In March 2018, the City of Philadelphia barred Catholic Social Services (CSS) from placing children in foster homes because of its (CSS’s) policy of not licensing same-sex couples to be foster parents. CSS sued complaining that the licensing program had a disparate impact among religious groups, in part because of a set of discretionary exceptions applied by the city. It also argued for the overruling of the Smith case.
The Supreme Court concurred, finding that Philadelphia’s actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents, in violation of its stated religious beliefs.
The most interesting part of the Fulton case is what it did not decide, but what it hinted it may do in the future. Three concurring Justices—Alito, Gorsuch and Thomas—called for the immediate overruling of Smith and the full restoration of strict scrutiny analysis to all cases involving the Free Exercise Clause. The opinion by Alito traces the back-and-forth history of the strict scrutiny doctrine and finds that strict scrutiny is even more compelling today:
“We should reconsider Smith without further delay. The correct interpretation of the Free Exercise Clause is a question of great importance, and Smith’s interpretation is hard to defend. It can’t be squared with the ordinary meaning of the text of the Free Exercise Clause or with the prevalent understanding of the scope of the free-exercise right at the time of the First Amendment’s adoption. It swept aside decades of established precedent, and it has not aged well. Its interpretation has been undermined by subsequent scholarship on the original meaning of the Free Exercise Clause. Contrary to what many initially expected, Smith has not provided a clear-cut rule that is easy to apply, and experience has disproved the Smith majority’s fear that retention of the Court’s prior free-exercise jurisprudence would lead to ‘anarchy.’”
Three other concurring Justices—Barrett, Kavanaugh and Breyer—joined in an opinion urging caution before overruling Smith. Barrett and Kavanaugh did state that they thought that Smith was wrongly decided, but Barrett posed the question:
“Yet what should replace Smith? 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. There would be a number of issues to work through if Smith were overruled.”
The recognition by a clear majority that Smith is no longer a good law, however, constituted a huge victory for religious freedom, consistent with the views of Justice Brennan who strongly dissented from Smith when it was decided.