By Shipwreckedcrew | Jun 17, 2021 6:45 PM ET Share Tweet

Erin Schaff/The New York Times via AP, Pool

The Supreme Court today ruled in favor of Catholic Social Services (CSS) on the question of whether the City of Philadelphia could bar CSS from contracting to provide adoption services if CSS did not agree to consider same-sex couples as potential adoptive parents. The CSS — an arm of the Catholic Church — refuses to consider same-sex couples, as well as unmarried couples regardless of sexual orientation because Church doctrine is that “marriage is a sacred bond between a man and a woman.”  The City of Philadelphia bars service providers who will not sign a contract requiring the provider to not discriminate on the basis of sexual orientation.

The decision was 9-0, with the Chief Justice writing the Court’s opinion.

But there was not true unanimity on the Court over the issues raised by the case.  The Chief wrote a narrow opinion faulting the language of Philadephia’s regulation prohibiting discrimination — which was the basis upon which Philadelphia disqualified CSS from participation (it discriminated against same-sex couples) — and that technical defect in the language of the City ordinance allowed the liberal justices to join his decision.

The conservatives concurred in the outcome — making it 9-0 — but wrote separate concurring opinions that would have reached more foundational constitutional questions involving the conflict between “civil rights” as they might apply to same-sex couples, and constitutional rights set forth in the First Amendment.

The main area of dispute between the Court’s Opinion and the concurring Justices involved the failure of the Court to consider the question of overturning one of its precedents in this area — Employment Division, Department of Human Resources of Oregon v. Smith, a 1990 decision which held that laws “incidentally burdening” religion are ordinarily not subject to “strict scrutiny” review so long as they are “neutral and generally applicable.”  The Concurring Justices argued that whether to overturn Smith, or to affirm Smith as still valid law, was a question that the Court had agreed to decide when it took this case for review.

But by holding that the Philadephia ordinance violated the standard set forth in Smith, Roberts’ opinion avoided the question of whether Smith should be overturned. So Smith persists, and state and local governments can continue to pass legislation burdening religious free exercise so long as such burdens are “incidental” and the legislation is “neutral and generally applicable” to other non-religious entities.

In other words, the battle over religious freedom as a fundamental right that cannot be interfered with by any state or municipal law or regulation is merely postponed.  That is the point made by the concurring Justices who would have held that the rule laid down in Smith is contrary to the Free Exercise Clause of the First Amendment, and any state/municipal law or regulation that burden’s free exercise is invalid without regard for whether it is “neutral and generally applicable.”

Justice Roberts’ Opinion announcing the Court’s decision is 19 pages long.  The concurring opinions of Justices critical of the Court’s avoidance of the constitutional question involving Smith are 90 pages long.

Here is how Justice Alito characterizes the violence done to the Free Exercise Clause of the First Amendment by Smith:

In Smith, the Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice. Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection.

We may hope that legislators and others with rulemaking authority will not go as far as Smith allows, but the present case shows that the dangers posed by Smith are not hypothetical. The city of Philadelphia (City) has issued an ultimatum to an arm of the Catholic Church: Either engage in conduct that the Church views as contrary to the traditional Christian understanding of marriage or abandon a mission that dates back to the earliest days of the Church — providing for the care of orphaned and abandoned children.

In his concurring opinion, Justice Gorsuch drives home the point about this problem — it only encourages and entails further litigation.  He recalls the story of the Colorado baker who won his case on free exercise grounds when he declined to bake a cake for a same-sex couple wedding, only to be told by the Colorado Civil Rights Commission that he had violated the couple’s rights by asserting his right to free exercise of religion:

Consider Jack Phillips, the baker whose religious beliefs prevented him from creating custom cakes to celebrate same-sex weddings…. After being forced to litigate all the way to the Supreme Court, we ruled for him on narrow grounds similar to those the majority invokes today. Because certain government officials responsible for deciding Mr. Phillips’s compliance with a local public accommodations law uttered statements exhibiting hostility to his religion, the Court held, those officials failed to act “neutrally” under Smith. But with Smith still on the books, all that victory assured Mr. Phillips was a new round of litigation—with officials now presumably more careful about admitting their motives. See Associated Press, Lakewood Baker Jack Phillips Sued for Refusing Gender Transition Cake (Mar. 22, 2021)…  A nine-year odyssey thus barrels on. No doubt, too, those who cannot afford such endless litigation under Smith’s regime have been and will continue to be forced to forfeit religious freedom that the Constitution protects

The point being made by Gorsuch is that today’s decision does not solve CSS’s problem.  It merely invites the City of Philadephia to fix the language of its municipal ordinance that made it not “neutral and of general applicability,” and then it can go back to discriminating against CSS.  That will force CSS to once again go to Court to fight for its First Amendment right to offer adoption services in a manner consistent with its religious beliefs.

The one bright spot in the outcome is that the Court’s putative conservative majority again demonstrated its willingness to recognize free exercise rights by observant persons and elevate them above statutorily prescribed  “civil rights” of discreet groups of persons who constitute a small subset of the population as a whole.

One final note on the lineup of Justices and how they voted.  From the conservative wing of the Court, Justices Kavanaugh and Barrett did not join with the other three conservatives in calling for Smith to be overturned.  Justice Barrett wrote her own concurring opinion addressing that specific subject and expressed reluctance to overturn Smith in this case based on a lack of clear understanding about what a post-Smith legal landscape would look like.  What level of court scrutiny would apply to laws that burden religious freedom if there was no Smith?

As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering
strict scrutiny. And all nine Justices agree that the City cannot satisfy strict scrutiny. I therefore see no reason to decide in this case whether Smith should be overruled, much less what should replace it.

I predict Justice Gorsuch’s prediction will turn out to be true, and Justice Barrett’s concern about what might come after Smith should have been confronted, and not put off to another day.  The fact that her concurrence was joined by Justices Kavanaugh and Breyer MIGHT suggest that there is a four-vote block in the middle of the Court — Roberts, Breyer, Kavanaugh, and Barrett — who will seek to draw in one other Justice in order to decide controversial cases on more narrow grounds and avoid consequential constitutional confrontations.

They need to act now because when Justice Breyer does decide to retire, he will likely be replaced by a more fundamentally liberal Justice farther to the left and unwilling to be part of a middle group.