Prof. Michael McConnell (Stanford) on Fulton v. City of Philadelphia
I’m delighted that Prof. McConnell—one of the top Religion Clauses scholars in the country—was willing to pass along some thoughts on the Fulton oral argument:
The Supreme Court heard oral argument Wednesday in Fulton v. City of Philadelphia, a case asking whether Philadelphia violated the Free Exercise Clause by excluding Catholic Social Services (CSS) from the array of private groups connecting children without families with willing foster homes, on the ground that CSS’s religious beliefs prevent it from certifying same-sex or unmarried couples who want to become foster parents. Not that that ever happened. No same-sex couples have ever tried to foster through CSS. And not that CSS’s beliefs have any real effect on such couples: they can foster through any number of other organizations. The only concrete consequence of the exclusion is to leave hundreds of children in Philadelphia without foster homes.
One of the questions presented in Fulton is whether the Court should “revisit” (meaning overrule) the Court’s much-criticized 1990 decision, Employment Division v. Smith, in which the Court allowed criminal prosecution of Native American Church practitioners for ingesting peyote, their sacramental substance. That decision, written by the late lamented Justice Antonin Scalia, has been criticized by multiple Justices over the years as well as by a host of academics (though the ideological valence of the critique has shifted from left to right over the ensuing decades). My views on Smith are no secret; Justice Scalia called me Smith‘s most prominent academic critic. I hope and expect that the Court will revisit the decision, which without benefit of briefing or argument drastically narrowed the First Amendment protection for free exercise of religion in the teeth of constitutional text and precedent and what I consider the strong weight of historical evidence of original understanding.
Alas, during Wednesday’s oral argument the Justices showed no serious interest in the merits or demerits of Smith. The reason is obvious: the Petitioner, CSS, led with the argument that it should prevail even under Smith. The new Justice, Amy Coney Barrett, whom most people assume is not a friend to the Smith decision, pointedly asked CSS’s counsel:
[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?
It is of course likely that some of the Justices will concur on the ground that Smith should be overruled. Is has been common the last few years for the Court to render narrow decisions in an early case, declining invitations to overrule precedent, and then to grab the bull by the horns in a subsequent decision. And it is likely that a minority of the Court will vote against CSS—though exactly on what legal ground it is hard to predict. Probably not the unpersuasive logic of the court below.
Assuming for sake of arg
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