Employing Smith to Prevent a Constitutional Right to Discriminate Based on Faith: Why the Supreme Court Should Affirm the Third Circuit in Fulton v. City of Philadelphia

70 Am. U. L. Rev. 1165 (2021).

* Junior Staff Member, American University Law Review, Volume 70; J.D. Candidate, May 2022, American University Washington College of Law; B.A., International Relations and Global Studies, 2018, The University of Texas at Austin. I owe thanks to many people for their assistance in making this Comment a reality. To the entire Law Review team, especially Ari Bental and Maddie Dolan, thank you for your optimism, friendship, and guidance throughout the Comment writing and editing process. To Professor Lia Epperson, my faculty advisor, thank you for counseling my understanding of constitutional law; also, to Professor Elizabeth Earle Beske, my Legal Rhetoric professor, thank you for teaching me the importance of clear and concise writing. To Dr. Michael W. Mosser at The University of Texas at Austin, thank you for instilling a love of learning and free thinking. Finally, to my family and Evan, thank you for all your sacrifices, love, and support every step of the way.

In the interest of the children in the Philadelphia foster care system, the City of Philadelphia prohibits its contracting foster care agencies from discriminating against prospective foster care parents on account of race, religion, and sexual orientation, among other things. Despite this requirement, in 2018, two foster care agencies—Catholic Social Services (CSS) and Bethany Christian Services—that have annual contracts with Philadelphia refused to certify same-sex couples as foster parents for religious reasons. While Bethany Christian Services reached an agreement with the city, CSS did not. As a result, the city froze foster care placement referrals to CSS and did not renew its contract with CSS for the following year.

In response, several foster parents and CSS sued Philadelphia to challenge the city’s freeze on First Amendment religious freedom grounds. This past November, the Supreme Court of the United States heard oral arguments for Fulton v. City of Philadelphia, spanning three separate but related issues: (1) whether free exercise plaintiffs must prove a particular type of discrimination claim to prevail; (2) whether the Court should revisit its leading precedent on Free Exercise Clause claims, Employment Division v. Smith; and (3) whether Philadelphia violated the First Amendment by requiring a religious foster care agency to take actions that contradict its religious beliefs to participate in the taxpayer-funded foster care system.

This Comment argues that all courts should first apply the neutral-and-generally-applicable standard established in Smith when evaluating Free Exercise Clause claims. Applying that standard to Fulton, the Supreme Court should find that Philadelphia’s Services Contract and Fair Practices Ordinance are operationally neutral and generally applicable. Therefore, they are only subject to rational basis review. Moreover, this Comment argues that there is not a circuit split amongst the circuit courts on how to apply Smith, and, thus, there is no need for the Supreme Court to revisit Smith, for any purpose other than clarifying which exceptions, if any, exist. Lastly, Philadelphia’s conditioning of government funds on actions contrary to CSS’s religious beliefs does not constitute a First Amendment violation.

Introduction

In 2018, the Philadelphia Inquirer published a story that made the City of Philadelphia aware of two foster care agencies, Catholic Social Services (CSS) and Bethany Christian Services, that had annual contracts with Philadelphia but were refusing to certify same-sex couples as foster parents for religious reasons.¹ In its article, which focused on CSS, the Inquirer labeled CSS’s actions for what they were: discrimination against the LGBTQ community, actions that violated its contract with Philadelphia, which prohibited discrimination based on sexual orientation, among other protected categories.²

After receiving confirmation from CSS that it would not certify prospective LGBTQ foster parents, Philadelphia froze referrals to CSS and refused to renew its contract with CSS for the following year.³ Several foster parents and CSS jointly sued Philadelphia to challenge the city’s referral freeze on First Amendment religious freedom grounds.⁴ On June 5, 2018, CSS filed a motion for a temporary restraining order and a preliminary injunction in the U.S. District Court for the Eastern District of Pennsylvania, seeking to require the city to resume foster care referrals to CSS.⁵ Finding that the public interest and the balance of harms tilted in favor of the city, the district court denied CSS’s motion.⁶

On appeal, the U.S. Court of Appeals for the Third Circuit affirmed the district court’s decision.⁷ Applying the U.S. Supreme Court case Employment Division v. Smith,⁸ the Third Circuit found that Philadelphia did not discriminate against CSS based on the agency’s religious affiliation and beliefs.⁹ On February 24, 2020, the U.S. Supreme Court granted certiorari to consider three issues.¹⁰ The Court heard arguments on those issues in Fulton v. City of Philadelphia¹¹ on November 4, 2020.¹² First, the Court will determine “[w]hether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim—namely that the government would allow the same conduct by someone who held different religious views”—or “whether courts must consider other evidence that a law is not neutral and generally applicable,” an issue that CSS argues has resulted in a circuit split.¹³ Second, the Court will decide whether to reconsider the standard that the Court set in Smith for courts to use to evaluate Free Exercise Clause claims.¹⁴ Third, the Court will consider “whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.”¹⁵ At the time of publication of this Comment, the Supreme Court has not yet issued an opinion in the case about these three issues.

