When the Supreme Court on Wednesday hears Fulton v. City of Philadelphia, much attention will be on the new justice — it’s Amy Coney Barrett’s third day hearing oral arguments — and on a hot-button case about whether the city may cancel the contract of a Catholic foster care agency because it won’t work with same-gender couples. But a potentially broader issue will arise during the hearing that could potentially reshape the status of religion in U.S. law — further strengthening religious freedom rights in ways that some say has already gone too far.
In Fulton, the court will consider whether the city violated the First Amendment by disallowing Catholic Social Services from being part of its foster care system.
The justices are also being asked to overturn a ruling that has been controversial for religious conservatives since it was made 30 years ago: Employment Division v. Smith. The decision, which says a person’s religious motivations don’t exempt them from neutral, generally applicable laws, was written by Justice Antonin Scalia and said that without limits “every citizen [would] become a law unto himself.”
The Trump administration is supporting Catholic Social Services. It says the court does not need to overturn Smith to rule for the agency and alleges there’s evidence of religious bias in the way the city went about enforcing the law.
The court this week said it would entertain taking up Smith, but it is not obliged to make any ruling or detailed comment about it. However, multiple justices have made comments reflecting their willingness to reconsider that ruling, and lawyers are prepared to present arguments about Smith broadly — and how it pertains to Fulton.
The possibility that the newly 6-3 conservative-majority court could overturn Smith and set a new precedent about the legal status of religion comes as the country is deeply unsettled about how to balance LGBTQ and other rights with the rights of religious traditionalists. There are increasingly diverse views about what constitutes religiosity in general and how it should be weighed against other rights and when and how much religion can be burdened.
A 2016 Pew poll showed Americans split down the middle on whether religious business owners who work in the wedding industry should be required to provide services to same-sex couples or be allowed to refuse. A much higher percentage — 67 percent — said employers with religious objections to providing contraception as part of their health-care plan should still be required to do so.
Demographics also show a country steadily becoming more religiously diverse, pluralistic and secular.
“On the one hand, you look at the [Supreme] Court, and especially with Barrett, religious freedom will be locked up for a while, even as the culture is moving in this other direction unabated,” said Daniel Bennett, a political scientist at John Brown University who focuses on religion.
But this feels like a moment of huge potential for some religious groups and their advocates — religious conservatives in particular — who in recent decades have come to see themselves as endangered. Forty-six percent of evangelicals in an AP-NORC poll earlier this year said their religious freedom was under threat, as did 36 percent of Catholics.
Philadelphia Archbishop Nelson Pérez wrote in a Monday op-ed in the Philadelphia Inquirer that the Catholic church in the Fulton case is being told to “leave its faith at the door if it wants to serve those in need.”
That sense of threat prevails even though many religious liberty experts across the ideological spectrum agree that the legal place of religion has been getting stronger and more secure in the last decade or so. There have been multiple high-profile recent wins at the Supreme Court on cases including those favoring religious business owners (Burwell v. Hobby Lobby), religious employers (Our Lady of Guadalupe v. Morrissey-Berru), religious displays (American Legion v. American Humanist Association) and religious schools (Espinoza v. Montana).
Those cases touch on the two big arenas of religion in constitutional law — the establishment clause and the free exercise clause. Establishment cases deal with the Constitution’s ban on Congress endorsing, promoting or becoming too involved with religion. Free exercise cases deal with Americans’ rights to practice their faith.
“Descriptively, religious freedom has been strengthened in recent years,” said John Inazu, a law and religion scholar at Washington University in St. Louis. When it comes to the establishment clause, he said, “there have been almost no recent limitations” in court rulings. President Trump’s base of White Christians, he said, are the primary base of people worried the government is being limited in its ability to express favor to religion. Free exercise tensions between gay rights and religious rights, Inazu said, have a much bigger audience — on both sides of the issue.
Barrett’s addition to the court raises concerns among some that the balance will tilt further toward religious privilege for some at the expense of the nonreligious and religious minorities.
“Does the establishment clause work with the free exercise clause to protect equality in religious freedom for all, instead of just for some?” asked Rachel Laser, president of Americans United for Separation of Church and State. Barrett’s record, Laser said, shows “she’s willing to use religious freedom as a sword, not a shield. So we’re concerned how that will come down.”
The sides and arguments about religious freedom have dramatically changed over the decades.
It was only in the mid-1900s that the Supreme Court started really taking up the issue of religious freedom, University of Notre Dame legal scholar Richard Garnett wrote in August in SCOTUSblog. The issue was usually worked out “politically and practically, and in ways that (for better or worse) did not often depart from public consensus, habit and expectations,” Garnett wrote. Things changed, he wrote, as the courts began trying to figure out how to incorporate the Bill of Rights and to protect the rights of minorities.
In 1947, when the Supreme Court recognized that the establishment clause applied to the states, the separation of church and state became more entrenched, a pattern that continued until recent decades, Inazu said.
Religious conservatives believe the courts went too far. Lori Windham, senior counsel at Becket, a religious liberty firm representing Catholic Social Services at the court this week, said in the 1960s and 1970s there was an “overzealous interpretation” of the establishment clause that in her view restricted religious exercise.
The Smith decision came down in 1990. It involved two Native American drug addiction counselors who were fired for using peyote for sacramental purposes at a church ceremony and then denied unemployment benefits. Ruling against the men, the decision said, “The clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice.”
Highly controversial, the decision triggered the passage of the Religious Freedom Restoration Act of 1993, which limits burdens on religious exercise, except in cases of a “compelling government interest” and must be done in the least restrictive way.
While “religious liberty” is a phrase and cause largely associated today with religious conservatism, the issue in the early 1990s was very bipartisan and was understood to be concerned with protecting religious minorities. The bill was put forward by then-U.S. Rep. Charles E. Schumer (D-N.Y.) and then-Sen. Ted Kennedy (D-Mass.) and was signed into law by President Bill Clinton.
The RFRA only applies to federal cases, though about half of U.S. states have passed their own versions. However, if the court decides to toss Smith and go back to the previous standard — which strongly limited when government could burden religion — or to substantially alter it, that would present a significant challenge to some of the progressive agenda. That includes Democratic presidential candidate Joe Biden’s vow to introduce an Equality Act that he says would end religious exemptions to LGBTQ protections.
“If the court went back to pre-Smith, it would be a strong counter to the Equality Act," Bennett said. “Then it would be this court vs. a progressive Congress, and courts tend to win.”