RELIGIOUS LIBERTY HANGS IN THE BALANCE THIS SUMMER

BY JOSH HAMMER

his summer, the U.S. Supreme Court is set to decide the most consequential religious freedom case in a generation. The case, Fulton T v. City of Philadelphia, has the potential to gut First Amendment precedent that has stood for over 30 years. It will also signal how the new conservative majority will rule on religious freedom protections.

Last year, the court held in Roman Catholic Diocese of Brooklyn, New York v. Cuomo that houses of worship were unjustly placed under stricter COVID-19 orders than, say, local liquor stores. Some speculated that the opinion offered a glimpse into the court’s future philosophy on the First Amendment. But now social conservatives are eager for Fulton to unveil the full picture.

The facts of the case are straightforward: Three years ago, the city of Philadelphia ended its contract with Catholic Social Services for foster care placement because Catholic Social Services wouldn’t place children with same-sex couples. To do so, Catholic Social Services said, would violate the group’s religious beliefs regarding traditional marriage.

After the city took action against the organization, Catholic Social Services then sued. The Constitution, they argue, protects a religious organization’s ability to carry out its social work efforts in accordance with sincerely held religious beliefs.

But the city hasn’t backed down, pointing to the three-decade-old precedent in a case called Employment Division v. Smith.

In Smith, two members of the Native American Church — Galen Black and Alfred Leo Smith — were fired from their jobs for ingesting peyote as part of a traditional religious ceremony. The state of Oregon subsequently denied them unemployment benefits, reasoning that their own “misconduct” led to the terminations.

The men believed the state’s actions violated their free exercise of religion. The case made its way to the U.S. Supreme Court, and, in 1990, the court’s majority ruled in favor of the state of Oregon. Conservative Justice Antonin Scalia penned the opinion. It was a crisis moment for religious freedom.

Certainly no one believes faith should be a “get out of jail free” card. But what happens when state laws violate an individual’s constitutionally protected practice of religion? The Smith ruling seemed to leave religious petitioners little in the way of legal recourse.

But now, by placing Smith in its crosshairs, the Fulton decision could change that.

Given the current composition of the court, you’d think conservatives would feel confident about the case’s outcome. After all, with the addition of Justice Amy Coney Barrett last year, the balance on the bench now sits at a 6-3 conservative majority. But at least some have concluded that the “conservative” side of the judiciary is often far less reliable in delivering clear-cut victories for conservatives than many red-state voters might hope. Last term, for example, Justice Neil M. Gorsuch issued the Bostock v. Clayton County ruling, which interpreted the word “sex,” as written in Title VII of the 1964 Civil Rights Act, to include concepts like sexual orientation and gender identity. For those who believe statutory interpretation should be based on the original public meaning of statutory language, the Bostock decision transgressed the most basic work of judicial interpretation.

It was enough to cause the freshman Sen. Josh Hawley of Missouri to declare “the end of the conservative legal movement, or the conservative legal project, as we know it.”

Certainly, the Bostock decision is a travesty for conservatives who hope judges stick to interpreting laws rather than rewriting them. But Bostock shouldn’t be weighed in isolation. A more nuanced assessment of the court’s recent religious liberty decisions reveals reasons for cautious optimism within conservative quarters. For starters, in last term’s Espinoza v. Montana Department of Revenue, the court took pains to undermine the legitimacy of the so-called “Blaine amendments” — state constitutional provisions of a distinctly anti-Catholic origin that prohibited government funding of private religious education.

And in Our Lady of Guadalupe School v. Morrissey-Berru, the court expanded the “ministerial exception,” exempting religious institutions from certain anti-discrimination laws so they can hire staff and clergy in accordance with their distinct religious missions and teachings.

All of this, however, may simply be prelude to Fulton — the case provides the court with its cleanest opportunity yet to overturn that pesky peyote precedent. As Stanford Law professor Michael W. McConnell has argued, Smith is inconsistent with the Framers’ deliberate linguistic choice to protect not merely worship, but the “free exercise” of religion, from government interference. And as my former boss, Judge James C. Ho, has pointed out, “Under Smith, government may regulate religious activity, without having to satisfy strict scrutiny, so long as the regulation is a ‘neutral law of general applicability.’” In other words, Smith makes it too easy for government to interfere with the right to live one’s religion.

Barrett’s vote could play a major role. It was decisive in last term’s Cuomo case, and her questions at the Fulton oral arguments in November suggest a strong sympathy for the plight of Philadelphia’s Catholic Social Services. Maybe the relevant question is not whether Catholic Social Services will prevail under the new conservative court, but rather how it might prevail; in other words, will the court issue a narrow ruling, or will it formally overrule Smith? For me, and many others, the answer to that question will determine whether Hawley’s statement about the end of “the conservative legal project” proves premature or prophetic.

Josh Hammer is the opinion editor at Newsweek.