Some have dismissed last week’s Supreme Court ruling in Fulton v. Philadelphia as small ball. I don’t agree.
To begin with, as I observed last week, the line‐up indicated that there is now a majority on the Court, if not yet a working majority, to replace the Employment Division v. Smith standard with a standard more favorable to accommodation of religious believers’ convictions. While the court may not yet have decided what the replacement standard should be, there are at least five conservative justices for that position (excluding Roberts). Justice Breyer might even conceivably join on a theory different from the others, assuming his views have not changed since the 1997 case Boerne v. Flores. Overturning Smith has been the number one priority of religious liberty litigators for years.
That is one reason to doubt Justice Alito’s suggestion in concurrence that the city of Philadelphia can just reset things to square one by snipping out the exception language which led the majority to find its rule not “generally applicable.” It wouldn’t be back to square one. If Philadelphia tries that, it has to expect to defend its rules under a tougher post‐Smith standard, without being sure of getting votes even from the justices who would rather stick with Smith.
In the mean time, the tremors from the Court’s ruling on the “generally applicable” standard will be felt widely. While some have sought to portray the Philadelphia arrangements as an outlier or one‐off, there is a vast array of existing government programs that provide for at least some exception‐making, but don’t in practice offer those exceptions to accommodate religious exercise. Those existing rules and policies, or many of them, are now going to be potential targets for litigation. It is likely to help complainants greatly in such litigation that the Fulton majority explicitly rejects the city’s argument that the general applicability rule should be interpreted so as to give the government a freer hand in contracting and other “internal” matters than in other contexts.
That’s not the only part of the majority opinion that must be giving heartburn to some in the progressive camp. Striking off on a somewhat novel path, the Court accepted CSS’s contention that its “foster services do not constitute a ‘public accommodation’ under the City’s Fair Practices Ordinance.” While this is a matter of statutory interpretation only, it is fair to say that many modern progressives have sought to define “public accommodation” exceedingly broadly in the context of anti‐discrimination rules, while classical liberals and libertarians have been the ones urging that the definition be kept narrow, in part as a recognition of the fact that, e.g., discrimination by photographers‐for‐hire and private caterers does not pose the same practical dangers as discrimination by motels and transportation operators two generations ago. Keeping the definition of public accommodation narrow helps keep law and litigation from engulfing sectors of society needlessly in cultural conflict.
The majority also rejected Philadelphia’s contention that the city’s actions do not so much as burden CSS’s religious exercise. Finally — and it is once again significant that every single liberal justice signed on — the majority agreed that under the circumstances of the case the city of Philadelphia cannot claim a compelling interest in denying an exemption to a group in CSS’s position. This is, to say no more, not the position urged by progressive groups.
I’ll close by quoting some observations on Twitter (re‐formatted, links added) from Prof. Katie Eyer of Rutgers Law School, which seem to me on point:
Fulton’s outcome adds to a growing body of evidence that the set of First Amendment decisions that grew out of struggles over desegregation — such as [Piggie] Park and Runyon — aren’t the modern Court’s lodestar for claims that anti‐discrimination laws infringe on First Amendment rights. This set of cases, which opined that discrimination simply had no First Amendment value, has been gradually de facto abandoned, first in the context of expressive association doctrine (Jaycees, Dale), and now in the context of religion (Masterpiece, Fulton).Whether this is because the Court views race as different, or because it perceives those cases as uniquely limited to their own time (the long tail of resistance to Brown), the modern Court clearly perceives a First Amendment right to discriminate to be non‐frivolous in nature.
“Religious liberty cannot mean a right to discriminate,” some say. It makes a catchy slogan, I suppose. But it is a proposition with zero support on today’s Court.
