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Andrew C. Spiropoulos

Conservatives believe that the new U.S. Supreme Court can serve as an effective buffer in the culture wars. An excellent example of a case that may serve as an appropriate vehicle for vindicating the right to religious liberty is Fulton v. City of Philadelphia, a case argued before the court earlier this month.

Catholic Social Services, a foster-care organization associated with the Catholic Archdiocese of Philadelphia, has for many years served the city of Philadelphia by certifying potential foster parents. CSS, because of its Catholic faith, cannot consider certifying either unmarried couples or same-sex married couples. In 2018, the city council ordered its foster care agency to cease making referrals to CSS, despite CSS 100 years of foster care ministry. The city cannot abide any connection with what it believes is rank bigotry.

Under current precedent, the case appears easy. In 1990, the court, in Employment Division v. Smith, held that a government law that does not discriminate against religious people and treats all covered by the law equally must generally be upheld even if the law substantially burdens the free exercise of religion equality before the law requires that religious people be given no special judicial exemptions from neutral, generally applicable laws. The city requires that its contractors do not discriminate on the basis of sexual orientation. If the city wanted to exempt CSS, it could, but since it does not, case closed.

But not so fast. One of the reasons the court took this case is that it wants to consider using it as a vehicle to overrule Smith. What would that mean? Even if the citys law is neutral and generally applicable, if it substantially burdens religious liberty such as ending a century-old foster care ministry that is central to the mission of the Catholic Church the court will not give the citys law any deference. Instead the city will have to meet strict scrutiny, which requires the city to prove it has a compelling interest for its law and that the law is absolutely necessary. While the city doubtless will argue that ending discrimination based on sexual orientation meets the highest possible standard, CSS, pointing to the availability of over two dozen other foster care agencies who are happy to work with same-sex couples, will argue that ending its ministry is not necessary to ensuring same-sex couples access to the foster care system.

The overruling of Smith would have enormous legal and institutional significance. It would signal that the court is ready to explicitly embrace an active role in umpiring the most heated cultural conflicts. These cases, like Fulton itself, are notoriously difficult and close, and the results will go both ways. But, should the court choose to take on this burden, it may encourage our warring parties to catch the spirit of compromise.

Its hard to not root for Smiths overruling when you see whats going on here in Oklahoma. The State Department of Education has crafted rules that will exclude certain religious schools from participating in the Lindsay Nicole Henry Scholarship program because they refuse to sacrifice certain aspects of their religious character. While it appears obvious that SDE has flouted the clear terms of the programs statute, one can imagine a future in which the law does not protect religious liberty. A revitalized First Amendment doctrine might come in handy.

Andrew Spiropoulos is the Robert S. Kerr, Sr. Professor of Constitutional Law at Oklahoma City University and the Milton Friedman Distinguished Fellow at the Oklahoma Council of Public Affairs. The views expressed in this column are those of the author and should not be attributed to either institution.

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Right Thinking: Is Supreme Court ready to umpire heated culture conflicts? - Journal Record