Part I of this Comment first provides background information on First Amendment jurisprudence, including a detailed overview of Smith and its progeny, before outlining the factual and procedural history of Fulton. The latter portion of Part I outlines each issue before the Court in more detail, the case law that CSS uses to manufacture a nonexistent circuit split, merits and disadvantages of the Smith neutral-and-generally-applicable standard, and the precedent that governs situations where conditions on government contracts conflict with First Amendment rights. Part II of this Comment compares Fulton to existing precedent and determines that a circuit split does not actually exist; thus, courts should continue to first apply the neutral-and-generally-applicable standard, which the Supreme Court established in Smith, when evaluating Free Exercise Clause claims. Part II also argues that the government does not violate the First Amendment by requiring an agency to act in ways that contradict the agency’s religious beliefs to participate in a taxpayer-funded foster care system.¹⁶ This Comment concludes that the Supreme Court should affirm the Third Circuit’s decision and rule in favor of Philadelphia on all three issues.

I. Background

Before determining how the Supreme Court should rule on the three issues at stake in Fulton, this Comment examines the applicable case law for each issue.¹⁷ First, this Part provides an overview of First Amendment jurisprudence. This overview describes the various levels of scrutiny that the Supreme Court applies when evaluating cases that implicate fundamental rights or discrimination, the precedential Smith case, and the subsequent shift in scrutiny applied to Free Exercise Clause claims following Smith. Second, this Part explains the events that gave rise to the Supreme Court’s grant of certiorari in Fulton and each party’s argument. Third, this Part explores the cases that CSS proffers as proof of a nonexistent circuit split over how to apply Smith. Fourth, this Part provides both the criticisms and praises of Smith, which are relevant for evaluating whether the Court must revisit the case. Finally, this Part examines Supreme Court precedent concerning First Amendment claims involving government contracts that require adherence to positions that may be contrary to an agency’s beliefs.

A. First Amendment Jurisprudence

The First Amendment guarantees freedom of religion and freedom of expression.¹⁸ Fulton largely concerns the Free Exercise Clause¹⁹ and the Free Speech Clause.²⁰ The Free Exercise Clause protects against government interference with an individual’s right to practice her religion.²¹ The Free Speech Clause guarantees that an individual may express herself, either directly through words or symbolically through actions, without government interference.²² Further, the Free Speech Clause protects the right not to speak.²³

When analyzing a First Amendment case, the Supreme Court applies one of three degrees of scrutiny: rational basis review, intermediate scrutiny, or strict scrutiny.²⁴ The Court uses rational basis review—its default and most lenient level of review—in most cases that do not involve classifications the Court has deemed suspect or quasi-suspect—such as those based on race, national origin, and gender—or fundamental rights.²⁵ Any conceivable legitimate basis for the challenged state conduct will allow the conduct to survive rational basis review.²⁶ The Court uses a heightened level of review called intermediate scrutiny when considering government classifications such as those that involve sex, gender, nonmarital children, and undocumented, non-citizen children.²⁷ To survive intermediate scrutiny, the government “must assert a substantial interest to be achieved by restrictions.”²⁸ The final and highest level of review is strict scrutiny, which applies to cases involving suspect government classifications, such as ones based on race, and cases involving the deprivation of fundamental rights.²⁹ To survive strict scrutiny, the government must prove that a compelling state interest motivated its challenged action and that the action was narrowly tailored to achieve the state interest.³⁰

The Supreme Court has altered the level of scrutiny applied to Free Exercise Clause claims repeatedly over the years. In the first Free Exercise Clause case, Reynolds v. United States,³¹ the Court determined that the government could place certain limitations on the free exercise of religion.³² This view of the Free Exercise Clause prevailed until the 1960s, when the Warren Court began to apply strict scrutiny to Free Exercise Clause claims, approaching all government limitations of free exercise of religion with heightened suspicion.³³ Sherbert v. Verner³⁴ was the landmark case that first applied strict scrutiny to Free Exercise Clause claims.³⁵ Sherbert concerned a South Carolina unemployment benefit regulation that “appl[ied] the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest.”³⁶ In Sherbert, the Court required the State to have a “compelling interest” that justified the infringement on free exercise to survive strict scrutiny.³⁷ Sherbert governed Free Exercise Clause claims until 1990, when Justice Scalia authored the majority opinion in Smith—a case central to the decision in Fulton—and lowered the default level of review of Free Exercise Clause claims to rational basis.³⁸

