The Record: Did the court’s ruling surprise you? What do you think of the justices’ reasoning?

I was surprised by a 9–0 lineup of the court, at least with respect to Chief Justice Roberts’s judgment. A unanimous ruling is pretty unprecedented in cases that have involved religious liberty and gay rights.

With the replacement of one liberal justice, Ginsburg, and a moderate, Kennedy, author of the court’s landmark “gay rights” cases, with two conservative justices, Barrett and Kavanaugh, there is no longer a five person liberal majority to rule in favor of LGBTQIA+ rights in these cases. It’s very interesting how narrowly Roberts wrote this opinion and how not only Justice Kagan and Justice Breyer, but also Justice Sotomayor, take a pragmatic approach, rather than dissenting.

My speculation is that without any prospect of a five-person majority ruling for the city, these three liberals probably thought the better approach was to avoid overruling Smith. And Roberts perhaps is trying to appear nonpartisan or consensus-building. The liberals join his narrow opinion, but three of the conservatives join only the judgment and Justice Alito and Justice Gorsuch both offer concurring opinions (joined by Justice Thomas).

The Record: Did anything in the rulings or the justices’ votes stand out to you?

One surprising development is that Justice Barrett, in addition to joining the Chief Justice’s opinion, also writes that we don’t need to strike down Smith today and raises some concerns about what kind of test would replace Smith. Perhaps because she’s a protege of Scalia, she’s reluctant to strike down a precedent from one of her inspirational figures. What’s also interesting is that Justice Breyer, a liberal, joins most of her opinion; this is definitely strange bedfellows. And Kavanaugh joins as well, instead of joining his other conservative colleagues urging the court to strike down Smith. Thus, only three justices—Alito, Gorsuch, and Thomas—openly declare that the court should now strike down Smith.

Roberts resolves the case without overruling Smith. He says there is no need to because the case “falls outside Smith.” He focuses on the fact that a clause in the city of Philadelphia’s contract, which states that government contractors like CSS shall not reject a prospective foster parent or child based on “sexual orientation,” also allows for an exception granted in the “sole discretion” of the Commissioner. Citing Smith and other First Amendment cases, Roberts reasons that the contract is not “generally applicable” and, for that reason, the city cannot refuse to allow an exemption to CSS without a “compelling reason.” Roberts also avoids deciding whether the city treated CSS’ religion with “hostility,” as CSS had argued.

What’s important for the future protection of LGBTQIA+ persons against discrimination is that Roberts quotes Justice Kennedy from the Masterpiece Cakeshop v. Colorado Civil Rights case: “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” He quotes this language in admitting that the city’s interest in the “equal treatment of prospective foster parents and foster children” is “weighty.” However, he then concludes that: “On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise,” because the contract allows exceptions and the city offered “no compelling reason” for denying CSS an exception. Further, Roberts stresses pluralism: the city contracts with many other foster care agencies that will certify gay couples, CSS is willing to refer gay couples to them, and so as long as those couples can get service they don’t have to get it from the CSS. 

For constitutional law cases, the narrative is often very important. Justice Kennedy’s opinion in Obergefell v. Hodges, for example, began with poignant portraits of the impact of the denial of access to civil marriage on the gay and lesbian couples and gay widower before the court. Roberts begins with the more than two centuries of work by the Catholic Church serving needy children in Philadelphia. Philadelphia itself, Roberts notes, calls CSS “a point of light” in the city’s foster care system. So the poignant party in Roberts’s narrative is CSS, which has a long tradition of providing help on which the government depends, which is how the lawyers for CSS presented their case. Also, another plaintiff, Sharonell Fulton, is a woman who had fostered many children and has stated that her faith is her motivation for doing so. 

One part of the opinion that’s not so narrow—and we don’t know yet what the future implications will be—is where Chief Justice Roberts says that providing foster care does not fit within the public accommodations law. In Masterpiece Cakeshop, a bakery was deemed a public accommodation, or something open to the public that provides goods and services. However, Roberts concludes that foster care provision is not a public accommodation, because of the selection and screening process. This may be a matter of some concern in states that have broad public accommodations laws that protect against discrimination on the basis of sexual orientation and gender identity, along with more traditional categories like race, sex, religion, and national origin.

