Justice Barrett Examines Religious Liberty Precedent in LGBTQ Foster Parenting Case

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Barrett taking Oath from Wikimedia Commons

Last week, the Supreme Court heard its first case addressing religious freedom and LGBTQ civil rights with Justice Amy Coney Barrett as a member of the Court. The case, Fulton v. City of Philadelphia, concerns whether Philadelphia can require organizations it partners with to accept same-sex couples as foster parents.

The city of Philadelphia partners with roughly thirty private organizations — both religious and secular — to find foster parents for children in Philadelphia’s foster care system.

In 2018, Philadelphia learned that two of its partner organizations, Catholic Social Services and Bethany Christian Services, had religiously motivated policies against placing children with same-sex couples. Philadelphia views these policies as violating Philadelphia’s Fair Practices Ordinance.

As a result, Philadelphia decided to stop sending foster care placement requests to these organizations unless they changed their policies.

In response, Catholic Social Services and several foster parents affiliated with that agency sued. They argue that Philadelphia’s response violates the U.S. Constitution’s First Amendment protections of religion and speech. Two lower federal courts ruled in Philadelphia’s favor. It is now up to the Supreme Court to decide whether the lower courts got it right.

Fulton will likely be decided on technical grounds over whether Catholic Social Services is a contractor or licensee of Philadelphia. But Justice Barrett’s questions during oral arguments are of interest in considering the future of First Amendment law.

Justice Barrett’s questions suggest she is closely examining important aspects of the Court’s religious freedom precedent. More specifically, they suggest that Justice Barrett may be willing to overturn a key piece of First Amendment precedent, Employment Division v. Smith.

In Employment Division v. Smith, decided in 1990, the Supreme Court held that Oregon was not required to create an exception to its drug laws to permit peyote use in religious rituals. The fundamental issue in Smith was how to balance religious freedom with the rule of law. Justice Antonin Scalia wrote the Court’s opinion in Smith. He recognized that without some kind of limit on the Constitution’s religious free exercise clause, laws could become meaningless.

As a result, Justice Scalia held that the Constitution’s religious free exercise clause does not allow religious adherents to violate a “neutral law of general applicability.”

A law is neutral if it does not favor or disfavor people based on their religion or lack thereof. A law is generally applicable if it applies to everyone. Using this reasoning, Oregon’s drug law would have been unconstitutional if it had targeted people of certain religions or if it were not consistently applied. But because the law did not target religion and applied to everyone, Oregon’s refusal to make an exception to its drug law for religious peyote use was deemed constitutional.

Smith has always been controversial. Many conservatives want the decision overturned. The Court’s conservative wing has the numbers to overturn Smith if they choose. But Smith has never been simply a left versus right issue. After all, Smith’s author was conservative stalwart Justice Scalia, whom Justice Barrett worked for as a law clerk.

In addition, now that Smith has been precedent for over thirty years, justices who disagree with Smith’s reasoning face the issue of stare decisis, which is the well-established legal principle advocating against overruling past decisions whenever possible. Notably, the limits of stare decisis was a central topic in Justice Barrett’s scholarly writing during her time as a law professor.

In the brief Catholic Social Service’s lawyers filed in Fulton, they argued that Smith should be overruled. Justice Barret was one of two justices to give substantial attention to this line of argument in her questions. The other was Justice Breyer who said in favor of Smith that it was “a solution to a problem that nobody could figure out how to answer.”

In questioning one of Catholic Social Service’s lawyers, Justice Barrett asked “What would you replace Smith with?” This question suggests that Justice Barrett views the arguments for overturning Smith as worth taking seriously.

Justice Barrett also made the following remarks while questioning Catholic Social Service’s lawyer:

“[Y]ou argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if you’re right about that, why should we even entertain the question whether to overrule Smith?”

These comments are important. Judges generally prefer to avoid overruling past decisions when a case can be decided for other reasons. Thus, even if Justice Barrett thinks Smith is bad law, she might not advocate overruling it in Fulton if she thinks that Catholic Social Services can win on other grounds.

Given the questions some of the other justices asked, it is unlikely that Smith would need to be overruled in order for the Court to overturn the lower court decisions and side with Catholic Social Services. Still, it seems possible that Justice Barrett may seek to overturn Smith in a future case.

After all, Justice Barrett herself previously wrote that “stare decisis must be flexible in fact, not just in theory.”

If Smith is someday overruled, this would likely increase the ability of courts to provide religious organizations with exemptions that allow them to discriminate against LGBTQ people. But as oral arguments in Fulton suggest, that may be the outcome even with Smith left in place.

Attorney and philosophy professor writing about philosophy, law, religion, politics, queerness, and books, among other things. He/him

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