Courthouse Steps Decision Webinar: Fulton v. City of Philadelphia

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome everyone to this Federalist Society virtual event. Today's event, June 21st, 2021, we're covering The Supreme Court's decision in Fulton v. City of Philadelphia that was handed down last week. I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our expert.

 

      We are pleased to be joined this afternoon by Professor Mark Rienzi. He is President of the Becket Fund for Religious Liberty, represented petitioners in this case, and he is also a Professor of Law at the Catholic University of America's Columbus School of Law.

 

      So with that short introduction and his longer bio is available on our web page, Mark -- quick note to our audience, we will be looking to you for questions towards the half-way point of the call and after, so please submit those as we go along or at that point through the chat function and we'll take them that way.

 

      So thanks very much for being with us, Mark, and I'll give the floor to you.

 

Prof. Mark Rienzi:  Great. Happy to be here and thank you all for tuning in. So we're here to talk about the Fulton v. City of Philadelphia case which the Supreme Court decided on Thursday as a 9-0 win for the religious plaintiffs in that case.

 

      I though what I'd do is just give you a little bit of background on the issue and the case and kind of how we got to the Supreme Court and then a breakdown of the justices' opinions and then a little bit of my take-aways from those opinions and what I think it means going forward, and then I'd be happy to take your questions.

 

      Let me start with background. So this is a case that concerned Catholic Social Services which is an arm of the Archdiocese of Philadelphia, the Catholic Church in Philadelphia which has been doing foster care in Philadelphia for much longer than the government has. Actually the Catholic Church was doing the equivalent of foster and adoption care more than two centuries ago in Philadelphia long before the government got involved. And it's a fight over whether the government can force religious foster care agencies to do home study certifications for same-sex couples.

 

      It won't surprise anybody to know that the Catholic Church has beliefs about sex and marriage so if either an unmarried opposite-sex couple walks in the door or, if it ever happened, a same-sex couple walks in the door, the Catholic Social Services' answer would be, "Look, we're probably not the best people to come into your home and do a study of your family life and then report our views about whether this is a good place to raise children. You'd really be better served by one of the other 28 or 29 agencies in the city."

 

      So the question in this case is really can the government say that as a requirement to doing foster care you have to be willing to certify all couples, or do the religious groups have an affirmative right under the Free Exercise Clause to provide the care consistently with their religious beliefs.

 

      I want to frame that issue and then just pan back 10 or 15 years because 10 or 15 years ago in the early 2000's lots of Catholic in particular, but just religious foster care agencies faced similar pressure to what the Catholic Social Services faced in this case. But unlike Catholic Social Services, many of them just chose to shut down in the early 2000s. So in Boston and in Illinois and in D.C., and in several other places throughout the country where the government put this kind of pressure on and said, "No. You have to approve same-sex couples equally." The religious agency said, "Well, I won't violate my religion," right? In other words, "I'm not going to go ahead and say I really do think that's a great place to put children when I don't. But, instead, I'll just close my doors." Right?

 

      And so it was an issue that forced many religious foster agencies to close and that I think 10 or 15 years ago was viewed as not winnable to the point that people didn't even really bring the lawsuits.

 

      Fast forward to 2018, Catholic Social Services in Philadelphia had been able to continue in business, hadn't faced that pressure yet. But the city of Philadelphia found out through a newspaper article that Catholic Social Services had the policies it had and if they were approached by a same-sex couple, would just refer them to one of the other agencies rather than doing the certification themselves.

 

      I always like to start our discussions of this case by pointing out something that makes me pretty hardened about the ability of people in America to live with people having different beliefs and different views and report that there never actually was a gay couple in Philadelphia that went to the Catholic Church and knocked on the door and said, "Hey, can you come into my house and do this home study and give me your opinion of my family life and whether this is a good place for children." I suspect that the gay couples in Philadelphia who were interested in fostering and adoption knew they had a disagreement with the Catholic Church and said, "Nah -- that's not the place I want to go. That's not who I want to come in and do my home study. I'll get somebody else to do it. Thanks. I don't need the Catholic Church's opinion of my family life." I always appreciate that and when I think about it, that this is a case that started with no actual real conflict. The gay couples in Philadelphia weren't banging down the Catholic Church's door saying, "I need this from you."

 

      But the City said, "You have to do it." In other words, the City said, "Unless you promise ahead of time that if that ever happens, you will provide the home study, then we are going to stop you from doing foster care in the city." And they didn't just stop the agency, but they also stopped any family, any parents, who were previously approved by the agency were cut off from receiving additional children. And the City did this at a time when there's a well-documented foster care crisis in the country in general and in Philadelphia in particular. They had put out urgent calls for hundreds more families that they needed to take care of foster kids in the system. They had lots of families through Catholic Social Services, and they just locked them all out because the City disagreed with the Catholic Church's beliefs about sex and marriage.

 

      So that all began in 2018. Catholic Social Services said to Philadelphia, "Look, we have our religious beliefs, and we can't compromise those religious beliefs, but we can take care of an awful lot of children and we've been doing it for a long time. And we think, under the law, you really ought to give us an exception." The City said, "No, we can't do that and we're locking  you out. So no more additional children will go to Catholic Social Services or any family previously approved by them."

 

      So Catholic Social Services filed suit in Philadelphia. We lost the case in the trial court and at the Third Circuit Court of Appeals. Both of those courts applied Employment Division v. Smith which is a case from 1990 decided by Justice Scalia in which essentially the Court said that, at least for many religious exercise claims, as long as the government's law is neutral and generally applicable, then only rational basis scrutiny will apply.

