Protecting free exercise under Smith and after Smith

  • Protecting free exercise under Smith and after Smith

    updated 1 month, 2 weeks ago 1 Member · 1 Post
  • Anonymous

    June 19, 2021 at 7:19 PM


    This article is part of a symposium on the court’s decision in Fulton v. City of Philadelphia.

    Thomas C. Berg is the James L. Oberstar professor of law and public policy at the University of St. Thomas (Minnesota). Douglas Laycock is the Robert E. Scott distinguished professor of law at the University of Virginia. 

    Fulton v. Philadelphia is an important win for religious liberty. Philadelphia may not terminate its foster-care services contract with Catholic Social Services on the ground that CSS declines, because of its religious beliefs, to certify same-sex couples as foster parents. Teachings about sex and marriage are central to many religions; so are works of service. If religions lose the ability to serve because they act on their central teachings, the harm to free exercise is severe. The court prevented that here — and the result was unanimous.

    Fulton applied the rule of Employment Division v. Smith: A law may burden religion if it is neutral and generally applicable, but if not, then the burden on religion must be justified by a compelling government interest. Fulton clarifies Smith in ways that strengthen protection.

    The court made clear that general applicability is a separate requirement from neutrality; both must be satisfied. It held that a rule flunks general applicability when it gives officials discretion to grant exceptions, even if the officials never grant any: The discretion enables discrimination against religion. Nor can government discriminate just because it’s setting rules for its contractors rather than regulating the general public.

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