Last week in Fulton v. Philadelphia, the Supreme Court held that Philadelphia violated the Free Exercise Clause when it declined to employ a Catholic provider of foster care services because of the charity’s refusal to certify same-sex couples as appropriate foster parents. The Court reasoned that, because Philadelphia was willing to consider exceptions to its contractual nondiscrimination requirement, its prohibition on discrimination was not a generally applicable rule. The law thus was not insulated from constitutional challenge by Employment Division v. Smith. That important case permits government rules to burden religious exercise, so long as they are generally applicable and not targeted at religion. While the majority’s opinion did not overrule Smith, two concurrences joined by five justices suggest that Smith is on life support.      

Limiting Smith

The majority opinion breaks new ground for religious freedom even though it does not overrule Smith. It cements a strong reading of what is required for a law to be generally applicable. In Fulton, the Court clarifies that the mere presence of possible exemptions to the burdensome rule is enough to fail that requirement. Thus, the majority’s opinion makes Smith‘s safe harbor inapplicable to any law with unused “formal mechanisms” for exemption. Ironically, the state may be in worse shape if it provides no exemptions for secular activities, because when it does provide such exemptions, the judiciary might still uphold the law on the basis that the secular exemptions have stronger justifications than potential religious ones. For instance, in South Bay United Pentecostal Church v. Newsom the debate between liberal and conservative justices turned on whether exemptions denied churches from certain pandemic requirements were comparable to the exemptions granted grocery stores.

Indeed, Fulton’s gloss on what it takes for a law to be generally applicable might be thought so strong as to be in tension with Smith itself. Smith’s rationale is to permit states to enact legislation that adversely affects religious exercise so long as they do not discriminate against religious activities. But in Fulton, the plaintiff did not have to show actual discrimination. The city had given no exemptions to any organization, religious or secular.

Once the safe harbor of Smith is lost, the burden shifts to the state to show a compelling interest to justify the law burdening religious exercise. The Fulton Court rejects the claim that the state’s interest in equal treatment of prospective same-sex foster parents justifies the intrusion on religious exercise, because the state itself has shown the interest is not sufficient by offering to grant exemptions. And the Court describes this interest only as “weighty,” thus leaving open the question of whether the interest is compelling even were there no exemptions.   

Nevertheless, the holding is modest in the sense that Philadelphia could eliminate its power to grant exemptions and the case would come back to the Court, with plaintiffs forced to argue that Smith itself should be overruled. This opinion thus bears the familiar hallmarks of the Chief Justice’s style. It is written in the narrowest way possible so as both to reach his preferred outcome and yet bring along the liberal wing of the Court. Yet as is also characteristic of the Chief, he got something in return from the liberals—a new limitation on the definition of general applicability that triggers Smith‘s safe harbor.  

Despite the significance of the majority opinion in limiting Smith, much of the media commentary on Fulton has buried the lede. The concurring opinions show there are very likely five votes to overrule Smith. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, is explicit in his 77-page concurrence, discussed below. But Justice Amy Coney Barrett’s concurrence, joined by Justice Brett Kavanaugh, shows that at least two other justices are considering overruling the case as well. 

Barrett bluntly states: “as a matter of text and structure it is difficult to see why the Free Exercise Clause—lone among First Amendment Freedoms—offers nothing more than protection from discrimination.” She notes, however, that overruling Smith would generate a wide variety of doctrinal puzzles. In particular, she seems skeptical that a compelling interest test should apply to all laws that infringe on religious exercise. She is happy to avoid these complex issues because the result here would be the same whether “Smith stays or goes.” But Barrett has painted a red target over Smith and religious liberty litigators will compete to shoot it down.

Alito’s Originalism

Alito’s opinion is avowedly originalist, emphasizing that he is relying on the original meaning of the Clause, which Antonin Scalia, the author of Smith and the most famous originalist in recent times, neglected. That Alito has so clearly nailed his colors to the mast of originalism is itself significant. He has not heretofore been the most avowedly originalist justice on the Court. But in a speech to the Federalist Society in November, Alito said that he believes originalism is now the parole of the law on the Court and he vowed to focus on getting the form of originalism right.

