The Supreme Court has accepted a case, Fulton v. Philadelphia, that presents the question, among others, of whether the Supreme Court’s decision in Employment Division v. Smith, issued in 1990, should be overruled. Smith held that, when a person challenges application of a law of general applicability on the ground that it restricts the person’s free exercise of religion, he always loses. In Smith’s case, he could not defend his use of peyote, a controlled substance, because he was using it as a sacrament in his religion. This seemed to contradict multiple prior precedents, but the Smith Court distinguished prior cases on the basis that they involved more than just the free exercise of religion, but other rights as well. For instance, the Smith Court pointed out, in Yoder v. Wisconsin the parents had a constitutional right to remove their middle-school students from public schools, but they relied on both the free exercise clause and their fundamental rights to direct the upbringing and education of their children.
Smith has been criticized loud and long. Why does the free exercise clause get no weight when balanced alone against a law of general applicability? Why does it suddenly have a lot of weight when it is linked to another right?
In Fulton, Catholic Social Services, which has been a major provider of foster child placements for a century in Philadelphia, challenges the application by the city of its ordinance prohibiting discrimination against LGBT individuals when providing services. Catholic Social Services refuses to review and place children with same-sex couples. That decision implicates its free exercise of religion, as well as its rights of assembly (being able to associate with those of similar beliefs) and speech (or, more specifically, not to be forced to sponsor a specific message of the city of approval of same-sex couples). Maybe these additional rights when linked to free exercise of religion are enough to allow the Court to distinguish Smith. If not, it has been asked to overrule it.
Constitutional rights and public interests will continue to come into conflict. The NLF and others will be filing a brief in Fulton arguing that the proper way to resolve those case is not to eliminate the free exercise of religion or any other constitutional right from consideration. Instead, all the private and public rights involved must be balanced, and prior Supreme Court cases give ample examples of how that should be done. In short, the pedigree of the respective rights must be analyzed, with those of constitutional and/or fundamental provenance given more weight than newly created rights. In addition, the circumstances must be carefully considered and the state interest tailored to the facts involved, rather than considered broadly (e.g., in Yoder, it was not enough to say the state had a critical interest in the education of children; the state’s interest was, more narrowly, the public education of middle schoolers who instead would be receiving training at home). Of particular importance in deciding that the state interest should prevail is whether, despite application of the law, the individual can still act consistently with his religious beliefs.
For Catholic Social Services, the balancing is easy. It is relying on longstanding, explicit, constitutional rights, and the organization itself is providing an important public benefit. Philadelphia is enforcing a newly legislated right against sexual orientation discrimination, a right that is not even state-wide in Pennsylvania. Moreover, by enforcing the ordinance, it stops Catholic Social Services from practicing its religion by tending to needy children, to their detriment as well. There is no contention by the city that those opposite-sex couples to whom Catholic Social Services would make placements are not good families, and so the only interest seemingly being furthered by Philadelphia is to punish Catholics for holding to the tenet of their faith that same-sex marriage is unethical. This is not a weighty interest. In fact, it is corrosive to our system of government and our common life.