The Court unanimously sided with the Catholic adoption agency, but a narrow ruling leaves an unclear precedent.
It’s quite something when the Supreme Court not only allows the Free Exercise Clause to trump state equality laws, but does so in a 9-0 ruling. Last Thursday, the justices unanimously upheld a complaint by Catholic Social Services (CSS), a Roman Catholic fostering agency, that the City of Philadelphia had infringed its free exercise rights by refusing to renew its contract unless it agreed—contrary to its beliefs about marriage—to certify unmarried or same-sex couples as potential foster parents. CNN rightly referred to this as a “big win” for religious liberty advocates.
Technically the win wasn’t quite as big as CNN implied. Only a minority—Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch—said outright that CSS’s religious rights trumped the city’s right to insist that married and same-sex couples be treated the same way. The plurality, led by Justice John Roberts and including Justice Amy Coney Barrett, took a less trenchant route. They admitted that a law or practice that was “neutral and of general applicability” might usurp the right to free exercise, leaving the decision on that to another day. But, they said, this did not apply to Philadelphia. The city allowed exceptions to their policy, which meant it was not of general applicability; therefore, it could not deny CSS the benefit of those exceptions if by so doing they forced CSS to either go against their beliefs or forfeit the contract.
Nevertheless, appearances often deceive. Roberts may well have played a long game, getting the liberals onside in the short term to obtain a unanimous decision, but calculating that if in a future case this workaround is unavailable, then conservatives on the Court will join the Alito camp.
We have to hope that is the case, since there is actually a big difference between the two approaches. Further, the Alito view is the only one that makes sense.
An obvious point is that the plurality view hands Philadelphia an absurdly easy end-around. For all the huff and puff in Washington, all it now has to do is immediately announce a hardline “no discrimination, and no exceptions” policy in order to render CSS’s victory pyrrhic: a perverse incentive to extremism and intransigence, if ever there was one.
And this may happen, for there is uncomfortable precedent. In 2018, hardline gay activist Dana Nessel was elected attorney general in Michigan on an explicit ticket to clip the wings of Catholic adoption agencies, whose belief in marriage she called hate propaganda. Once in Lansing, she happily caved to an ACLU lawsuit and ordered all agencies to certify same-sex couples or lose state accreditation. The result was predictable, and bad for kids. St. Vincent’s, which placed over 70 children a year, promptly said it would close rather than abandon its principles. (It has since sued the state, alleging that Nessel had deliberately targeted it for its religion, which is constitutionally impermissible; the matter is currently before the Sixth Circuit, but a final result is still awaited).
But there’s more to it than political practicality. Stand back a moment and think: why do we protect the exercise of religion from state interference as a matter of principle? One possibility is to retreat to some abstract idea, such as personal identity, or dignity, or equality. But this won’t do. For one, it doesn’t explain why we single out religion from other characteristics; for another, it says nothing about how free exercise relates to other rights, or what the balance is between it and states’ rights to legislate.
A much more convincing reason is an impeccably conservative one: namely, the need for society always to build on, support, and harness existing social institutions, save only in response to clear threats of violence or social disharmony. The drafters of free exercise clauses in early state constitutions explicitly followed this line. Religious practice was encouraged and protected—threats to social peace alone being excluded.
Now, this approach is consistent with Alito, but not with Roberts. Accepting that state rules can override religious freedom provided only that they are “neutral and of general applicability” actually sells the pass. It amounts to telling states to respect free exercise but letting them abrogate it if they wish. It leaves the Free Exercise Clause like Cinderella, all dressed up, but with nowhere to go.
If you want an illustration of why this apparently arid argument matters, just cross the Atlantic. The European Convention on Human Rights proudly possesses something like the Free Exercise Clause; Article 9 protects the right to manifest a religion or belief, except when it’s a threat to public safety, order, health, or morals—or there is a clash with the rights of others. The European approach, however, is precisely the abstract and theoretical one whose difficulties I noted a couple of paragraphs ago. Its effects were amply demonstrated by a case in England last year.
In an eerie pre-echo of events in Philadelphia, an evangelical Christian fostering agency in Sunderland was threatened with deregistration unless it foreswore its religious policy of not recommending carers if they were living in a same-sex relationship. The English court impatiently brushed aside its complaint that this threat interfered with the right to religious manifestation. Faithfully applying the abstract, identitarian European approach, the court first said that only the central tenets of a religion deserved protection at all, and that views on sexual morality were not central enough. This was bad enough, but it then went on to say that in any case under Article 9 freedom of religion was just a value that had to be weighed against the societal imperatives: in this case, of ensuring that gay men and lesbians were not discriminated against. It won’t surprise you to know that the societal imperative won out, hands down.
In Europe, in other words, the right to free exercise is effectively limited to pretty harmless demonstrations of fervor that do not seriously get in the way of the state. This view, if it crosses the Atlantic, demonstrates a danger that may equally afflict the Free Exercise Clause here unless carefully handled.
Since only the Alito view provides an effective inoculation against this approach, this time round it can only be two cheers for the high court. But don’t lose hope. It seems fairly clear that this matter will be back before the Court soon, and there is a good chance that next time free exercise will get the respect it deserves.
Andrew Tettenborn is professor of law at the University of Swansea.
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