 

      And so the two lower courts applied their understanding of Smith, which is a very religion unfriendly understanding of Smith, but they applied their understanding of Smith to say, "Sorry. You get no special protection for your religious exercise here. Either get on board with the City's views of sex and marriage and what the lines ought to be or get locked out entirely." We filed a cert petition in which we said that Philadelphia's approach was wrong and illegal. It's wrong and illegal under Smith and, if you disagree, it's wrong and illegal and you should just change Smith because Smith is obviously an incorrect interpretation of the Free Exercise Clause.

 

      The case was argued actually the morning after the election. So we were among the very few people who came into a boarded-up Washington D.C. that morning. Came in through -- into our office into a boarded-up city. It was during COVID, so we were arguing by telephone. My colleague, Lori Windham, did the argument and did a masterful job with it.

 

      And what we saw on Thursday was the fruits of that litigation which is a 9-0 decision that Philadelphia had broken the law. Philadelphia had acted illegally over the past three years in stopping all of these families from taking in foster kids. It's an illegal action by Philadelphia that hurt a lot of real, actual human beings. A lot of real kids could have been in those homes -- those loving homes -- and weren't because Philadelphia was breaking the law.

 

      So now let me just walk through the different opinions and break down how they came out. So first -- one, it's a 9-0 decision in that all of the justices agreed on the outcome which is Philadelphia violated the law and, under the Free Exercise Clause, had to give an exemption. There were some differences as to the reasoning, but very importantly, not a single justice took up the pen to defend Philadelphia. In other words, no Kagan or Sotomayor or Breyer or anybody else dissent saying that Philadelphia action here were legal or permissible. Nobody said that. Everybody agreed that what they did was illegal. The only question was how big the win should be and what should happen with the doctrine.

 

      So the majority opinion is written by Chief Justice Roberts and it is for Roberts, Barrett, Kavanaugh, Breyer, Kagan and Sotomayor. So for those six or, differently put, is everybody except for Alito, Gorsuch and Thomas, was on that first majority opinion. And the majority opinion says, essentially, Philadelphia's actions violate the Free Exercise Clause and they do so quite clearly and, therefore, there is no need for us to go figure out whether we should reverse Employment Division v. Smith because the actions are so flagrantly illegal that Philadelphia loses even under Smith even without reversing Smith, so we don't need to go there today.

 

      And the way the Court got there is it said, "Look, even in Smith, even before Smith, if the government has a system that involves government consideration of the particular reasons for your conduct where they say, 'Well, some reasons for doing that are okay, but not the religious reasons.' That that renders the law not generally applicable." Right? And that Philadelphia had a system that allowed for individualized exemptions.

 

      And the court said, "Once you allow for that, you don't have a generally applicable law." And they also cited -- well, they didn't cite it, but they repeated some language, versions of which they had used in the COVID cases from the past year, particularly the Agudath Israel [Dioceses of Brooklyn] case and then the Tandon case in which they said, "If the government's going to have exemptions for secular conduct, they also have to have parallel exemptions for religious conduct. And if they don't, that is not a neutral and generally applicable law, and that gets you to strict scrutiny."

 

      The court also rejected the idea that foster care could be a public accommodation. And I'm sure it's not a surprise to folks on this call, but for several years now one of the things that opponents of religious liberty have tried to do is try to make everything into a public accommodation so that they can say, "Well, baking a cake is a public accommodation and certifying foster families is a public accommodation." Because they want to tap into a race analogy saying, "everything's a public accommodation. This is the equivalent of denying somebody a sandwich at a lunch counter or a ticket on the bus or the train and, therefore, the government can insist on non-discrimination norms in this context."

 

      Well, the unanimous Supreme Court rejected that idea. They said, "No. This is obviously not a public accommodation. Certifying foster families and then matching foster families with children is inherently subjective, judgment laden, detailed, individualized type of work. It is not like going and buying a cup of coffee or a ticket to the train. It is, instead, very subjective, very individualized and often very sensitive work getting into peoples' relationships and things like that. And it's just not a public accommodation." And so the Court said it's not a public accommodation and they said, "Therefore, for all these reasons, we get to strict scrutiny." Strict scrutiny, of course, requires the government to show a compelling government interest.

 

      In the Third Circuit, the Third Circuit had said, "Well, any time the government invokes non-discrimination, that will count as a compelling government interest." The Court -- the Supreme Court -- unanimously rejected that. They said, "Philadelphia does not have a compelling government interest here. They don't have a compelling government interest here that is sufficient to overcome the religious interest."

 

      The Court also said that—and this is a personal favorite line of mine—that Catholic Social Services was not attempting to impose its religious beliefs on others. And anyone who has focused on the religious liberty debates of the past decade knows that the favored phrasing of the opponents of religious liberty is always to say, "Well, the Little Sisters of the Poor" or "Hobby Lobby" or "Catholic Social Services" or whoever it is, is trying to impose their religious beliefs on others when they say, "I can't do that." The justices agreed that that is not imposing religious beliefs on anyone. That is simply Catholic Social Services having its religious beliefs about the work that it can do.

 

      The opinion also talked about how Catholic Social Services had been -- had done very good social work. And I should also mention the name of the case is Fulton v. City of Philadelphia because it's not only about the agency. It's really brought primarily by the foster moms, Sharonelle Fulton, Toni Simms-Busch, and also Celia Paul. Celia Paul passed away during the case so, unfortunately, she did not get to live to see the 9-0 win. She did get to live long enough to use her life, though, to foster more than a hundred kids and to be deemed by the City of Philadelphia a foster parent of the year not long ago. So it, of course, would have been lovely if she had been able to keep doing that work until the end of her life, but she devoted an awful lot of her life to doing that good work and, ultimately, the Supreme Court's decision vindicates her work.

