Chief Justice John G. Roberts Jr.’s opinion agreed with CSS — but his ruling was limited in a crucial way. Writing for the court, he noted that the city’s requirement burdened CSS by forcing it to either deny its religious beliefs or withdraw from a 50-year commitment to providing foster care services. Under Supreme Court precedent, a government cannot place such a burden on anyone unless it is narrowly tailored and serves a compelling government interest.
Since the city’s contractual provision at issue here involved wide discretion by city officials, it cannot be said to have been narrowly tailored. And the court noted that even if the city has a compelling interest in promoting nondiscrimination, the issue was whether refusing to consider an exemption to that nondiscrimination policy was consistent with the constitutional guarantee of free exercise. On that, the court found, it clearly was not.
This is surely the right decision. The Constitution was written at a time when government provided few services or subsidies, meaning early government agencies would have to act directly to violate religious liberty. But given today’s expansive web of services and subsidies, the state has enormous power to restrict religious liberty indirectly. The court’s decision recognizes that, and finds that a government cannot force a religious entity to deny their faith to receive equal access to a service or subsidy. Holding the opposite would effectively empower governments to indirectly push people away from holding “incorrect” religious views — precisely the danger that the First Amendment seeks to prevent.
The opinion, however, could be exploited in future cases by justices who hold a more restrictive view of religious liberty. In 1990, the court held in Employment Division, Department of Human Resources of Oregon v. Smith that a law that burdens a religious belief or practice would pass First Amendment muster so long as it is neutrally applicable and does not specifically target one religion. Justice Samuel A. Alito Jr.’s concurring opinion in Fulton argues that Philadelphia would merely need to change its nondiscrimination policy by eliminating the exemption process entirely, and Smith would apply. There would be no question about whether refusing to exempt CSS from the policy violates its religious freedom because, per the Smith ruling, the policy would apply neutrally across the board. Alito rightly contends that Smith itself must be reconsidered to truly protect religious liberty.
When that question inevitably arises, the court must take care to distinguish cases of genuinely neutral laws from laws that appear neutral but have the intent of coercing or punishing belief. Government policies that, for example, make substances such as peyote illegal, even though they are used in Native American religious ceremonies (as was at issue in Smith), would likely fall into the former camp. That’s because, while it places a real burden on religious practices, the effect is unintentional. However, policies that specifically set conditions on the receipt of government benefits that violate religious beliefs — as was the case in Fulton — clearly fall in the latter camp, and should be unconstitutional.
Such a distinction would place cases such as Fulton squarely under the guidance of the court’sunconstitutional conditions doctrine. That line of cases holds that the government cannot do indirectly what it cannot do directly; it cannot withhold valuable benefits from an entity or individual unless the recipient foregoes the exercise of a constitutional right. The right of religious belief, and the free exercise thereof, is in the First Amendment, alongside the freedoms of speech and the press, because it is a core facet of a free society. Taken together, the First Amendment says that people can think what they want, say what they want, write what they want and gather together with other people in support of those beliefs. Chipping away at one element of those freedoms, even if the people punished hold unpopular beliefs, threatens all of them.
Protecting religious liberty is thus a linchpin in protecting human liberty generally. The court’s decision in Fulton shows that it understands that — and one can hope that future decisions on similar cases will show the court will continue its historic role as the one institution inalterably devoted to the protection of individual freedom.
An earlier version of this column incorrectly stated that Chief Justice John G. Roberts Jr. wrote an opinion for all nine justices in Fulton v. Philadelphia. He was writing for the court. This version has been corrected.