1. The Smith standard for Free Exercise Clause claims

Until Smith, the Supreme Court automatically applied strict scrutiny when considering claims concerning free exercise of religion—like equal protection claims based on race, national origin, or ancestry, or cases involving fundamental rights;³⁹ however, after Smith, rational basis review is the current default standard that the Court applies to First Amendment free exercise claims.⁴⁰ On April 17, 1990, Justice Scalia delivered the majority opinion in Smith, which revolutionized the traditional free exercise analysis.⁴¹ In Smith, a private drug rehabilitation organization fired two employees, who consumed peyote, a hallucinogen, for sacramental purposes at their Native American church.⁴² After their termination, these two men did not receive unemployment benefits because Oregon law disqualified any employees who were fired for misconduct.⁴³ The Oregon Supreme Court found that using peyote for sacramental purposes violated Oregon’s controlled substance law, but it held that the Free Exercise Clause invalidated this prohibition.⁴⁴

Upon review, the U.S. Supreme Court held that “the Free Exercise Clause . . . permits the State . . . to deny unemployment benefits to persons dismissed from their jobs because of [] religiously inspired use” of peyote, a substance that the State’s criminal laws prohibited.⁴⁵ The majority did not feel “inclined to breathe into Sherbert some life beyond the unemployment compensation field” and apply it in the context of “exemptions from a generally applicable criminal law.”⁴⁶ Thus, Smith replaced the previous Sherbert “compelling interest” standard with a standard that assumes that “neutral laws of general applicability” are constitutional, even when they unintentionally infringe on the free exercise of religion.⁴⁷ The crux of the Court’s reasoning for lowering the level of scrutiny from strict to rational basis was that strict scrutiny in Free Exercise Clause cases would produce “a private right to ignore generally applicable laws.”⁴⁸ Further, the majority reasoned that “[i]f the ‘compelling interest’ test” applied to this Free Exercise Clause claim, it would have to apply “across the board.”⁴⁹ The Court viewed this “across the board” application as “courting anarchy” because it anticipated that the “compelling interest” test would create the possibility of constitutionally required religious exemptions from all types of civic obligations.⁵⁰ As such, the Court, signaling a return to the Reynolds era, concluded that laws of neutral and general applicability are subject only to rational basis review.⁵¹

a. Two potential exceptions to Smith

Although the majority opinion in Smith appears to significantly reduce Free Exercise Clause protections, it alludes to two possible exceptions that would allow a court to apply strict scrutiny to Free Exercise Clause claims. First, the Court suggested that courts might apply the Sherbert “compelling interest” test in cases where the law at issue created a system of “individualized exemptions.”⁵² A system of individualized exemptions exists when a government authority considers “at least some ‘personal reasons’” when making determinations about an applicant’s eligibility for unemployment benefits.⁵³ Smith reiterated that this line of unemployment benefits cases involving strict scrutiny “[stood] for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.”⁵⁴

Second, the Smith opinion suggests the possibility of a “hybrid rights” exception.⁵⁵ The Court envisioned certain cases that might involve a “hybrid situation” where a plaintiff raises a Free Exercise Clause claim in conjunction with another constitutional claim.⁵⁶ These two exceptions would allow a court to apply strict scrutiny to otherwise “neutral, generally applicable laws.”⁵⁷ While the Smith opinion provided details, albeit few, of when a Court might still apply strict scrutiny to Free Exercise Clause claims, the Court did not describe how to proceed when a law does not meet the Smith neutral-and-generally-applicable standard.

b. Two U.S. Supreme Court cases that clarified how to apply Smith

Just three years after Smith, the Court heard Church of the Lukumi Babalu Aye v. City of Hialeah,⁵⁸ a case in which the Court encountered city ordinances that did not meet the Smith neutral-and-generally-applicable standard.⁵⁹ In Lukumi, the Court considered whether city ordinances that prohibited possession of animals for sacrifice violated the free exercise rights of people who practiced the Santeria religion, which prescribes ritual animal sacrifice as a form of worship.⁶⁰

The Court began its analysis with a roadmap that clarified the process courts should follow when assessing Free Exercise Clause claims under Smith. First, the Court stated that Free Exercise Clause claims should begin with an assessment of whether the challenged law meets the Smith neutral-and-generally-applicable standard.⁶¹ The Lukumi opinion clarified that the neutrality and general applicability elements are interrelated.⁶² Next, the Court provided the instruction that Smith failed to include: “A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.”⁶³ Thus, Lukumi explained that the Smith inquiry is not dispositive of whether a court should apply rational basis review to a law that allegedly violates the Free Exercise Clause; rather, the Smith inquiry is merely a starting point for that analysis.⁶⁴ As the first case to apply the Smith standard, Lukumi provided insights into what factors support a finding of neutrality and general applicability.

