This article is the final entry in a symposium previewing Fulton v City of Philadelphia.
Lisa Soronen is the executive director of the State and Local Legal Center, which filed an amicus letter in support of Philadelphia.
When the Supreme Court agreed to hear Fulton v City of Philadelphia, local governments across the country collectively groaned as they read the second question asked. How could the Supreme Court decide whether to reconsider the 1990 Employment Division v. Smith decision in such a controversial case?
Your average American in this case will hear a non-technical description of the problem (may the City of Philadelphia require Catholic Social Services to comply with the city’s non-discrimination law and place foster children with same-sex couples) and make a decision before they even know what Smith is is about. Specifically, how are the judges not so distracted from the facts of this case to give Smith thoughtful and thorough consideration?
Local governments want the court to ignore the soundbites and, in this case, focus on the mundane. If the Smith Court falls, local governments will face significant religious housing litigation in many, if not most, areas of day-to-day operations.
In Smith, two drug rehabilitation consultants argued that the first change was to protect their use of peyote during a religious ceremony in their Native American church. The Supreme Court disagreed and concluded that individuals must comply with “valid and neutral law”[s] of general applicability ”, regardless of their religious beliefs.
In Fulton, the U.S. 3rd Circuit Court of Appeals, citing Smith, stated, “The city’s non-discrimination policy is a neutral, generally applicable law, and CSS’s religious beliefs do not warrant an exception to that policy.” Therefore, if CSS wanted to continue caring for foster children, it had to agree to work with gay couples.
On legal grounds, what happens if the Supreme Court overthrows Smith? The challengers at Fulton demand that the rational basic test at Smith be replaced by a rigorous test. Under such a regime, a law incriminating religion would be unconstitutional if a local government could not demonstrate that the law was “closely tailored to an” imperative. The nickname of the rigorous test is “fatal test”.
The practical benefit of Smith for local governments is that it’s easy. Smith is a light line rule; Nobody is entitled to an exception to a valid, neutral, generally applicable law.
One need look no further than Smith’s opinion to appreciate the feasibility of his rule. In Smith, concurring and dissenting judges put Oregon law, which criminalizes the use of peyote, under scrutiny and couldn’t agree on whether or not it passed. The concurring judges concluded that Oregon had an overriding interest in regulating the drug, but called the issue “near”. The Dissent “close[d] that Oregon’s interest in enforcing its drug laws against the religious use of peyote is not compelling enough to outweigh respondents’ right to freely practice their religion. “
What would a world without Smith look like for local governments? In general, consider two simple truths: the most basic function of local government is to protect its citizens by making rules for anything and everything, and religious practice in this country is remarkably diverse. In particular, if Smith is overturned, there are likely to be three categories of free exercise claims made against local governments.
First, employment. Imagine a firefighter who refuses to put out a fire in a gay bar, a police officer who doesn’t guard an abortion clinic, or a postal worker who doesn’t deliver mail that he or she thinks is sacrilegious. While these examples aren’t as mundane as likely drug testing challenges, work schedules, or holidays, they’re not unrealistic either.
Second contract. It is estimated that $ 1 trillion of the $ 6 trillion spent annually by federal, state and local governments goes to private companies. In this case, of course, it is a private contractor. If Smith is overridden, all of these private companies will be entitled to strict scrutiny if they religiously object to neutral, generally applicable laws relevant to the government services they have agreed to provide. As the 3rd circuit pointed out, there is something “extremely unusual” about a private contractor who wants to unilaterally impose contractual terms in his agreement with a local government. This is exactly what CSS wants to do in this case.
Finally, there is everything else – the really mundane operations of local governments. In the Smith case, the court found that “religious exemptions from civil obligations of almost every imaginable kind” were sought, including “military service”, “paying taxes”, “health and safety regulations such as manslaughter and child neglect”. “Vaccination Laws”, “Traffic Laws”, “Social Laws Like Minimum Wage Laws”, “Child Labor Laws”, “Animal Torture Laws”, “Environmental Protection Laws” and “Laws Providing Equality and Opportunities for People” races. “Without Smith, any of these requirements could be questioned on religious grounds, and local governments would have to overcome tight controls to apply them to all.
While local governments may still win cases like Mayle v Chicago Park District where there is a free exercise right to take a guinea pig to a park to practice Satanism, the wind will no longer be on their backs. If Smith is overturned, local governments will spend much of the time and money they can hardly afford to defend claims like the Mayle one.
Some may argue that local governments can simply comply with requests for religious exemptions. Once a local government allows a religion to de-register from a law that applies to all, it opens itself to lawsuits from other religions that have violated the settlement clause, the freedom of practice clause, or the equal protection clause. For example, a recent complaint alleges that the largest care placement agency in South Carolina favored Protestant evangelical foster parents over Catholics and Orthodox Christians.
Aside from the practical problems that an overthrow of Smith would cause local governments, Smith promotes a value that is both intangible and vital to good governance at the local level: the idea that government officials enforce the law neutrally, not none Play favorites.
For judges less interested in political argument, the writers’ words may be more persuasive. As Judge Sandra Day O’Connor wrote in her concurring statement in McCreary County v. American Civil Liberties Union of Kentucky (2005), Framers knew, “Interfaith drawing is an endeavor that, once started, has no logical stopping point has more. ”
While the State and Local Legal Center’s Amicus Letter spends most of its time addressing the practical issues for local governments in mostly mundane cases when Smith is overridden, the letter ends by explaining how our authors’ above adage applies would:
Repealing Smith, ending the protection of generally applicable neutral laws, would jeopardize the local government’s ability to act and be viewed as a fair arbitrator. There would be “no logical stopping point” for rigorous scrutiny of the denial of exceptions to generally applicable neutral laws that require continued signing by local governments, decisions in favor of some religions, and obvious prejudice against others. Of all the problems Pandora’s Box would cause in overcoming Smith, this last one could be the worst of them all.
Lisa Soronen, Symposium: Defending Smith by Ignoring Soundbites and Considering the Everyday,
SCOTUSblog (November 2, 2020, 4:19 pm), https://www.scotusblog.com/2020/11/symposium-defending-smith-by-ignoring-soundbites-and-considering-the-mundane/