of participation in compelling interests are worrying. Fortunately, Fulton The courts are not required to provide for religious exemptions in government contracts or non-discrimination policies.This is a good result for religious freedom, because non-discrimination clauses usually promote cooperation between religious entities and the government while preventing religious discrimination. Friends of the Court Briefing. In our view, if the court properly conducted a rigorous review, the city could have won.
Fulton This marks the second time that the court has used narrow grounds to support free exercise in the conflict between religious opposition to same-sex marriage and the government’s prohibition of discrimination against LGBTQ people. 2018 Masterpiece Cake Shop A baker’s decision to refuse to make a custom wedding cake for a same-sex couple for religious reasons was based on administrative records, which the court said showed hostility to religion. The court did not resolve whether and under what circumstances the constitution required a broader exemption from Colorado’s non-discrimination laws.
These moderate decisions have the advantage of judicial restraint. They avoid all-or-nothing results—whether they are seeking the broadest religious immunity or those who oppose any religious immunity. In this regard, these rulings are consistent with the religious freedom tradition that recognizes and balances multiple interests.but Fulton with masterpiece There is little help to the lower courts, and the same conflicts will continue to occur.