The Court first examined the neutrality of the city ordinances that banned religious sacrifice of animals.⁶⁵ The Court explained that laws that target religious beliefs are not neutral.⁶⁶ To preface its analysis, the Court advised that, when making determinations of whether a law targets religious beliefs, courts must consider relevant evidence, such as “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.”⁶⁷ The Lukumi majority instructed that when determining the object of the law, courts must begin their analysis by examining the law’s text.⁶⁸ Laws that refer to religious practices “without a secular meaning discernible from the language or context” are not neutral.⁶⁹ The Court found that the ordinances’ text proved facially neutral; however, the Court explained that facial neutrality alone is not determinative of whether the law meets the neutrality element.⁷⁰

Next, the Court considered whether the challenged ordinances were operationally neutral, and it found that they were not.⁷¹ The ordinances allowed animal slaughtering for all purposes other than Santeria sacrifice, which factored into the Court’s finding.⁷² Moreover, the Court noted “[a] pattern of exemptions.”⁷³ The Court determined that the scope of the ordinances lacked operational neutrality as they “proscribe[d] more religious conduct than [] necessary” to accomplish the government’s stated interests in protecting public health and preventing animal cruelty.⁷⁴

Lastly, the Court explained that courts may refer to equal protection cases when determining if the object of a law is neutral under the Free Exercise Clause.⁷⁵ The Court concluded that the ordinances’ allowance of animal slaughtering for other purposes and the pattern of exemptions proved that the object of the law was to suppress the free exercise of the Santeria religion.⁷⁶

Having found the ordinances not neutral, the Court went on to consider their general applicability, and it found that the ordinances were “well below the minimum standard necessary” to prove general applicability.⁷⁷ To determine whether the ordinances displayed general applicability, the Court considered the scope of the ordinances.⁷⁸ The Court found the ordinances underinclusive with regard to the city’s purported interest of protecting public health because they ignored other threats to public health that were unconnected to the Santeria believers’ behavior.⁷⁹ Finding that the ordinances did not meet the Smith neutral-and-generally-applicable standard, the Court subjected the ordinances to the “most rigorous of scrutiny.”⁸⁰

The Court determined that the ordinances did not pass strict scrutiny.⁸¹ First, the Court did not find the governmental interest of protecting health and safety compelling.⁸² Additionally, even if the government had presented a compelling interest, the ordinances were not tailored narrowly enough to justify the governmental interest.⁸³ As such, the Court determined that the ordinances at issue violated the Free Exercise Clause and rendered them void.⁸⁴ Lukumi provided important guidance for courts in their application of Smith: it clarified that Smith is merely the threshold test for Free Exercise Clause claims;⁸⁵ it provided examples of what factors to consider when analyzing laws for neutral and general applicability;⁸⁶ and it instructed that when a law fails to meet the Smith neutral-and-generally-applicable standard, courts must subject it to strict scrutiny.⁸⁷

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,⁸⁸ the Court built on Lukumi and further clarified what factors to consider during the Smith analysis.⁸⁹ In Masterpiece Cakeshop, Jack Phillips, a baker and “devout Christian,” refused to create a wedding cake for a same-sex couple because of his religious opposition to same-sex marriage; however, he offered to create other baked goods for the couple.⁹⁰ The couple filed a complaint with the Colorado Civil Rights Commission (“the Commission”) and alleged that Phillips violated the Colorado Anti-Discrimination Act⁹¹ (CADA), which prohibited discrimination based on sexual orientation.⁹² Phillips argued that requiring him to bake the couple’s wedding cake would violate his First Amendment rights to both free speech and free exercise of religion.⁹³ An Administrative Law Judge did not find any violation of Phillips’s First Amendment rights, and both the Commission and the Colorado Court of Appeals agreed.⁹⁴

The U.S. Supreme Court began its review by first recognizing the constitutionality of CADA.⁹⁵ The Court then explained that the proper issue to examine was the level of neutrality and respect that the Commission applied when hearing Phillips’s case.⁹⁶ The Court determined that the Commission’s consideration of Phillips’s case “was inconsistent with the State’s obligation of religious neutrality.”⁹⁷ To reach this decision, the Court considered the factors of government neutrality set forth in Lukumi, and in doing so, it found that the Commission showed “clear and impermissible hostility” toward Phillips’s religious beliefs.⁹⁸

