Fulton v. City of Philadelphia (2020)

1. Many have religions and rituals that to someone from Mars might seem peculiar or, in some cases, offensive. To what extent can society regulate those practices? May it do so precisely because it dislikes the religion? May it do so because, while neutral on other precepts and practices of the religion, dislikes a particular practice? May it do so if it believes the general interests of society outweigh the importance the religion places on the practice? This is essentially the question raised in Fulton v. City of Philadelphia and the many prior cases it describes. To simplify matters, there are roughly four non-exclusive standards floating around that I will summarize and name here.

a) The Sherbert test. Regulations burdening the free exercise religion are subject to strict scrutiny. Government must show a compelling interest in applying the law to the particular religious activity. And Government must show that application of the particularly law is narrowly tailored to accomplish that compelling interest. RFRA readopts the Sherbert test.

b) The Smith test. Regulations that have the incidental effect of burdening religious exercise (but do not have that as their object) do not violate the first amendment so long as they are neutral and generally applicable. Strict scrutiny does NOT apply to neutral and generally applicable laws.

c) The Lukumi clarification. Sherbert strict scrutiny and not the Smith safe harbor applies where the "generally applicable" law is consciously constructed as a proxy for prohibition of particular religious conduct, i.e. a law that precisely describes the treatment of animals engaged in by a particular religion while exempting similar treatment of animals engaged in for other purposes.

d) The Masterpiece Cake clarification: Adjudicators cannot base decisions about the applicability of a particular law on their hostility towards the religious beliefs of the person subject to the law

2. In some sense, this case is a dud. Many believed the Supreme Court would decide on the vitality of Employment Division v. Smith. As you will see, much to the consternation of some of the justices, the Court did not do that. Rather, it found one of the conditions for Smith inapplicable and thus applied the still-kicking Sherbert compelling interest test, which the City of Philadelphia badly flunked. So why do I make it a centerpiece of our discussion of religious liberty? First, it exposes you to the conflicting perspectives and twisted history of religious freedom jurisprudence. And, long as the opinion is, even after vigorous editing, it is shorter than having to read Sherbert, Smith, Lukumi, and RFRA in which those perspectives were developed. Second, I want to prepare you for the world of the future. Unless there is court packing or other unexpected development occur, there is a decent possibility that Smith will be killed or badly wounded by the Supreme Court in the fairly near future with the potential restoration of Sherbert.  The Alito and Gorsuch opinions are recipes for how that counter revolution might occur. 

3. Notice that for a 9-0 decision, this case sure generated a lot of strong words. Why do you suppose that is?

4. Make sure you understand the sequencing here: (1) Sherbert v. Verner (1963); (2) Employment Division v. Smith (1990); Lukumi (1992); RFRA (1993); Fulton (2020). And make sure you understand what happened at each step.  At some point in the course you will encounter City of Boerne v. Flores (1997), which is about Congress' powers under section 5 of the 14th amendment and is, in my opinion, one of the most important cases in constituitional law.  When that happens, make sure you understand its place and importance in the chronology. You may also wish to contemplate what happens to the test developed by City of Boerne v. Flores if a future opinion kills off Smith and restores something closer to Sherbert.

4. The practice of writing a "neutral law" that just happens to interfere with the religious practices of a particular religion or group of religions is sometimes called "religious gerrymandering." Lukumi, in which the "neutral" city ordinance was well crafted to just go after behaviors that Santeria worshippers engaged in is the canonical example. Imagine also a "child protection" law, for example, that prohibited persons other than a parent or guardian from sprinkling water on the head of a person under one years old.

5. Justice Scalia writing in Smith challenged the Sherbert requirement that government have a compelling interest before even a "generally applicable" law burdened religion. He stated: "Moreover, if 'compelling interest' really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws, to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this."  What answer do Justices Gorsuch and Alito provide to this statement in their concurrences in Fulton?

6. Notice that privileging religious views could require at least three inquiries to prevent anarchy: (1) whether the belief is "religious" as opposed to secular or ethical or scientific; (2) whether religious belief is "true" or "central"; and (3) whether the religious belief is sincerely held or pretextual. On question 1, there are not a lot of cases directly addressing the issue, perhaps because during the Smith era, religious views were not seen as a constitutional basis for an exemption from generally applicable law. Should we move to a more Alito/Gorsuch perspective, I would expect there to be more litigation on what constitutes religion, particularly as our population becomes more diverse and encompasses a larger number of adherents to non-theistic belief systems such as Jainism, Satantic Temple, certain branches of Hinduism and Buddhism, and Ethical Humanism.  On question 2, at present courts do not assess truth (U.S. v. Ballard, 322 U.S. 78, 86 (1944)), comprehensibility (Thomas v. Rev. Bd. of Indiana Empl. Sec. Div., 450 U.S. 707, 714 (1981)), or centrality (Empl. Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 886–87 (1990)). On question 3, courts will determine Twhether the beliefs professed by a litigant "are sincerely held and whether they are, in his own scheme of things, religious." U.S. v. Seeger, 380 U.S. 163, 185 (1965)