Symposium: In Fulton, the court has the chance to jettison Employment Division v. Smith – and the pandemic shows why it should take it

This article is part of a symposium previewing Fulton v. City of Philadelphia.

Lindsay See is solicitor general of the state of West Virginia, which joined an amicus brief on behalf of 13 states in support of the petitioners.

The Supreme Court has options for how to approach this term’s clash between Philadelphia’s foster-placement policies and the religious beliefs of one of its long-standing partners. In Fulton v. City of Philadelphia, Catholic Social Services and two foster parents ask the court to revisit Employment Division v. Smith, but they also lob a multi-front challenge that does not require reversing precedent to prevail. So the court does not have to decide Smith’s fate this term. But it should. The religious liberty cases the COVID-19 pandemic is bringing to the courts underscore why free-exercise claims deserve a more nuanced approach than Smith — and that regardless of whether Smith remains good law in Fulton’s wake, the court is already well on its way.

This year, states face unenviably difficult decisions of where and how we can gather safely in public. But of all the hard questions that go into drafting resulting public-health directives, crafting them to avoid Smith’s pitfalls should not be one of them. Smith reads the First Amendment to allow burdens on religious exercise as long as restrictions apply to secular and religious entities alike, and are not a front for religious animus. With careful drafting that avoids singling out religious meetings or treating them differently than similar secular gatherings, Smith (on its face) may pose a substantial obstacle for claims that COVID-19 orders impermissibly burden free exercise.

Yet despite this hornbook framework, Smith got little airtime in two COVID-19 free-exercise disputes this summer. In South Bay United Pentecostal Church v. Newsom, the court denied injunctive relief in a challenge to a California order limiting attendance at places of worship. Several weeks later, it denied a similar request involving Nevada’s directive capping religious gatherings at 50 people in Calvary Chapel Dayton Valley v. Sisolak. In Newsom, neither Chief Justice John Roberts’ concurrence nor Justice Brett Kavanaugh’s dissent mentions Smith. Two of the three dissents in Sisolak are similarly mum, and Kavanaugh’s invokes Smith only to emphasize the difficulty of justifying exceptions for secular reasons but not religious ones — not its holding about the relatively low threshold for enforcing generally applicable laws.

We should not make too much of these omissions; because the cases sought emergency injunctive relief (as opposed to a merits decision), four of the five opinions were penned by justices in dissent. The majority may well have considered these open-and-shut cases under Smith. But Roberts took time to write a concurrence in Newsom, and although his discussion of how California treated comparable secular gatherings gestures toward Smith, he stops short of invoking it by name. It is also telling that none of the dissenting justices felt the need to rebut this landmark decision directly. At a minimum, the COVID-19 docket suggests many justices are analyzing free-exercise challenges through a different lens than Smith’s alone.

It is not hard to blame them. Regardless of where a judge lands on these issues — undoubtedly somewhere between viewing COVID-19 as sufficiently compelling to apply all public-health orders to religious groups and requiring blanket exceptions for all religious conduct — ending the analysis with Smith leaves something to be desired. The pandemic is a stark reminder that religious bodies may sometimes be asked to make sacrifices for a time, and so many nationwide have done just that this year, remaking the ways they worship and serve their communities. But it is also the case that the First Amendment compels us to view restrictions burdening prayer meetings differently from those limiting summer concert attendance or the ability to enjoy a meal out with friends (no matter how much this year has taught us not to take simple pleasures like these for granted).

We see this instinct played out in the repeated emphasis in COVID-19 cases on the strong interests a worldwide health crisis provides; restricting something as important as religious practice requires an especially pressing justification. The problem with Smith, however, is it makes those justifications all but irrelevant. Broad application and absence of religious hostility are dispositive, not the severity of the free-exercise burden nor the importance of the state’s interest. From that standpoint, it is hardly surprising that the justices who wrote in Newsom and Sisolak asked for more exacting demonstrations than Smith alone requires. Smith is not up to the task of ensuring the First Amendment does not become a casualty of a world upended by pandemic.

And indeed, COVID-19 litigation is not the only time the court has sidestepped Smith in recent years. Consider the ministerial exception: Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission and last term’s Our Lady of Guadalupe School v. Morrissey-Berru upheld exemptions to the Americans with Disabilities Act and Age Discrimination in Employment Act for religious employees tasked with promoting church doctrine. By any measure the ADA and ADEA are neutral, generally applicable laws, yet Smith received only cursory attention in these cases, too. This growing pattern shows that jettisoning Smith would not be as transformative a change as the flurry of briefing on both sides of Fulton might make it seem.

The court’s informal distancing from Smith also means making the break official would not leave lower courts adrift for the cases to come. Smith has been controversial from its beginning, and decisions by Congress and many states to enact laws like the Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act mean courts already know how to resolve free-exercise cases outside Smith’s framework. Similarly, the various opinions in the COVID-19 cases reflect increasing emphasis on what it means to treat religious and nonreligious groups the same, and when consequences for religious entities become more than merely incidental.

The ministerial exemption doctrine is relevant here too: another example of a different path forward. Our Lady of Guadalupe and Hosanna-Tabor do not stop with whether laws are neutral and generally applicable — a test religious entities are prone to lose. But nor do they invite Smith’s concern that religious groups become a “law unto themselves” by casting doubt on every broadly applicable law applied to a synagogue, church or mosque. Instead, these cases advance a robust, history-based conversation on why religious liberty matters to our constitutional order and what it means for a law to infringe upon it — or not — in the first place.

That is the type of conversation we need to have in order to be equipped to address once-in-a-lifetime threats to public health without erasing religious liberty — as well as to discern the line Fulton seeks between enforcing policy fairly and exacting unfair penalties on groups with different beliefs. The interests in Fulton, COVID-19 litigation and the ministerial exception cases are nuanced and central to our most basic freedoms. We need a doctrine recognizing that because the free exercise clause protects religious outsiders, the rest of us may not be attuned to the point where applying an otherwise fair and neutral policy becomes tantamount to asking religious persons and groups to sacrifice part of what makes them who they are. The First Amendment protects all of us, and we all deserve a doctrine that can account fairly for the serious interests on both sides of the scale. And while recent decisions show that the court need not formally discard Smith to keep up momentum in this area, Fulton is an important opportunity to make clear that Smith is no longer leading the way.