(RNS) — In his keynote address to the Federalist Society last November, Justice Samuel Alito hinted that it was time to overrule Employment Division v. Smith, the landmark 1990 decision that, as he put it, “cut back sharply on the protection provided by the free exercise clause of the First Amendment.”
Alito’s concurrence in Fulton v. Philadelphia last week looks very much like it was written to do the deed. It’s a 77-page treatise that subjects the late Justice Antonin Scalia’s majority opinion in Smith to an evisceration the like of which is rarely seen in Supreme Court jurisprudence.
Two other justices, Clarence Thomas and Neil Gorsuch, signed on to Alito’s concurrence (with Gorsuch writing his own anti-Smith concurrence). Another two, Justices Amy Coney Barrett and Brett Kavanaugh, made clear via a concurrence by Barrett that they are also looking to get rid of Smith.
Nevertheless, Barrett and Kavanaugh — together with the court’s three-member liberal wing — joined Chief Justice John Roberts in upholding Smith for purposes of deciding Fulton. Effectively, they put Smith on life support until a majority can decide what to replace it with.
What Smith does is preclude any “neutral” and “generally applicable” law from being challenged as violating the First Amendment’s guarantee of religious free exercise, leaving only outright discrimination against a religion practice as grounds for such challenge. So far as Scalia was concerned, anyone who wants a religious exemption from such a law should go to a legislative body to procure one.
Fulton involved Philadelphia’s prohibition of discrimination against same-sex couples, which caused the city to decide that unless Catholic Social Services agreed to certify same-sex couples as foster care providers, the city would cease referring children to the agency. Refusing to comply on the basis of a religious belief that marriage must be between a man and a woman, CSS sued.
On its face, Philadelphia’s anti-discrimination law would seem to be neutral and generally applicable: The ban on discrimination states a rule that applies to everyone without fear or favor. But because it gives the city’s commissioner of human services the discretion to make exceptions (albeit no exception had ever been made), the court found that the law failed to satisfy the general applicability standard.
As a result, the court applied what’s known as “strict scrutiny” — requiring that the law in question advance a “compelling government interest” and be narrowly tailored to do so. Writing for the court, Roberts did not deny that the city had a compelling interest “to enforce its anti-discrimination policies generally” (pretty much conceding general applicability), and asked instead “whether it has such an interest in denying an exception to CSS.”
The answer was no, and thus the action of the city in enforcing the law was determined to violate CSS’ free exercise rights.
Now, as Alito pointed out, if the city simply removes the commissioner’s power to make discretionary exceptions it will meet Smith’s general applicability standard and, voila!, have the right to deny CSS access to foster care referrals. It’s clear as day, however, that the present court doesn’t want the city to be able to do that.
So why didn’t Barrett and Kavanaugh, and perhaps also Stephen Breyer (who joined part of Barrett’s concurrence) just go ahead and overrule Smith? The answer seems to be that they consider strict scrutiny as currently applied too blunt an instrument to use in free exercise cases. As Barrett put it:
The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights — like speech and assembly — has been much more nuanced.
Barrett goes on to raise a number of tricky issues that need to be resolved, including whether to treat institutions differently from individuals, whether direct and indirect burdens on free exercise should be treated differently, and whether strict scrutiny itself is the proper standard of review.
Among the unfortunate results of Smith is that it has served to keep the court from developing its free exercise jurisprudence in the kind of straightforward way Barrett suggests. Instead, it has provoked federal and state religious freedom restoration acts, exceptions like the Religious Land Use and Institutionalized Persons Act, and (as in Fulton) the tortured interpretation of “general applicability” as “universally mandatory.”
The sooner Smith is overruled and Barrett’s project gets underway, the better.