The Fulton Decision: A Good Outcome with More Work to Do

This is a guest commentary by SBTS student Aaron Woodall. 

Yesterday, in the case of Fulton v. Philadelphia, the Supreme Court of the United States announced its unanimous decision that the City of Philadelphia violated the Free Exercise Clause of the First Amendment by requiring a Catholic foster care agency to certify same-sex couples as foster parents. The first word characterizing the Christian response to this ruling must be: gratitude. The decision represents an important victory for advocates of religious liberty, and manifests penultimate provision for “the least of these” (Matt 25:40); there are needy and hurting children in Philadelphia who will be placed in loving homes by Catholic Social Services because of this decision, and for that, we must be grateful. But our gratitude for the provision of the religious freedom of Catholic Social Services and similarly situated religious agencies is mitigated by the reality that the narrow nature of this decision virtually guarantees that they will have to return to the Supreme Court again to secure their liberty. To credit this claim, it is necessary to unravel the web of opinions published with the decision.

Chief Justice John Roberts, who authored the Court’s opinion joined by justices Breyer, Kagan, Sotomayor, Kavanaugh, and Barrett, is to be commended for his tact in passing the veritable camel of a unanimous opinion through the needle’s eye of his narrow ruling. However, while the unanimity of this decision should not go understated, the lack of formal dissent does not mean that the Court spoke with one voice. Three combative concurring opinions were filed along with the majority opinion: the first, notably authored by the newly minted Justice Barrett, defended the scope of the decision and served as a harbinger for the coming assault, the second, authored by Justice Alito, was a magisterial 77-page legal broadside arguing that a key precedent undergirding the majority should be overturned (more on this momentarily), so establishing a broader, firmer foundation for religious freedom jurisprudence, and the final concurrence, authored by Justice Gorsuch, complemented Alito’s external critique with a brief, though blistering, internal critique of the majority’s reasoning. 

The locus of the justices’ disagreement was the role of a prior Supreme Court decision: Employment Division, Department of Human Resources of Oregon v. Smith. Decided in 1990, this landmark ruling interpreted the First Amendment’s Free Exercise Clause to require a test: if a law is “neutral and generally applicable,” then it cannot constitute a violation of the free exercise of religion. Chief Justice Roberts argues for the majority in Fulton that Philadelphia’s non-discrimination statute fails the Smith test because it includes a process by which agencies may apply for and be granted exemptions from the statute at the discretion of the City, which “renders a policy not generally applicable…because it invites the government to decide which reasons for not complying with the policy are worthy of solicitude (emphasis mine)” (Fulton, Opinion of the Court 10). Since the injury in Fulton could be remedied within the framework of Smith, Justice Barrett argues in her concurrence that there was “no need to decide in this case whether Smith should be overruled” (Barrett Concurrence 3). Alito and Gorsuch, joined by Justice Thomas, disagree emphatically. Gorsuch claims that deciding to overrule Smith was the (note the definite article) reason why the Court agreed to hear the case in the first place (Gorsuch Concurrence 1). And Alito writes the opinion Gorsuch is looking for, making the case that Smith was wrongly decided on the grounds that it did violence to the original meaning of the First Amendment and misused Supreme Court precedent.

So, what does all of this mean? Why should we care what Justice Alito thinks about a Supreme Court case decided over thirty years ago? This matters because the majority’s decision in Fulton to stick with the framework of Employment Division v. Smith drastically narrows the breadth of the decision, and narrow decisions have broad loopholes. The majority’s application of Smith—the entire basis for its ruling—hinges on the inclusion of a single exemption clause in a single subsection of a single article of the City of Philadelphia’s statuary guidance for foster care certification. So, as Alito argues, if the City wishes to keep its requirement that all foster care agencies must certify same-sex couples, over and against the conscientious objections of religiously affiliated agencies like Catholic Social Services, all it must do to remain in the Court’s good graces is remove seventeen words from its statute. As Alito puts it, “this decision might as well be written on the dissolving paper sold in magic shops” (Alito Concurrence 8). 

What does this decision mean for the future of Free Exercise jurisprudence? So long as the Court remains bound to the framework of Employment Division v. Smith, the Free Exercise clause will remain planted in shallow soil—liable to be uprooted at a moment’s notice. Unless a surer foundation for religious liberty is secured, petitioners like Catholic Social Services and Masterpiece Cakeshop will continually be dragged before the Supreme Court to defend their natural right to live in accord with their conscience, expending years of effort and ungodly sums of money on legal fees in the process. In his concurrence in Fulton, Justice Alito shows us the path forward, which really calls for about thirty years of backtracking. We should follow the path he charts and recover the original sense of the Free Exercise clause, protecting religious exercise from all but “narrowly tailored statutes [pursuant of] compelling governmental interests” (Alito Concurrence 13).

Religious freedom is the “first liberty” because the obligation to worship is imposed upon the conscience by the existence of God. Where there is a duty, there is a right, and the government’s responsibility is to provide a legal environment that allows for the fulfillment of that duty. I am thankful for the Supreme Court’s unanimous decision yesterday to maintain such an environment for Catholic Social Services in Fulton v. Philadelphia, however long the decision may tarry. But Scripture’s teaching on the purpose of government, alongside the natural law’s understanding of duty and rights, demands a legal foundation for religious liberty more robust than that which the Supreme Court’s death grip on Employment Division v. Smith affords. Fulton v. Philadelphia provided a necessary remedy for the injury it confronted but leaves more work to be done.