Specifically, the Court observed that by allowing three other bakers with conscience-based objections to refuse service and not allowing Phillips’s objection, the Commission displayed disparate treatment in its enforcement of CADA and showed hostility toward Phillips.⁹⁹ Further, the Court found some of the commissioners’ comments hostile.¹⁰⁰ One commissioner expressed that Phillips could believe “what he wants to believe,” but “if he decides to do business in the state,” he cannot act on those beliefs.¹⁰¹ Another commissioner compared Phillips’s religious beliefs to “defenses of slavery and the Holocaust” and characterized Phillips’s beliefs as “one of the most despicable pieces of rhetoric that people can use to . . . hurt others.”¹⁰² While the first commissioner’s comments could be interpreted in more benign ways, the Court determined that the two commissioners’ comments, when viewed together, required the Court to find that the Commission did not approach Phillips’s case with neutrality.¹⁰³ As such, the Court found that the Commission’s treatment of Phillips’s case violated the State’s First Amendment duty “not to base laws or regulations on hostility to a religion or religious viewpoint.”¹⁰⁴ The Masterpiece Cakeshop opinion built on Smith and Lukumi, as it provided that courts should also consider hostility when assessing whether laws meet the Smith neutral-and-generally-applicable standard.

Although the Court has clarified, in Lukumi and Masterpiece Cakeshop, how to assess whether a contested law meets the Smith neutral-and-generally-applicable standard, the Fulton case has placed the Smith standard before the Supreme Court yet again.

B. A Detailed Explanation of Fulton’s Facts and Procedural History

1. The facts of Fulton

In 2018, the city of Philadelphia had the highest per-capita rate of children in the foster care system among major American cities.¹⁰⁵ The Commonwealth of Pennsylvania, the City of Philadelphia, and private agencies collaborate to manage the ever-increasing number of children in need of foster care.¹⁰⁶ Commonwealth regulations govern the criteria that potential foster parents must meet for certification.¹⁰⁷ Further, the Commonwealth allocates duties between the agencies and the foster parents.¹⁰⁸ Philadelphia contracts with private agencies on an annual basis, and it uses taxpayer money to compensate private agencies for their services.¹⁰⁹ The “Services Contract” requires the private agencies to comply with state regulations; specifically, the contract contains language that prohibits agencies “from discriminating due to race, color, religion, or national origin, and [the contracts] incorporate[] the city’s Fair Practices Ordinance [(FPO)], which in part prohibits sexual orientation discrimination in public accommodations.”¹¹⁰ Once contractual relationships between the city and private agencies form, Philadelphia, through the Department of Human Services (DHS), refers children who come into its custody to one of the agencies under contract.¹¹¹

In 2018, Philadelphia had contracts with thirty foster care agencies, two of which refused to certify same-sex couples as foster parents.¹¹² After learning through a Philadelphia Inquirer article¹¹³ that Catholic Social Services (CSS) and Bethany Christian Services refused to work with same-sex couples due to the organizations’ religious belief that marriage can only exist between a man and a woman, DHS Commissioner Cynthia Figueroa began questioning agencies about their various policies.¹¹⁴ None of the other agencies that Commissioner Figueroa contacted reported similar policies.¹¹⁵ Eager to continue Philadelphia’s hundred-year relationship with CSS, Commissioner Figueroa met with James Amato, CSS’s Secretary, to resolve the contractual issue.¹¹⁶ In attempting to reach a solution, Commissioner Figueroa, “who is Catholic and Jesuit-educated,” told Amato that “it would be great if CSS could follow the teachings of Pope Francis,” appealing to an authority within Amato and Figueroa’s shared religious tradition.¹¹⁷ The parties failed to reach an agreement, and DHS stopped referring foster families to CSS.¹¹⁸

On multiple occasions during the intake freeze, DHS granted exceptions that allowed for the placement of foster care children with CSS if it was clear that CSS was the agency best suited to find a placement for a child.¹¹⁹ Despite the intake freeze on foster care referrals, DHS allowed CSS to continue working as a congregate care provider and Community Umbrella Agency.¹²⁰ Two days after the Inquirer article, the City Council passed a resolution that created the Philadelphia Commission on Human Relations; the City Council created this Commission to “investigate Department of Human Services’[s] policies on contracting with social services agencies that . . . discriminate against prospective LGBTQ foster parents.”¹²¹ Just one day after its formation, the Commission on Human Relations sent CSS many questions concerning CSS’s policies regarding the certification of prospective LGBTQ foster parents.¹²² On May 7, 2018, Philadelphia’s lawyers wrote to CSS again explaining their interpretation of the contract; this letter “underscored ‘respect [for CSS’s] sincere religious beliefs,’” and it stated that DHS hoped to maintain its “valuable relationship” with CSS.¹²³ CSS never replied to these letters—it instead responded with a lawsuit.¹²⁴

2. Procedural history of Fulton

On June 5, 2018, in the Eastern District of Pennsylvania, CSS moved for a temporary restraining order and a preliminary injunction, which would require Philadelphia to resume foster care referrals to CSS.¹²⁵ Finding that the balance of harms and the public interest tilted in favor of the defendants, the district court denied CSS’s motion.¹²⁶ The district court determined that both the Services Contract and the FPO, which the Services Contract incorporated, were facially neutral and generally applicable under Smith.¹²⁷ The court reached this conclusion through careful consideration of the plain language of the text, which had no mention of religion other than protecting people from religious discrimination; the legislative history of the FPO; and the intent of the FPO, all of which supported a finding of neutrality.¹²⁸

