Symposium: Religious privilege in Fulton and beyond

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

Micah Schwartzman is the Harry Cross Dillard professor of law at the University of Virginia School of Law. Richard Schragger is the Perre Bowen professor of law at the University of Virginia School of Law. Nelson Tebbe is the Jane M.G. Foster professor of law at Cornell Law School. All three joined an amicus brief in support of Philadelphia.

The world has changed since a couple months ago when we were invited to write this comment on Fulton v. City of Philadelphia. Justice Ruth Bader Ginsburg has died, and Amy Coney Barrett is now on the court. The significance of that change might not be obvious to the casual court watcher, who has seen several recent religious freedom cases decided 7-2. Yet the shift in the court’s composition may well have profound implications for Fulton and for religious freedom more generally. For the past several terms, Chief Justice John Roberts has been the median or swing voter on critical issues in this area, but he is unlikely to remain in that position. In cases like Fulton, he will probably be replaced as the median justice by one of the justices to his right, all of whom are markedly more conservative in their free exercise jurisprudence.

The replacement of Ginsburg with Barrett may thus have far-reaching consequences for how the court will approach religious exemptions. Since the court decided Employment Division v. Smith 30 years ago, the rule has been that the free exercise clause does not require religious exemptions from laws that are, in the court’s words, “neutral and generally applicable.” In Fulton, the court has been asked to adopt an aggressive interpretation of what laws satisfy that standard. Some proponents of religious accommodation, including Justices Samuel Alito and Brett Kavanaugh, have argued that if a law has any secular exceptions that are in tension with the government’s stated policy interests, then the government must also grant accommodations for religious actors. This “single secular exception” or “most-favored nation” approach to what makes a law neutral and generally applicable, made prominent by Alito in Fraternal Order of Police v. City of Newark, has mostly functioned as a less-than-subtle attempt to undermine the court’s holding in Smith. It is hard to see how that approach could be used in Fulton, since Philadelphia has not granted any secular exemptions from its antidiscrimination policy, but that is the petitioners’ leading argument.

And that litigation choice made sense before the death of Ginsburg. The question of what it means for a law to be generally applicable was a pressing one as long as Roberts was in control. He never signaled that he was willing to overrule Smith, unlike four other conservative justices who have called for revisiting the court’s interpretation of the free exercise clause. Moreover, his votes in the COVID-related cases from this past summer, South Bay United Pentecostal Church v. Newsom and Calvary Chapel v. Sisolak, put a damper on expectations that he might join the justices to his right. In those cases, the chief turned away religious challenges to orders restricting mass gatherings, even though those orders had been characterized by churches as exempting certain secular actors but not religious ones.

With the addition of Barrett, however, the court’s conservatives may no longer need the chief’s vote to overrule Smith. If so, questions about neutrality and general applicability could fall by the wayside. Perhaps there is some irony that it may take a former clerk of Justice Antonin Scalia, who wrote the court’s opinion in Smith, to bury what is his most important and influential opinion under the First Amendment. But that outcome is far more likely now than it was two months ago.

If the court uses Fulton to reverse Smith, we should expect three further developments with respect to religious freedom.

First, although the court might purport to restore the pre-Smith compelling interest test, as Congress did when it reinstated the 1963 rule of Sherbert v. Verner in the Religious Freedom Restoration Act, we should not expect that it will interpret that test according to precedents from the Sherbert era. During the Warren and Burger courts, the free exercise clause was balanced against establishment clause constraints in cases involving religious exemptions, which were only rarely granted. But the Roberts court has shown no interest in such limitations, and, in Burwell v. Hobby Lobby, the court disparaged pre-Smith caselaw that conflicted with its expansive approach to religious free exercise. Hobby Lobby was a RFRA case, but there is every reason to expect that the court will sideline its earlier free exercise jurisprudence if it applies heightened scrutiny in determining whether to grant exemptions.