The Record: Historically and legally, how big a deal is this ruling?

Because Chief Justice Roberts keeps the ruling narrow in several ways, its impact is a little hard to determine because it doesn’t exactly resolve all future conflicts. People who want the court to strike down Smith probably are going to continue to try to bring a case to the court as a vehicle for doing so. 

One unknown is how the context of religious liberty and the pandemic may shape future cases. There have been a number of First Amendment challenges brought against pandemic-related restrictions issued by state governors. The Supreme Court has issued a number of rulings that are skeptical of restrictions placed on religious activities, in comparison to secular activities.

For example, if a retail store is open under a pandemic restriction, the court has held it comparable to prayer meetings in a private home. So in these pandemic cases where the court has had to compare treatment of secular and religious activities, it seems to be extremely generous to religious activity.

I think one important issue that Chief Justice Roberts’s opinion in Fulton did not address are limits on religious exemptions. At the oral argument, several justices ask hypotheticals like, “What if a religiously motivated social service provider didn’t want to certify as foster parents an interracial couple?” The justices were trying to determine what line to draw as to when the government has to let contractors follow their religious beliefs and when it can decline, consistent with religious liberty protected under the First Amendment.

For example, is race the only area in which the government’s interest in prohibiting discrimination is so compelling that even if a service provider has religious beliefs against interracial marriage, government could readily deny an exemption? Or, as the city argued, is prohibiting sex discrimination and sexual orientation discrimination compelling as well? So the question is, what’s the full scope of religious liberty? If you’re contracting with a government, and you’re motivated to do this work because of your faith, and you want to deliver services that are consistent with your faith, what if a bunch of situations seem to be in conflict with your faith? That’s the thing the court really doesn’t address.

It’s interesting because in Justice Alito’s concurrence, he mentions at the very end, “Suppressing speech—or religious practice—simply because it expresses an idea that some find hurtful is a zero-sum game. While CSS’ ideas about marriage are likely to be objectionable to same-sex couples, lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.” Alito goes on to say that people who have traditional beliefs about marriage are decent and honorable and shouldn’t be equated with racists. So he keeps the rhetoric about racial bigotry percolating.

In a public speech to the Federalist Society, Alito said that people with traditional beliefs about marriage are now called bigots. And this rhetoric of bigotry is something I’ve written a lot about. What’s interesting is Alito sees religious liberty as a broad protection, but much of the language he quotes from historical texts is about freedom of worship. So, you have to make this move that worship implies freedom to deliver public services under a governmental contract and not be bound by nondiscrimination laws. Therefore, CSS’ refusal to certify couples, because of a religious belief, is broadly protected under this umbrella of religious free exercise.

The Record: How is the ruling likely to affect government-contracted agencies?

That’s an important question, because one thing the concurring opinions have predicted is that because the court issues such a narrow ruling, Philadelphia will just redraft its contract and eliminate the exemption, or cities will pass new ordinances that specifically include foster care.

The concurring opinions by Alito and Gorsuch indicate that they are disappointed that the ruling leaves pathways for governmental officials to tighten up exemptions and avoid these problems. 

But in states that don’t have nondiscrimination laws that reach sexual orientation or gender identity, this isn’t an issue, because in those states religious social services agencies that provide foster care are not subject to these rules about sexual orientation discrimination. In fact, some states also have laws that specifically give exemptions already for religious beliefs. 

The main effect that the opinion could lead to is that some blue states or cities could change their laws and policies to try to be in compliance with what the Supreme Court says: to avoid the law being deemed not “generally applicable.” Of course, even if your law is generally applicable, you could still have religious entities challenging the ordinances asserting that such laws must provide exemptions. 

If you’re Catholic Social Services, the good news is you can continue to provide foster care services, and you don’t have to lose your contract. That’s the immediate effect and what happens next remains to be seen. As long as the court is as conservative as it is, it’s going to be fairly protective of religious liberty even as it accepts that the legal landscape now includes recognition and protection of the dignity and equal status of LGBTQIA+ persons with respect to marriage and public accommodations laws. The question is, what’s the next case?