 

      So that was the majority opinion and, again, it said, "We're not going to go all the way against Smith because we can resolve this case short of that, so we don't need to." There was a concurrence by Justice Amy Coney Barrett that was joined in full by Justice Kavanaugh and in all but one paragraph by Justice Breyer. And the Barrett concurrence, the paragraph that Justice Breyer did not join was kind of the most full-throated questioning of Smith that said that she did not think Smith really comported very well with the actual text of the Constitution. But the gist of the concurrence was to focus on the question of, "Well, what would come next?" And to say Smith claimed at least, I think it largely failed, by Smith claimed at least to make the doctrine easier by coming up with a one-size-fits-all rule.

 

      Should we really pick just a different one-size-fits-all rule or are we going to have to work out a lot of detailed questions if we try to replace Smith. And how do we do that? And ultimately Justice Barrett said, "There's a lot of stuff you need to figure out. And since we don't need to go there because Philadelphia's actions are clearly illegal even if we don't reverse Smith, we shouldn't go there in this case."

 

      Justice Alito wrote a 77-page masterpiece of an opinion in which he explains why Smith is a bad decision and ought to be overruled. That opinion was joined by Justices Gorsuch and Thomas and that opinion lays out the case in full detail against Employment Division v. Smith, explains why it's not a very good understanding of the original public meaning of the Free Exercise Clause, explains why it's out of step with a lot of other precedents, why there's no reliance interest to keep it and why the court really should just overturn Smith now.

 

      Justice Alito argued that there was a possibility that Philadelphia would react to the majority's opinion and just make some slight changes and make the same problems recur. We don't know if they'll do that or not. I really hope they're smart enough not to do that. We’ll get to that in a couple of minutes. But his fear was if the Court doesn't fix the doctrine, then these issues will recur. And we'll get to more on that in a couple of minutes.

 

      Justice Gorsuch also wrote a concurring opinion. He was also joined by Justice Alito and Justice Thomas, in which he took issue with a lot of the -- a lot of the arguments that were made by the majority to avoid getting to Smith. And he said, "Look, I think in these different places the majority is reaching and they really should have just gotten to Smith."

 

      So that's how the opinions lined up. Let me give you a few minutes of editorializing and then I'd be happy to take your questions about it.

 

      One -- it's a huge win. This is a religious liberty versus LGBT ranks case, or at least that's the way it was framed up is that it's more a zero-sum game of these two sides battling it out. And it was 9-0 in favor of the religious liberty claim. Not a single justice picked up a pen to say that Philadelphia was right. Not a single justice picked up a pen to defend Employment Division v. Smith. Every one of them said that Philadelphia had broken the law. Every one of them said that the Free Exercise Clause entitles Catholic Social Services to an exemption in this context.

 

      That's a very big deal. That's a very strong message to Philadelphia if Philadelphia were tempted to try to come up with some weaselly way around the decision, there's nine justices who just voted in our direction this time. They'd have to bet that we would lose five of them based on whatever change they make. That's not plausible. There's really no path for governments to want to keep religious groups out of foster care.

 

      I'll point out that the unanimity also does a couple of things beyond the law but, to the extent we're thinking about the cases in the context of ongoing public debates. If it had been a 5-4 or even a 6-3, you could have heard complaints that this was just about Trump judges or it's just about Justice Barrett getting through at the last minute or something like that.  9-0 kind of gets rid of those claims, right? It actually, it's not about Trump judges. All nine justices, to their credit, actually understand that the Free Exercise Clause requires an exemption in this context.

 

      It also, I think, made the decision relatively useless as an argument for those who wish to pack the Supreme Court. If you were hoping for some good fodder for packing the Supreme Court, this decision surely isn't it, right? If this had been 5-4, you could maybe rally people and say, "Well, let's just add two or three more justices." Right? A 9-0 decision is a pretty clear indication that we're right on this one. And you'd have to really pack the Court, right? You'd have to say, "Let me go get ten," none of whom will deviate from the company line that no justice is willing to pick up. So I think the unanimity also takes some wind out of the sails of that. Or just if you imagine the counter-factual of a narrow 5-4, it could have fed those things. It didn't do it.

 

      I actually think the majority decision is a very strong decision. I don't think it leaves a lot of wiggle room for governments to get around this type of decision. The Court said that if the government engages in particularized considerations of the reasons for their behavior, that triggers strict scrutiny. Let's just take the foster care context as a starting point but then to broaden it out. In foster care, it would be pretty impossible for a government to come up with a system that involves no discretion and involves no government looking at the reasons, right?

 

      Agencies are going to refer people sometimes to other agencies. That's happened everywhere in the foster care system for decades. And agencies sometimes are going to have to reject parents and say, "You know what? This is actually not a great fit." And agencies are going to have to make detailed judgments about whether a particular kid is a good fit in a particular family. So there's kind of no way around the facts that a contract-based foster care system is laden with judgment calls and discretion. And once you get to judgment calls and discretion that the government is saying, "Well, that would be a good enough reason to refer somebody but not someone else." But not a different reason, that wouldn't be good enough, you're going to trigger strict scrutiny.

 

      So I think the majority's decision actually closes some doors and makes it much harder for Philadelphia or any other city that wanted to, to keep the religious people out of foster care.

 

      This kind of builds on the COVID cases, again, I just mentioned the Agudath Israel [Dioceses of Brooklyn] pairing from Thanksgiving last year, and then the Tandon case about home worship. Those cases also made clear that if a government has secular exemptions, that's going to trigger strict scrutiny. And, of course, the Court here said that Philadelphia had already failed strict scrutiny, right?

 

      So if you look at those things and the way the Court talked about foster care not being a public accommodation which, again, is a system that is inherently individualized and full of judgment and, therefore, not the kind of situation that Philadelphia would be able to come up with some new special rule to go against Catholic Social Services -- and let me also say if after losing 9-0 at the Supreme Court on general applicability the way they did, Philadelphia tomorrow wanted to change its contract to get some new way to target Catholic Social Services, I'm pretty sure the justices would recognize that as intolerance of religion, which is a different way that you would get to strict scrutiny.