Finding the Services Contract and the FPO neutral and generally applicable, the court applied a rational basis analysis, considering whether the Services Contract and the FPO were rationally related to legitimate government objectives.¹²⁹ The court concluded that Philadelphia had “at least six permissible [and legitimate] governmental objectives”: (1) ensuring that government contractors adhere to the terms of their contracts with the city; (2) ensuring that when a contractor voluntarily agrees to be subjected to local laws and customs, those laws are enforceable; (3) ensuring that publicly funded services are accessible to all citizens who qualify; (4) ensuring a diverse and broad pool of potential foster parents; (5) ensuring that all taxpayers are not denied access to services that their tax dollars fund; and (6) avoiding likely Equal Protection Clause and Establishment Clause claims that would result if government contractors did not welcome all prospective parents.¹³⁰ Furthermore, the court determined that no factors, such as hostility, suggested religious-based animus, which, under Masterpiece Cakeshop, would trigger strict scrutiny.¹³¹ Finally, the court did not find the free speech claim alleging compelled speech to be persuasive, which ruled out the potential hybrid rights exception to Smith.¹³² For the foregoing reasons, the district court denied CSS’s motion.¹³³

On appeal, the Third Circuit affirmed the district court’s decision.¹³⁴ Applying Smith, the Third Circuit found that Philadelphia did not discriminate against CSS based on the agency’s religious affiliation or beliefs.¹³⁵ Following Smith, Masterpiece Cakeshop, Lukumi, and Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez,¹³⁶ the Third Circuit, like the district court, found that both the Services Contract and the FPO were neutral and generally applicable.¹³⁷ The Third Circuit took the aforementioned cases to mean that Free Exercise Clause plaintiffs “must show that [they were] treated more harshly than the government would have treated someone who engaged in the same conduct but held different religious views.”¹³⁸ The court concluded that Philadelphia did not treat CSS differently than it would have treated contractors of another religion.¹³⁹ Rather, the court determined that Philadelphia “acted only to enforce its non-discrimination policy in the face of what it considers a clear violation.”¹⁴⁰ The court found CSS’s argument that Philadelphia acted out of religious hostility unpersuasive and concluded that Philadelphia treated CSS respectfully.¹⁴¹ Finally, the Third Circuit determined that “[t]he Fair Practices Ordinance has not been gerrymandered as in Lukumi, and there is no history of ignoring widespread secular violations as in Tenafly or the kind of animosity against religion found in Masterpiece [Cakeshop].”¹⁴² In sum, the Third Circuit concluded that the “fact that CSS’s non-compliance with the city’s non-discrimination requirements is based on its religious beliefs does not mean that the city’s enforcement of its requirements constitutes anti-religious hostility.”¹⁴³

On February 24, 2020, the U.S. Supreme Court granted certiorari to hear Fulton and consider three issues.¹⁴⁴ First, the Court will examine a supposed circuit split to determine what evidence courts should consider when determining whether a regulation is neutral and generally applicable under Smith, the latest precedential Free Exercise Clause case.¹⁴⁵ CSS argues that the Third Circuit is on the wrong side of a “deep split” over what factors to consider when making threshold determinations of neutral and general applicability under Smith.¹⁴⁶ Philadelphia, however, argues that a circuit split does not exist.¹⁴⁷ Second, the Court will determine whether to revisit and overrule Smith.¹⁴⁸ CSS urges the Court to revisit Smith and overrule it, as it failed to deliver on its promise of continued religious freedom protections.¹⁴⁹ In contrast, Philadelphia suggests that this case is “an extremely poor vehicle to reconsider Smith.”¹⁵⁰ Third, and finally, the Court will consider whether DHS can compel CSS to take actions contrary to its beliefs, namely the act of certifying prospective LGTBQ foster parents, as a condition of its government contract to participate in the foster care system.¹⁵¹ CSS suggests that Philadelphia unconstitutionally compelled speech when it required CSS to certify prospective LGBTQ foster parents against its religious beliefs.¹⁵² Philadelphia, in contrast, argues that the Third Circuit properly determined that Philadelphia did not compel speech because CSS receives government funding and CSS voluntarily assented to the conditions of its government contract.¹⁵³

