The U.S. Supreme Court’s late-night Friday order slapping down most of California’s pandemic restrictions on religious services continued a recent and strong trend among conservative justices, in particular, in favor of the Constitution’s free exercise of religion. But the court’s most complex religion clause challenge could be decided any day now along with the fate of a key precedent by the late Justice Antonin Scalia.
The trend was most evident last year in three decisions:
- In a 7-2 decision (Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting), the majority expanded exemptions for employers citing religious or moral objections from a legal obligation to provide contraceptive health insurance for their employees.
- In a second 7-2 decision (Justices Ginsburg and Sotomayor again dissenting), the court strengthened the “ministerial exception” for religious employers from federal job discrimination laws.
- And in a 5-4 ruling, the conservative majority said states that aid private schools must include religious ones.
The free exercise clause is one of two religion clauses in the First Amendment. It states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
With the death of Justice Ginsburg, Justice Sotomayor appears to be the only justice on the court who believes in a high wall between church and state when religious organizations seek funding or other accommodations from the government, such as exemptions from federal health insurance mandates or state anti-discrimination laws or participation in state grant programs.
In 1990, in the case Employment Division v. Smith, Justice Scalia led the court in what many considered a dramatic change in the court’s approach to the free exercise clause. Before 1990 when government action burdened the exercise of religion, the government had to show a compelling interest for its action and that it used the least restrictive way of achieving its goal. But Justice Scalia, in a 6-3 opinion, said the court’s decisions “have consistently held that the right of free exercise is not violated by an obligation to comply with a “valid and neutral law of general applicability.”
Justice Scalia gave as an example the court’s decision in United States v. Lee. The “neutral, generally applicable” law was the requirement to pay social security taxes. The court rejected free exercise arguments by an Amish employer who sought an exemption from collection and payment of the taxes because the Amish faith prohibited participation in government programs. “The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief,” he wrote.
The only decisions in which the court held that the First Amendment barred application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, he explained, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press. He gave as an example the court’s decision invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school.
Justice Scalia’s decision in Smith created a furor among many religious organizations who viewed it as reducing protection for the free exercise of religion, and it has been a target for reversal ever since. The ruling is a significant issue in the case now awaiting decision by the Supreme Court.
In Fulton v. City of Philadelphia, Catholic Social Services is challenging on free exercise grounds the city’s anti-discrimination requirement in its contracts with foster children placement agencies. Catholic Social Services will not certify same-sex couples as foster parents. The agency argues the “compelling interest” test should apply to the city’s rule and the Smith decision should be overruled. The city’s non-discrimination rule, contends the agency, is not a neutral or generally application because it includes exceptions.
The city disputes the agency’s characterization of its rule and warns that overruling Smith would create an unmanageable series of demands for exemptions. In recent years, there have been a number of legal challenges by bakers, florists, photographers, and others seeking exemptions for religious reasons from state and local anti-discrimination laws.
The arguments didn’t reveal which way the justices might go on the Smith question. Justice Amy Coney Barrett asked the agency’s lawyer a number of questions about Smith and that lawyer said the agency could win even if Smith were applied. So why consider overruling it, Barrett asked?
The Smith decision also was on Barrett’s mind in the Friday night order on California’s Covid-19 restrictions on religious services. The court, with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting, struck down the state’s prohibition on indoor religious services but allowed a 25 percent capacity limit, and left in place a ban on singing and chanting for now.
Justice Barrett, in her first written opinion since joining the court, said she agreed with Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito Jr., who stated that all limits should be lifted, but she had one exception—the ban on singing. Justice Brett Kavanaugh joined her opinion.
“As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review),” she wrote. “Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue.”
The court has had a number of opportunities to revisit or overturn the Smith decision in recent years. Just two years ago, four justices indicated interest in reconsidering it: Justices Thomas, Alito, Gorsuch, and Kavanaugh. Whether the Philadelphia decision will resolve the Smith controversy is difficult to predict.
During the arguments in the Philadelphia case, Justice Breyer laid out the court’s Smith conundrum in an exchange with the lawyer on the city’s side. The justice said:
“I’ve always thought that Smith is a problem or a solution to a problem that nobody could figure out how to answer it. If your opponents win, it’s pretty hard to see how all kinds of government programs can exist with every religion making exceptions every which way for all kind of reasons, sincerely, too.”
“If you win, it’s pretty hard to see how, for example, a religious group that wants to meet on Sunday, and the only place to hold services, there is a no-parking sign, and they can’t do it. I mean, they can’t even hold religious services. And -- and we could think of lots of examples, like abortion and so forth. And that, I think, is what led Justice Scalia to that more absolute rule. He couldn’t figure out another one.”
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