 

      So ultimately, the answer is Catholic Social Services gets to get back in the foster care game and that's what the Constitution requires, and no justice thought otherwise.

 

      It's certainly true, as some people have commented, that the doctrine could have gone further. I agree very much with the attack on Employment Division v. Smith set forth so well by Justice Alito and Gorsuch and Thomas in the Alito concurrence. But I think it's actually quite an advance that we're sitting here looking at a decision and looking at a Court where at least five justices have now gone on record as suggesting that they don't think Smith is the right way to interpret the Free Exercise Clause. And another two -- Breyer and Chief Justice Roberts -- may well ultimately agree with them. So I think we've actually moved the ball quite a bit down the filed in terms of overruling Smith even if they judged in this particular case that they didn't need to go all the way there.

 

      So I saw one of the questions was: "Will Smith be overruled?" I sure think so. It's pretty powerful to have that many justices expressing the view that it should be overruled and really just getting to the question of: "how do we figure out what replaces it?" I don't know if that'll mean the justices will pick something next week at the last conference of the year, or they'll wait a little bit. But, ultimately, I think the writing is on the wall that Smith is not long for this world. And if you combine -- let's go back a couple years -- we combine Masterpiece Cake Shop and Tandon in the COVID cases and Fulton, what you ultimately get is quite a significant improvement in Free Exercise Doctrine. There's a lot of ways to get to strict scrutiny.

 

      Lawyers looking at this who want to get their cases to strict scrutiny, a couple of years ago, Smith may have been a door slammed in the face of a lot of cases. Now the answer is actually there's a lot of different paths that can get you to strict scrutiny even without getting to overruling Smith. I still think Smith should be overruled. I think Smith will be overruled. But the doctrine is also a lot better and a lot stronger today than it was just a few months ago.

 

      With that, let me pause. And I see some questions are lining up.  Nick, I don't know if you're going to tee those up or if I should just open the links and read them. But I defer to you.

 

Nick Marr:  Okay. Thanks, Mark. Thanks for the very good overview

 

       Okay. So we've got a lot of questions here. First, I'm going to take moderator's pride and ask you this. We like to ask these questions:

 

1.     How did the result wind up with what you expected coming out of oral argument? And,

 

2.     What was one thing that really stood out as surprising to you?

 

Prof. Mark Rienzi:  [CROSSTALK 00:23:52] which is unanimity. We felt really good coming out of oral argument, but, again, this is a case that people thought you couldn't win not too long ago. And we knew it's a clash between LGBT rights and religious liberty or, at least -- like our view has always been you can have them both, right? Our view has always been that it's not a zero-sum game at all. But it's a case that had been pitched as a clash between religious liberty and gay rights.

 

      So we felt good. We felt like we had won. But I don't recall anyone saying that we got all nine votes. So ultimately, from our point of view, we always knew—and this is the blessing and the curse of the case—Philadelphia's behavior really was bad, and it really did violate the Constitution any which way you look at it. And so we always knew there was a chance we'd win without getting to Smith because Philadelphia's behavior really is illegal under any understanding of the Free Exercise Clause.

 

      And so we didn't quite know which way the Court would go and how they would do it. We felt like we would win, but the biggest surprise is unanimity. And, again, unanimity is something that, I think, is very important. If you think of the culture wars we have had over marriage and religion over the past decade or so, there have been an awful lot of times when the religious liberty side has felt worried about whether it would win or if you think about cases like Obergefell, and then Bostock. You have cases that are big wins for the gay rights side in which there is a little bit of non-binding language from the Court that sounds pretty good about religious liberty, but it's not quite the holding so you don't know what to make of it. To get to nine justices with the holding in favor of Catholic Social Services here I think is just really powerful. And it is really the Court following through on some of those promises from the other cases to say, "Look, we're very serious about protecting the religious people here, and we're going to keep doing it."

 

Nick Marr:  To pick up on your last comment about hostility, we have a couple of questions about Smith and, of course, we'll get to those. But the question is about implications for Masterpiece Cakeshop and non-discrimination laws and that kind of thing, how does it effect those rulings in the future, especially in the cases of when the record does not reflect a government hostility to religious motives?

 

Prof. Mark Rienzi:  Yeah, I think that's one thing that's really important about this case is there really was hostility in this case. There were some nasty things said by people at all different levels of Philadelphia government to our clients. And one narrow way the Court could have ruled would be just to pick up the mantle of hostility and say, "Well this is nasty stuff you said. You lose."

 

      I'm very happy that they didn't do that. That was available to them and they didn't do it. Instead they said the law lacks general applicability. That is something that is much harder for governments to hide, right? So if you think about a hostility-based ruling, the reaction by government could just be, "Oh well, shh. Don't say it out loud. Still do the same thing but just don't say it out loud." If you speak better, then you don't run into those problems, right?

 

      Rulings based on general applicability are much, much harder for governments to change their behavior and get around. Why? Well because most of the things we're talking abut have discretion built into them. They're administrative government processes that are made to have discretion, that are made to have exceptions, right? That have different reasons that not everyone's a public accommodation, or not everyone has to do this, or turning down a cake for reasons (a), (b), and (c) would be okay, but not for this religious reason over here.

 

      All of those things now should trigger strict scrutiny. And that's going to be very difficult for the government to survive. So the next cakebaker case, I suspect, has another significant arrow in the quiver to argue that we should get to strict scrutiny because I'd bet a lot of money that whatever laws and processes they're using against Masterpiece Cakeshop has some government discretion built in and have some exemptions and things like that built in which trigger strict scrutiny.

 

      So I think, again, if you layer the last few Free Exercise things, the COVID ones, the Masterpiece, Fulton, you layer them all together, you start to see a lot of different paths to get to strict scrutiny in a way that I think will help lots of religious liberty plaintiffs.