C. Issue One: Whether a 6-2 Circuit Split over the Appropriate Analysis for Free Exercise Clause Claims Exists

As discussed, CSS declared that there is currently a circuit split on the appropriate evidence that courts should consider when analyzing Free Exercise Clause claims.¹⁵⁴ According to CSS’s petition for certiorari, two circuits, the Ninth Circuit and the Third Circuit in Fulton, have decided to apply Smith narrowly and strictly, requiring free exercise plaintiffs to prove that a law is not neutral and generally applicable by showing that the government would allow a person with different religious views to perform the otherwise prohibited conduct.¹⁵⁵ However, CSS claims that six other circuits—the Second, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits—drawing from Smith, Lukumi, and Masterpiece Cakeshop, apply a “more capacious” approach, allowing free exercise plaintiffs to proffer various forms of evidence to support a finding that a law is not neutral and generally applicable.¹⁵⁶

1. The two circuits & their application of Smith

In Fulton, the Third Circuit found that Philadelphia’s non-discrimination clause pertaining to adoption agencies satisfied the Smith neutral-and-generally-applicable standard.¹⁵⁷

To make this determination, the Third Circuit assessed whether the FPO, to which CSS agreed to comply as a matter of contract law, met the neutral-and-generally-applicable Smith standard.¹⁵⁸ The court found unpersuasive CSS’s argument that the “anti-discrimination clause is not permissible under Smith” because it was “motivated by ill will toward a specific religious group or otherwise impermissibly targeted religious conduct.”¹⁵⁹

The Third Circuit compared the city’s treatment of CSS with the two Supreme Court cases that followed Smith: Lukumi and Masterpiece Cakeshop.¹⁶⁰ Additionally, the court compared CSS’s treatment to two Third Circuit Free Exercise Clause cases. The Third Circuit first referred to Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,¹⁶¹ where a police department policy contained a system of individualized exemptions but did not allow for religious exemptions.¹⁶² The police department allowed medical exemptions from a prohibition on facial hair, yet it refused to grant religious exemptions for Sunni Muslims whose religion forbade them from shaving their beards.¹⁶³ Second, the court referred to a similar case, Tenafly Eruv Ass’n v. Borough of Tenafly,¹⁶⁴ where, again, a system of exemptions did not extend to religious exemptions.¹⁶⁵ Here, the Borough of Tenafly selectively enforced an ordinance that prohibited the posting of materials on street poles, as it only enforced the policy when Orthodox Jews attempted to erect an eruv.¹⁶⁶

After comparing these cases to Fulton, the Third Circuit came to “a clear answer” and determined that Philadelphia did not treat CSS differently because of the agency’s religious beliefs.¹⁶⁷ The court did not find any evidence of religious hostility, as shown in Masterpiece Cakeshop, for example.¹⁶⁸ Rather, the court pointed to DHS Commissioner Cynthia Figueroa’s May 7, 2018 letter, which stated, “‘[w]e respect your sincere religious beliefs, but your freedom to express them is not at issue here where you have chosen voluntarily to partner with us in providing government-funded, secular social services,’” as proof that CSS’s treatment did not amount to the religious hostility present in Masterpiece Cakeshop.¹⁶⁹ Similarly, the court examined Commissioner Figueroa’s statement to CSS Secretary James Amato stating that “it would be great if we could follow the teachings of Pope Francis” to determine whether this statement contained religious hostility.¹⁷⁰ The court concluded that CSS presented this statement out of context, and it determined that Commissioner Figueroa made the comment in an effort to reach “common ground” during negotiations.¹⁷¹ Moreover, the court did not find evidence that Philadelphia targeted religion when Commissioner Figueroa contacted agencies with religious affiliations; rather, the court found that calling CSS and Bethany Christian Services made the most sense because they were the only agencies that Figueroa knew refused to certify same-sex couples.¹⁷² Therefore, the court was satisfied that hostility toward religious beliefs in Fulton was “significantly less than what was present in Lukumi or even in Masterpiece [Cakeshop].”¹⁷³

The court then considered whether the City of Philadelphia used a method of selective enforcement similar to the methods used in Fraternal Order of Police and Tenafly.¹⁷⁴ The court rejected CSS’s argument and explained that just because DHS previously lacked cause to enforce contractors’ adherence to the FPO’s anti-discrimination clause does not mean that DHS selectively enforced the clause against CSS because of the agency’s religious beliefs.¹⁷⁵ The court concluded that this was merely the first time that the issue of discrimination presented itself.¹⁷⁶

The court also considered whether the city “acted inconsistently” because the city allowed DHS to consider other protected classifications, such as race and disability, when making placements.¹⁷⁷ The court determined that “unlike CSS, [DHS] never refuses to work with individuals because of their membership in a protected class.”¹⁷⁸ Lastly, the court found no evidence that DHS allowed other contracting agencies to discriminate against classes that the FPO protects.¹⁷⁹

