Supreme Court religious liberty wins could signal landmark conservative victory in gay adoption case

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The Supreme Court’s opinions this year in a series of religious liberty cases indicate it may deliver a landmark victory for social conservatives in 2021, according to legal experts.

The case in question, Fulton v. City of Philadelphia, pits two explosive causes against each other: gay rights and faith-based objections to anti-discrimination laws. It arose after Catholic Social Services, an adoption agency owned by the Archdiocese of Philadelphia, sued the city for threatening to cut ties with it over the agency’s refusal to entrust children to gay couples.

The court took up the case in February, as it considered Espinoza v. Montana Department of Revenue, Our Lady of Guadalupe School v. Morrissey-Berru, and Bostock v. Clayton County, three cases that promised to have major implications for religious liberty. All three cases have been decided, and their respective outcomes showed that, in general, the court looks on religious institutions as a protected class and favors their desire to dissent from public consensus on social issues.

The outcome of Fulton will likely be most influenced by the line of thinking in Espinoza. Here, the court ruled that state governments violate the free exercise clause of the Constitution by barring tuition assistance to parents who send their children to private religious schools. The case effectively squashed the so-called Blaine Amendments, which many states adopted in the 1870s to prevent governments from aiding Catholic schools.

The conditions that gave rise to Fulton will likely answer some of the questions left open in Espinoza, said Mark Movsesian, director of the Center for Law and Religion at St. John’s University. Similar to the schools in Espinoza, the adoption agency in Fulton is framing its case as a free exercise issue. What the court must decide, Movsesian said, is whether it will consider Philadelphia’s application of its law is an infringement on the First Amendment and “whether the court will grant religious institutions an accommodation from these anti-discrimination laws on the basis of religious conviction.”

Fulton is really an important case, considering what happened this term,” he added.

The most compelling indication that the court could deliver a victory for Catholic Social Services in Fulton is Chief Justice John Roberts’s opinion in Espinoza, where he stated that the court will apply “strict scrutiny” whenever the free exercise clause is in question, said Michael Moreland, a professor of law and religion at Villanova University. Strict scrutiny is a form of judicial review that determines if a law furthers a “compelling governmental interest” through “narrowly tailored” methods, and by the “least restrictive” means.

Moreland predicted that the court’s application of strict scrutiny will make it difficult for the city of Philadelphia to enforce its law on Catholic Social Services.

“The fact that a religious entity is denied a government benefit and is subject to differential treatment, combined with the fact that the chief justice says that that triggers strict scrutiny, then you start to see how the court could very well rule in favor of the plaintiffs in Fulton,” Moreland said.

The opinions in the other two major cases this term, Guadalupe and Bostock, show that the court is trying to maintain an even-handed approach in how it protects often opposed factions, Moreland added. In Guadalupe, the court decided that religious schools are not subject to anti-discrimination employment laws because all teachers at such schools are essentially ministers of a faith. In Bostock, the court expanded its definition of Title VII to included gay and transgender people as protected classes in employment law.

“You start to see a way in which the court is trying to balance, on the one hand, protections for gay rights, and on the other hand, protections for religious freedom,” Moreland said, in reference to the two cases.

Whatever decision the court reaches in Fulton will represent another attempt to preserve that balance.

Even still, Fulton could upend decades of religious liberty litigation. For, in taking up the case, the court also agreed to revisit the controversial 1990 court decision, Employment Division v. Smith, which states that, if a law is neutral and generally applicable, then there is no constitutional right of exemption under the free exercise clause. Smith has long been a stumbling block for plaintiffs in free exercise cases, and is one of the reasons why Congress adopted the Religious Freedom Restoration Act in 1993 to protect religious liberty.

The court did not consider Smith in any of its opinions this term, but Fulton is poised to be a referendum on its legitimacy. The case is expected to be discussed during arguments in October and if the court decides in favor of Catholic Social Services, reversed or narrowed.

“Even if the court doesn’t outright reverse Smith, concerns about differential treatment based on religious status, or based on what a religious entity wants to do, is a way of narrowing Smith’s application,” Moreland said.

John Bursch, a senior counsel at the nonprofit law firm Alliance Defending Freedom who argued against transgender protections in Bostock, said that if Fulton is decided in favor of Catholic Social Services, and Smith is narrowed or reversed, its implications could be monumental. The decision would be the “Hobby Lobby of religious liberty,” he said, in reference to a landmark 2012 case that expanded exceptions to the Affordable Care Act’s contraception mandate.

“If the court concludes that the Constitution very broadly protects religious liberty in that context, that will certainly be a signal that the court will recognize those same rights to religious liberty in many other contexts,” Bursch said of Fulton after the Bostock decision.

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