 

Nick Marr:  So since we have several questions about Smith, we’ll go to one interesting question: If this ruling did not overrule Smith, did it undermine or narrow the scope, and do you have any predictions about future parameters of Smith?

 

      Secondly, once you take that one, do you want to address a proposal for what should replace Smith, as you mentioned this in response to Justice Barrett's concurrence?

 

      You can take those in turn or as you see fit.

 

Prof. Mark Rienzi:  Terrific.  On Smith, I'd say what the Court did -- there was a bad interpretation of Smith, right? So the Supreme Court hasn't actually applied Smith very often in the intervening 31 years since the decision was handed down. Mostly because it was spared by doing that by statutes, like RFRA and RLUIPA, right? So good federal statutes spared the Court from having to apply Smith. Egregious behavior sometimes spared the Court from having to apply Smith, so the Lukumi and Masterpiece where the government's behavior is so bad that it doesn't even get to the neutral and generally applicable piece, so there the Court didn't have to apply it.

 

      But I think the COVID cases really forced the Court to think about Smith in operation over and over again. And between the COVID cases and Fulton, what you see is the Court adopting what I would call the better view of Smith, right? The bad view of Smith would be to say that almost everything is a neutral and generally applicable law. Almost all laws are neutral and generally applicable. And the only way you'd get one that wasn't neutral and generally applicable is if you have something like Lukumi where the government is really out to get one particular group.

 

      That's the bad understanding of Smith, but it was common in many lower courts, including the lower courts in this case. So I don't know if I'd call it a narrowing of Smith or a fixing of Smith, but the Court in Fulton gave a better interpretation, a better understanding of Smith than a lot of the lower courts had used. And so, even if nothing else happens on the doctrine -- and, again, I think more will happen -- but even if nothing else happens on the doctrine, if you go back down to the lower courts now, they will be applying Fulton and Tandon in connection with Smith and they will be taking the approach that lots of things actually aren't generally applicable laws, even if past courts used to think that they were.

 

      As to what replaces Smith, I think there's probably a range of things that end up replacing Smith. So sometimes you really will have targeting that doesn't even get you to having to do strict scrutiny. Something like Espinoza or Trinity Lutheran, for example, right? I think often times you will have things that look like Sherbert v. Verner where you get to a compelling interest test. Ultimately, I think the quest to necessarily say there is a one and only one-size-fits-all answer may kind of be part of the problem that we've had with the religion clauses over the past five decades or so, both with Lemon on the Establishment Clause side and Smith on the Free Exercise Clause side. Like the search for a one test to rule them all, I think has sometimes led courts astray and to adopt tests that aren't really grounded in the Constitution.

 

      So ultimately I envision something that has a bit more of a range to it than simply a single one-size-fits-all test. I think there will be some things that are -- like the ministerial exception, for example, that are just simply the government can't do that and you don't even have to apply strict scrutiny. And then I think there will be some things that strict scrutiny will apply to.

 

Nick Marr:  The thing that you brought up was the -- in the question that we first asked, was the nature of the non-discrimination laws, what this case had to say about it. It's clear that the Court thinks that -- or suggests that -- these laws do not automatically serve a compelling interest. So can you talk a little bit about that, and is that a significant part of the holding? Is that a big shift? How will that affect cases going forward?

 

Prof. Mark Rienzi:  Well, it is a significant part of the holding and, in some ways, it's free exercise law catching up a little bit to free speech law. So in free speech law, to take a case from a few decades ago, the Hurley case about the St. Patrick's Day parade in Boston, that was a place where the gay and lesbian Irish group wanted to march in the parade and the people who ran the parade said, "No." And the government said, "Well, we have a non-discrimination law and we're going to say your parade's a public accommodation and we can impose our non-discrimination law on you." And the Court pretty emphatically -- I think 8-0, maybe it was 8-1 -- but either 8-0 or 8-1 said, "No, actually," like a non-discrimination norm, there can't let the government control the content of your parade, the function of the content to your speech.

 

      Well, I think the Court here is saying the same thing, which is really important. It's not the first time they have done it, right? In Hosanna-Tabor, we were dealing with the Americans with Disabilities Act. In Our Lady of Guadalupe, we were dealing with the Americans with Disabilities Act and the Age Discrimination in Employment Act. Here we're dealing with the government's claim of non-discrimination law. In all of them, the government's claim is, "Well, non-discrimination -- that's a really important interest." And I don't think anyone disagrees that it's an important interest, but what the Court says is it's not automatically a compelling interest and that instead, the way to think about the compelling interest test is not in the abstract is non-discrimination important? Yes, it is. But guess what? Religious liberty is also important. So that doesn't end the analysis.

 

      Instead, the Court says the analysis you have to do is you have to look at does the government have a compelling interest in denying a religious exemption to that group, right? And when the Court zeroed in that way, all nine justices said, "No. There is no compelling interest in kicking Catholic Social Services out of this field. In fact, you actually get more foster families certified and more kids in homes if you allowed them in rather than kept them out."

 

      Again, that's the -- deep down, at the end of the day, that's the awful shame of the case which is that for three years Philadelphia was breaking the law and Catholic Social Services had good available beds and loving families that could take kids and they weren't allowed to do it even when the City needed them. Which means there were real kids in tight spots who could have gone to those homes who didn't. And so I think the Court recognizing that the government does not have a compelling interest in using its non-discrimination norm to kick out religious people and religious foster families, I think that's important, and I think that'll have impact elsewhere, too.

 

Nick Marr:  Keeping on the subject, Justice Gorsuch in his concurrence talks about the -- how he claims that the Court changes the conversation about public accommodations law, points the Court's interpretation to a different public accommodations law, number one, an issue in the city—so it's the Commonwealth of Pennsylvania statute—and says, "Well, the foster agency doesn't fall within the terms of this public accommodation law." And so, pursuant to one of the questions we got from our audience, John Sheller (sp) says, "Is Fulton so narrow that it really does not control any other states?" Can you talk about the interplay here and what was going on with the statute and what is Justice Gorsuch talking about and how broadly will this apply?

