Fulton: A Victory for Religious Freedom?

For interested readers, I have an essay at First Things today on the Supreme Court’s decision last week in the Catholic adoption services case, Fulton v. City of Philadelphia. I argue that the decision represents a victory for religious freedom–though how much of a victory depends on how the Court interprets the case in the future. Here’s an excerpt:

Fulton is surely a victory for religious freedom. In fact, if the Court means what it says, the case is a major victory. True, the chief justice’s opinion avoids a definitive resolution of the conflict between LGBT rights and religious freedom—which probably explains how the chief captured the votes of the Court’s progressives, Breyer, Sotomayor, and Kagan. And true, Smith remains on the books, a result that Justice Alito, joined by Justices Thomas and Gorsuch, lamented in a separate concurrence. 

But if it is true, as Fulton suggests, that even a theoretical possibility of an exception triggers strict scrutiny, Smith does not pose much of a limitation. Moreover, if the Court is serious about strict scrutiny—that the mere possibility of an exception means that the state lacks a compelling interest in applying its rule to any particular litigant—it is hard to envision a religious claimant ever losing one of these cases in future. 

Nonetheless, it would be wise for religiously affiliated adoption agencies and other potential claimants to wait and see what develops before celebrating. The Court’s religion clause jurisprudence is notoriously unpredictable, and the justices may not stick to Fulton’s reasoning in the future. Moreover, the fact-specific nature of the ruling means that the Court can easily distinguish Fulton in subsequent litigation if it wishes to do so. 

You can read the whole essay here.