When the Supreme Court handed down Fulton v. Philadelphia last summer, the 9–0 decision came as both a bang and a whimper. Surprisingly, all nine Justices admonished the city of Philadelphia—ruling that its nondiscrimination policy was not generally applicable because it provided for exceptions, but did not make one for religious reasons for Catholic Social Services. Still, the opinion whimpered with a classic feature of unanimous rulings: It didn’t say much.

Three Justices—Alito, Thomas, and Gorsuch—argued that the opinion “might as well be written on the dissolving paper sold in magic shops.” Because the ruling only required the city to treat religious groups on par with secular ones—to satisfy Employment Division v. Smith’s requirement that laws burdening religious exercise be generally applicable if they are to avoid being subjected to strict scrutiny—Philadelphia could simply remove its secular exemptions and disqualify Catholic Social Services again.

The Alito bloc would have used Fulton to overturn Smith outright, but it needed two more votes for a majority. Although Justices Barrett and Kavanaugh criticized Smith, saying that “it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination,” they declined to join an opinion that would have overturned the standard.

Some commentators have cast Barrett and Kavanaugh’s reluctance to overrule Smith as an exercise of judicial restraint from the Court’s newest members. But the concurring opinion itself suggests that looming questions of what would replace Smith may have played a role in the choice—and exposed an ideological divide among the Court’s critics of Smith. Justice Barrett cautioned:

I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.

Alito responded in his own concurrence:

If Smith is overruled, what legal standard should be applied in this case? The answer that comes most readily to mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.

So while Justices Alito, Thomas, and Gorsuch would overrule Smith outright, replacing it with the strict scrutiny standard that preceded it, Justices Barrett and Kavanaugh would rather balance religious rights against government interests in a more “nuanced” fashion following other First Amendment jurisprudence.

More Free Exercise Clause challenges are sure to reach the Court’s docket before long. A clear majority of the Justices is unsatisfied with the Smith regime, but the lingering question remains: “what should replace Smith?”

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