 

Prof. Mark Rienzi:  Yeah. So between the justices there is some sparring about whether they're looking at the same public accommodation statute and whether foster care really is a public accommodation and whether that's a good enough reason to rule the way they did. Ultimately, six justices thought foster care is not a public accommodation. And so that's the holding on that point.

 

      And I think that's a really important holding, right? That holding will apply elsewhere -- foster care is not a public accommodation. And that's important, right? So if you imagine trying to apply this to some place like Boston or D.C. or some other place where religious agencies have gotten out of the foster care business, well, in those places, too, foster care is going to have all the same attributes that the Supreme Court just said make it unsuitable for a public accommodation designation. It's individualized, it involves judgment calls, and so forth. Those things aren't going to change, right? So those things will be the same and the foster care systems in all these places will necessarily have government discretion built in, right? If the government's ever going to say, "You can't turn away a family for reason 'x', but you can for reasons 'y' or 'z'." Right? Once they say that, any place in the country, that triggers strict scrutiny.

 

      So I don't think there's a foster care system in the country that can avoid the reach of Fulton. Because any foster care system is, by definition, very individualized, very full of discretion. If the government wants to say, "Well, you are not allowed to analyze couples for reasons 'x' or 'y' but, of course, we still need you to analyze them for these other reasons," once they say that, under Fulton, they face strict scrutiny, and Fulton already says that they lose strict scrutiny.

 

      So I think it's actually a very broadly applicable ruling, and I would expect in any other jurisdiction that somebody needs to file a lawsuit, if they even need to, they would win. And, again, it had nine justices. You could lose four and you would still win the next case. The message to governments that want to play games should be pretty clear. You're going to lose.

 

      Now I don't think Philadelphia will be that vindictive either toward the kids in the system or to Catholic Social Services. I don't think they'd be that vindictive or that foolhardy, but ultimately, good religious liberty laws is often made on the backs of stubborn governments. So I hope Philadelphia doesn't, but if they do or if some other government is foolish enough to say, "Well, let me see if I can sneak by that 9-0 opinion in some way," I think it's pretty clear what's going to happen. They're going to end up making more good religious liberty law. It's not like they're going to suddenly tweak it a little bit and we're going to lose five votes who are with us that are suddenly going to go the other way. That's not really plausible. So I hope they don't, for the sake of the kids, but if they do, they're really just throwing a fat ditch over the plate to make more good religious liberty law.

 

Nick Marr:  Switching gears a little bit, we have a question from Professor Francis Beckwith. It says, "Mark, nice presentation. Pre-Smith, post-Mueller cases, Reed and Northwest [Highway] were cases in which the Court seemed to be using intermediate scrutiny even though it claimed it was using strict scrutiny. Do you think that's a possible route for generally applicably neutral laws that do not directly target religious beliefs or activities?

 

Prof. Mark Rienzi:  I don't think so, or at least I don't think those cases are good models for how the Court should do it. I mean, I think, the clause says free exercise of religion, right? Can't prohibit the free exercise of religion. I don't think sitting there and thinking, well, how did the government prohibit it, and did they prohibit it with other stuff or alone? I mean, ultimately, and to go back to Smith himself, right? If you can't smoke the peyote, you can't smoke the peyote and your religious exercise has been prohibited whether they prohibited a bunch of other people from doing it at the same time or not.

 

      So I don't think those are particularly good paths to go down and say, "Well, if they prohibited it in this way, we're going to give it a little lighter than in that way." So my instinct is no. But, as Justice Barrett said, that's one of the things that remains an open question.

 

Nick Marr:  Very good. Professor, if you have a follow-up, feel free to submit via the chat. We have another question, shifting back to the public accommodation point for a bit. We have a question about comparable services. Would the holding apply towards homeless shelters or, if not, in what ways might this decision inform cases that might involve those kinds of other but similarly oriented institutions?

 

Prof. Mark Rienzi:  I think there's a very good chance it would, right? So, if you assume -- and I don't have a homeless shelter client right now, so I don't know all of the facts, someone else may -- but I would assume that homeless shelters do have some discretion to say some people can't come to the shelter. And so, I'm anticipating or assuming that the question is, say it's like a women's homeless shelter and then there's a transgender issue that comes up, right? Well if the shelter does have discretion to say to some people, "Sorry, you can't come to this place tonight," but the government is going to look at them and say, "Well, but for this one religious reason, that's not a good enough reason." If that's the set up, and I suspect that's a setup in most places, then the answer is, "Yes. Fulton has a lot to say about that." Because Fulton says you get to strict scrutiny. And Fulton says the government's got to prove that they can't give you a religious exemption. And I think that's pretty hard for the government to prove.

 

      And I think one thing you'll find is in most of these situations we've got government contracts and they're doing social services and they are individualized social services type things that involve some judgment and some discretion. It's going to be very hard to get rid of discretion. It's going to be very hard to get rid of exceptions, and to have a truly generally applicable rule that avoids strict scrutiny.

 

      I think the reality is most of the time when these things come up the government's laws aren't generally applicable. They aren't big on-size-fits-all laws. They allow for some discretion. And if you allow for that but then you say, "But the religious reasons will get you punished," that's going to trigger strict scrutiny. 9

 

      So I expect Fulton to have a lot of play in cases like that and to make things quite a bit better for religious plaintiffs in those cases.

 

Nick Marr:  One other question is shifting to the facts of the case. You can take this or punt. Philadelphia's additional act of not just denying CSS a chance to approve families, but retroactively penalizing foster parents for going through CSS. Is that part of the record? How does that figure in? What's going on there? And is that relevant to the decision at all in future cases?