A second development, building on the first, is that the conservative majority will distinguish, marginalize or overrule cases limiting exemptions that impose harms on third parties. The court recently has shown little concern for women who have lost health insurance coverage for contraception because of its decisions in Hobby Lobby and Little Sisters of the Poor v. Pennsylvania. As Alito made clear in his concurring opinion in Little Sisters, in his view, there can be no establishment clause objection even when the government has given categorical and “unyielding weight” to religious interests and even when, as a result, it has imposed substantial and material harms by depriving tens of thousands of people of statutory entitlements that they would otherwise have received. Ginsburg, by contrast, strongly opposed religious exemptions that impose serious harm on women in her very last opinion.

Before Little Sisters, the court had never approved an exemption that shifted serious burdens onto third parties, with the single exception of a case involving a church’s control over its membership. Now that exception will be taken as the rule. In Fulton, a conservative majority will almost certainly ignore or reject arguments that granting a religious exemption from the city’s antidiscrimination policy will lead to both material and dignitary harms to children and LGBT parents. The court has come close to taking this step in previous LGBT cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission. But in Fulton, and for the first time, the court may interpret the free exercise clause itself as authorizing exemptions that harm others and without any balance or constraint under the establishment clause.

Third, if a conservative majority reverses Smith, we should expect it to favor religious over nonreligious viewpoints, following the court’s dicta in Cutter v. Wilkinson that “[r]eligious accommodations … need not come packaged with benefits to secular entities.” A recent example is Illinois Republican Party v. Pritzker, a decision by the U.S. Court of Appeals for the 7th Circuit that Barrett joined a few weeks before her nomination. The case involved a COVID-related public health order by Illinois Gov. J.B. Pritzker (D) that limited most social gatherings to 50 people but exempted religious organizations and houses of worship. The state Republican Party challenged the order, which also barred them from hosting large political gatherings, on the ground that the exemption unconstitutionally favored religious viewpoints in violation of the free speech clause. The 7th Circuit rejected that claim and affirmed Pritzker’s order, holding that “speech that accompanies religious exercise has a privileged position under the First Amendment.” Under this reasoning, the government can favor religious speech even when it suppresses core political speech.

For decades, conservatives have argued that religious views must be treated equally when compared to other social and political perspectives. That is the lesson of the court’s equal access cases and its recent decisions involving school funding in Trinity Lutheran v. Comer and Espinoza v. Montana Department of Revenue. But with Barrett’s elevation, and with the chief’s likely displacement, we have little confidence that the court will respect its own precedents concerning viewpoint neutrality and equal treatment of religious and nonreligious views.

With the chief at the center of the court, it was easier to imagine the court deciding Fulton on narrower grounds, focusing perhaps on problems of neutrality or general applicability, as the court did in Masterpiece Cakeshop to avoid broader questions about how to resolve conflicts between religious freedom and LGBT rights. But, now, with an even more conservative majority, the court seems poised to transform the free exercise clause into a constitutional source of religious privilege — with little, if any, concern for substantial harms to others, whether dignitary or material, and, despite years of conservative argument to the contrary, with no real constitutional commitment to rejecting discrimination on the basis of religious status.

Perhaps Fulton will be decided in ways that avoid some of these concerns. Maybe at the outset of a newly configured court, the chief will prevail on his conservative colleagues to support a more cautious, incremental approach; or perhaps a majority, possibly including some of the liberal justices, will settle for a narrower decision, one focused on neutrality and general applicability, either in the manner of Masterpiece Cakeshop or on a “most favored nation” approach. But the court’s conservative majority will almost certainly demand that the government fund religious organizations despite their refusal to abide by neutral and generally applicable conditions — and even when those conditions are justified by what have, up until now, been recognized as legitimate and indeed compelling governmental interests. In mandating exemptions in this context, the court is set to abandon core principles of religious freedom, including protecting against harm to others and requiring religious neutrality. Either way, Fulton is only the beginning.