In Fulton, Alito relies on the original meaning of the text as the key to constitutional interpretation. He argues that Smith is not right because it imports a requirement of discrimination that is nowhere in the text. That text provides that “Congress shall make no law prohibiting the free exercise of [religion].” Alito considers the usage, including dictionary definitions at the time. He then argues that if we put these definitions together, the ordinary meaning of “prohibiting the free exercise of religion” was (and still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a far cry from the interpretation adopted in Smith. It certainly does not suggest a distinction between laws that are generally applicable and laws that are targeted.” Moreover, Alito correctly points out that it is anomalous to read a discrimination or equality requirement into the Free Exercise Clause, because none of the other provisions of the Bill of Rights has been understood to have such a component.

At one point Alito suggests he is simply following the ordinary meaning of the words, as Scalia often suggested in his originalist opinions. But as with Scalia, Alito’s actual practice is a little more complicated than that. He himself acknowledges that the preference for ordinary meaning is only presumptive. And the invocation of a presumption—itself a legal concept— acknowledges that the underlying language of the Constitution has a legal, not ordinary, substrate.

Moreover, after considering the dictionary definition of words, Alito invokes the legal context to support his reading of the Free Exercise Clause. For instance, he relies on clauses that protect religious exercise in state constitutions at the time of the federal constitution. He notes that these clauses frequently had the proviso that religious exercise would not be protected if it disturbed “the civil peace” or a similar formulation. Alito’s point here is that there would be little reason to include such provisos if the clause protected only against laws that discriminate against religion. 

In my view, such provisos and other similar limitations inferable from the legal context help with another problem in interpreting the Clause. It is not possible to interpret the Free Exercise Clause as a get-out-of-law-free card, whatever the law and whatever the religious practice. Satanic torture cults surely are not protected by the Constitution. And the legal context of Free Exercise shows that the meaning of the Clause—its meaning in the legal context—would not have required Courts to protect such kinds of observance from legal prohibitions.

Importantly, this legal context then helps answer the question of what the state must show to constitutionally trench on religious observance. It must demonstrate that religious observance disturbs the civil peace or something equivalently grave. It thus provides an originalist basis for something akin to the compelling interest test. Indeed, it provides guidance about how powerful that interest must be.

Unfortunately, Alito does not make this point, when he comes to talking about why the state’s interest in assuring equal treatment of prospective same-sex parents is not a sufficient basis for upholding the law. Instead, he makes an analogy to free speech doctrine, noting that giving offense has never been a justification for limiting speech. This kind of argument is fine as far it goes, but it faces two problems. It does not directly confront the argument that the law here protects equal treatment of same-sex parents, not just avoidance of offense. More importantly, it plays into the fears that Barrett seemed to express, namely that once the Court jettisons Smith, there will emerge a free for all on doctrine, with all the kinds of arguments that are made in doctrinal debates: analogies to other areas of law, invocations of consequences, and consideration of the need for bright-line rules.

Indeed, this doctrinal focus is exactly why Justice Stephen Breyer—the arch-pragmatist opponent of originalism joined the portion of the Barrett opinion that expressed concern about the complexities of replacing Smith. He was signaling that Free Exercise originalism could not decide the important issues that the Court would confront in overruling Smith.  What is most worrying about Barrett’s opinion to me is that her analysis does not obviously suggest that she thinks originalism could supply answers to these questions either.

This problem implicates originalist theory as well. Many originalists, often called the new originalists, now make a distinction between interpretation and construction. Interpretation is the process of discovering the meaning of the words. Construction is required to give them effect and it is a separate process whenever the meaning runs out. And these originalists further acknowledge that much of constitutional doctrine occurs in the construction zone. But as my frequent co-author Mike Rappaport has often emphasized to me in conversation, doctrine too can frequently be made to flow from the original meaning. Justice Alito’s opinion, while still imperfectly originalist, points to the way that free exercise doctrine can benefit from becoming more nested in the full legal context of its enactment. Without such efforts, constitutional law is less determinate than it might be and captures less of the original meaning than it could.