 

Prof. Mark Rienzi:  So it is part of the record, right? So as far as the record that the families that had been previously approved by Catholic Social Services were cut off. They would say, "No new children can go to those homes." It's like Catholic Church has asbestos, right? Like, you're a little too close to that thing, we got to keep you over there.

 

      So it is part of the record. It didn't particularly figure into the decision. In other words, it's a hundred-something pages, maybe I missed it, but I don't think there was at least extended discussion of that fact. I think, it does show how kind of over the top and unthinking sometimes the response to religious claims can be. There was certainly no need to do that to those families and no need to do that to those children for Philadelphia to send this message. But they kind of had a "take no prisoners" attitude.

 

      But, again, I think the 9-0 ruling the other way sends an awfully clear message. If you're a bureaucrat in Philadelphia or anyplace else thinking about doing this again, 9-0. If your lawyers are good, they're going to tell you, "Look. You're going to lose if you keep doing this to people. You will just lose cases and build up strong religious liberty law and run up fees that you'll have to pay, and there's no winning here. So stop doing it."  I hope that's the message they all take.

 

Nick Marr:  I'll shift, again, back to Smith a little bit for any people involved in the more academic the debate over Smith, Justice Barrett mentions kind of the three main parts: the historical record, the test and the structure. She says to her the historical record is somewhat inconclusive. The text and the structure, she thinks, argue against Smith. Can you kind of just address briefly those three points and then say, maybe, in response to bringing that up, what about the short record? Is she right? Is she wrong? And then the text and structure, why or why not do they argue against Smith?

 

Prof. Mark Rienzi:  Sure. It would actually end up being a much longer call if I do much of a response to that. Let me just say, I subscribe to the Michael McConnell view on the history. I think Michael McConnell's origins article in the Harvard Law Review gets it right and lays out the history very well.

 

      But there is a serious historical debate among originalists about how well the history shows support for constitutionally mandated religious exemptions. Some scholars like Stephanie Barclay out of Notre Dame, and others have made convincing arguments about why you may not see it in the historical record, right? Because for the most part, (1) the Free Exercise Clause didn't apply to the state and local governments until after the Civil War, and the national government wasn't really running into these types of problems very often in the first 80 years of the country. It was a much smaller national government than what we have now. And most of the big issues actually were taken care of by statutes. So there are some reasons why you may not see those cases.

 

      On the texts and the structure, I think Barrett's exactly right, and I don't think it's all that close a call. On the texts and the structure it says, "No laws prohibiting the free exercise of religion." Again, Mr. Smith, whatever the providence of the law that barred him from smoking peyote during his religious ceremony, his free exercise of religion was prohibited by that law. And this is something that goes back to Justice O'Connor's point in Smith and in others who have made it elsewhere. But it doesn't much matter if the government has outlawed your religious exercise if they have also outlawed some other people from doing the same thing.

 

      Ultimately, your religious exercise was still prohibited. And so I think Justice Barrett and Kavanaugh are exactly right on that point as is, of course, Justices Alito, Gorsuch and Thomas in the other opinion. And again, to me, that's what just says the writing is on the wall that we will eventually see Smith overruled. It's now a question of when and which vehicles. But when you have five justices coming out and saying that as strongly as they did and again, Justice Breyer at least having some interest in it, because he joined the rest of the Barrett concurrence. And yeah, I suspect the Chief Justice is at least open to --

 

Nick Marr:  Sorry for that, Mark. I might have dropped off there.

 

Prof. Mark Rienzi:  Yeah. For a second I disappeared but then came right back on, so…

 

Nick Marr:  Sorry about that. Anyway, okay, so for our audience we have about 12 minutes left. Maybe we'll finish a bit early. But submit your questions if you have them. We have taken all of them so far. We just got a new one about, again about the interplay between non-discrimination requirements and free exercise rights. Just as the question says, "Can you explain a little more, maybe elaborate?" One interesting way that you might get to it is -- and you might not want to deal with this, but the -- let's say that the claim in Fulton was not religious, but it still was that -- they have this belief in marriage. Does this ruling matter for them? What about that?

 

Prof. Mark Rienzi:  I mean I think, the short answer to your last question is: No. This ruling wouldn't matter. If somebody had a non-religious objection, this ruling wouldn't do them any good because this ruling is only under the Free Exercise of Religion Clause. And we have a lot of places in the law where we do protect secular conscience. So we protect that, like for people in the military, for example, who have a secular but deeply held belief that they shouldn't participate in killing. We do it in the military context. We have people who are capital punishment, right? People who are corrections workers. It doesn't have to be a religious objection to get out of working on the execution or being on a capital jury. Abortion statutes and euthanasia statutes, too.

 

      So we have a lot of places where we do protect secular conscience. But the Free Exercise Clause is not one of them. The Free Exercise Clause is really directly about religion. So ultimately, I don't think this would help somebody who's got a non-religious view on the matter.

 

      And just on the overall relationship between non-discrimination laws and religious liberty, again, if you put this together with an old speech case like Hurley and then more recent cases like Hosanna-Tabor and Our Lady of Guadalupe, what you see is that non-discrimination, while important, is generally not going to be sufficient to trump constitutional rights. Or, at least, the government will have an uphill claim to explain to somebody why a non-discrimination statute ought to trump a constitutional right.

 

      Maybe there'll be some circumstances where the government really can claim that there is a compelling interest and it's narrowly tailored, and they need to force somebody. Like the Bob Jones case, maybe an example of where they were able to do that, but that's going to be rare. Most of the cases, the answer is going to be, "Look, people are allowed to have religiously different beliefs about sex and marriage" for example. They've had religious beliefs about that for millennia. They are allowed to have religiously different beliefs about those things and the government can't say in the name of non-discrimination that it's going to come in and it's going to penalize them for it.

 

      And so getting nine justices on this side of this case is, again, I think it's very, very powerful. You could have imagined 5-4 or 6-3 type of decisions that would leave this as like the latest hot button simmering culture war issue. And the unanimity essentially takes all of the heat out of that, right? Like there is no one picking up a pen writing a single sentence saying that that's right or that Philadelphia was right to do this. Instead, you have all nine justices saying in unison, this violates the Free Exercise Clause. I think that's really an enormous advance for the law and it doesn't get every last doctrinal thing that I think needs to be fixed in the Free Exercise Clause, but it advances and improves things quite a bit.

 

Nick Marr:  So we've gotten two more questions in the meantime. One, about a practical matter, so this question is about the laws which, through which government funds syndication. Example, student loans paying for student housing. This is not a relationship between not funding and university or higher educational views on, say, sexual orientation, in this case or gender identity. Does this case bear on that kind of conflict that might be arising? If so, how? If not, why not?

 

Prof. Mark Rienzi:  Yeah. So, like, I think it does, but it just, it really just depends in any given case, what is the government trying to enforce. So if the government is trying to say, "You have to accept every student who comes to you." Right? Or, "It is not permissible for you to reject a student who won't sign on to your religious code of conduct about no sex outside of traditional marriage," or something like that. If the government were to try, and, to date, they haven't tried, but if they were to try to say, "Well, you get student loans to your institution -- the kids are allowed to use their student loans at your college, therefore you're not allowed to have your religious code of conduct anymore." Yeah, I think Fulton would be awfully helpful. Because you'd then say, "Well, does the government allow some reasons for turning students away and not others?" And the answer is, "Of course, they do." And then if the government tries to say, "But the religious reason is not permissible." Then the answer is, "Well, okay, government. Now you've got to pass strict scrutiny. And you've got to explain why you have a compelling government interest in not allowing diverse religious institutions to have places where people organize around a particular religious belief and a particular way of living life and thinking about life." And I think the government is always going to lose that test in that contest because I don't think it's a particularly close call. The government doesn't have a compelling interest in forcing religious colleges in that kind of way.

 

       So if those cases arise, yeah, I think Fulton would be very helpful because I think it would be very unlikely that the government would be able to prove that its law is neutral and generally applicable after Fulton.

 

Nick Marr:  Okay. The last question we've got is a question about Philip Hamburger's understanding of exclusion. This question poses it as, "What do you see as the deficiencies in this?" I suppose he's talking about exclusion from the political process. "What do you see as the deficiencies of this?" But maybe what do you see about the pros of this? Could you briefly unpack it for the audience and give your views. Maybe if it's relevant. Maybe if it's not.

 

Prof.  Mark Rienzi:  Is this in the chat box or in the Q and A?

 

Nick Marr:  This is in the chat box.

 

Prof. Rienzi:  Great.  Just give me 10 seconds to read it so that I have a better shot.

 

      Okay, so I'm, not positive what the question is going for. So I think it's true that the Northwest Ordinance says that. I have read that quote before. I'll say this. Phillip Hamburger is a brilliant scholar who I respect a great deal and consider a friend, and he's on the opposite side of Michael McConnell who, I think, I subscribe to the McConnell view on this particular issue.

 

      But let me note that Philip, although he's one of the best, if not the best, academic defender of the Smith rule, Phillip Hamburger filed a brief on our side of this case. Philip Hamburger said that Catholic Social Services should win because the administrative process is different from the legislative process. And in the administrative process, Phillip argues that religious people and religious ideas tend to get short shrift and that, where the government is not enacting in a legislative neutral generally applicable law but, instead, is just using administrative or executive discretion to impose its will when they're acting, that that can be covered by Smith's rule.

 

      So ultimately, I think that's where, if you look at the recent cases, administrative actions like that is where an awful lot of the conflicts have come from. So even Phillip who, otherwise, I think, does believe Smith rightly decided and consistent with the original understanding of the Free Exercise Clause. But Phillip filed a brief supporting our side in this case saying that Catholic Social Services should win because we're dealing with administrative power which, frankly, is where -- you know, think about all the big or most of the big religious liberty cases in the past decade -- over and over again, it's actually administrative power that's causing the problem. And at that stage, Phillips's actually on our side of things.

 

Nick Marr:  Very well. I think that brings our program to a close here, seeing no other questions. Mark, I'll give you a chance for any closing remarks you want to offer and then we'll close it out this afternoon.

 

Prof. Mark Rienzi:  Yeah. So just briefly, again, I think the unanimity is the headline. That's the thing that I don't think anybody expected and on a culture war issue like this, I think getting all nine justices to agree is a big thing. I think not having a dissent that the other side could rally around and say, "We agree with justice so-and-so who says Philadelphia is right." I think not having that is actually a big deal. I think it's a strong message to governments around the country. They're going to lose if they try to do these things, and they're going to lose pretty big. And we have a lot of cushion now. There's a lot of votes we could lose, and we'd still win the case.

 

      So I think it's an important decision. I think it closes doors. I don't think there's a lot of places where governments can wriggle away. And I think it puts the writing on the wall that Smith is not long for this world because you've got a lot of justices on record and a very powerful Justice Alito opinion explaining why Smith is wrong. So I think it's quite a big advance for religious liberty, and it sets the stage for Smith's eventual overturning sometime soon.

 

Nick Marr:  Great. Well, on behalf of The Federalist Society, Professor Rienzi, I want to thank you for the benefit of your valuable time and expertise this afternoon in covering the case and taking all these questions. So thank you very much to our audience for calling in  your great questions. As a reminder, we welcome your feedback by e-mail at [email protected]. Also check your e-mails and our web site for announcements about upcoming Zoom events like this one especially covering the end of term here. We've got three cases that came down today and more to come out this week.

 

      So, until next time, thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.