In sum, because the court did not find any evidence of religious hostility, selective enforcement, or operational exclusion in DHS’s treatment of CSS, the Third Circuit agreed with the district court’s “finding that CSS [] failed to demonstrate a sufficient likelihood of success on the merits of its Free Exercise Clause claim.”¹⁸⁰ The court summarized CSS’s argument as follows: “[T]he [c]ity is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the [c]ity is targeting CSS for its religious beliefs.”¹⁸¹ The court found this logic not only flawed but “dangerous,” as it contradicted the entire premise of Smith.¹⁸² Had the Third Circuit found the non-discrimination clause not neutral nor generally applicable, the court would have followed Lukumi and applied strict scrutiny.¹⁸³

Four years before the Third Circuit’s Fulton ruling, in Stormans v. Wiesman,¹⁸⁴ the Ninth Circuit considered a case regarding a religious objection to an industry-wide rule that raised similar issues as Fulton. The case involved pharmacists who had “religious objections to delivering emergency contraceptives.”¹⁸⁵ Applying Smith and Lukumi, the Ninth Circuit found that the rules requiring pharmacists to provide emergency contraceptives, among other products, were facially neutral and generally applicable.¹⁸⁶ When determining the neutrality of the laws, the Ninth Circuit first examined the facial neutrality, searching the rules at issue for textual references to religion.¹⁸⁷ The court concluded that because the rules did not reference religion in any way, they qualified as facially neutral.¹⁸⁸ The court then considered whether the rules were operationally neutral.¹⁸⁹ The court deemed the challenged rules operationally neutral, unlike the ones in Lukumi, because they pertained to all pharmacists and all prescriptions, not just emergency contraceptives.¹⁹⁰ Furthermore, the court found that the challenged rules “specifically protect[ed] religiously motivated conduct.”¹⁹¹

When considering general applicability, the court examined whether the rules sufficiently covered “non-religiously motivated conduct that might endanger the same governmental interest that the law is designed to protect,” and it found that the rules were not substantially underinclusive.¹⁹² Next, the Ninth Circuit examined whether a system of individualized exemptions existed and determined that “[t]he mere existence of an exemption that affords some minimal governmental discretion does not destroy a law’s general applicability.”¹⁹³ The court concluded that the government’s system of exemptions were not left to personal discretion; rather, the government outlined five specific exemptions based on “particularized, objective criteria” that pertained to the operation of a pharmacy.¹⁹⁴ Finally, the court examined whether the government non-selectively enforced the rules and, thus, neutrally applied them.¹⁹⁵ The court found the pharmacists’ selective enforcement argument unpersuasive because the government used a complaint-driven enforcement mechanism, and the government had not investigated Catholic pharmacies because no complaints had been filed against those pharmacies.¹⁹⁶

After finding that the rules were both facially and operationally neutral and generally applicable, the Ninth Circuit conducted a rational basis review of the challenged rules.¹⁹⁷ The court concluded that the rules were rationally related to Washington’s “legitimate interest in ensuring that its citizens have safe and timely access to their . . . medications.”¹⁹⁸ Although CSS asserts that the Third Circuit and the Ninth Circuit apply a narrow reading of the Smith neutral-and-generally-applicable standard, these circuits appear to consider the same factors as the six circuits on the other side of this supposed circuit split.

2. The six circuits & their application of Smith

In its petition for certiorari, CSS highlighted cases from the Second, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits that allow free exercise plaintiffs to present other evidence that a law is not neutral and generally applicable to prove free exercise violations.¹⁹⁹ CSS suggests that only the Sixth, Tenth, and Eleventh Circuits consider individualized exemptions when determining what level of scrutiny should apply.²⁰⁰ In Ward v. Polite,²⁰¹ the Sixth Circuit considered whether a school violated one of its master’s student’s First Amendment rights when it expelled her for requesting, because of her religious objection to same-sex relationships, to refer a gay student seeking counseling to another counselor. The school refused her request, citing its “blanket rule” against referrals despite having made exceptions to the rule for other students.²⁰² The court, following both Smith and Lukumi, found that “an exception-ridden policy [that] takes on the appearance and reality of a system of individualized exemptions . . . must run the gauntlet of strict scrutiny.”²⁰³ In Axson-Flynn v. Johnson,²⁰⁴ the Tenth Circuit recognized that, if a defendant, in this case a university, could prove that a required recitation, which was offensive to a student’s religion, was neutral and generally applicable under Smith, the student would have the opportunity to show that one of the two Smith exceptions applied and triggered strict scrutiny.²⁰⁵ Similarly, the Eleventh Circuit in Midrash Sephardi, Inc. v. Town of Surfside,²⁰⁶ following Smith and Lukumi, found that strict scrutiny applies when a law “fails to similarly regulate secular and religious conduct implicating the same government interests.”²⁰⁷ Relying on these cases, CSS concludes that these circuits interpreted Smith to mean that strict scrutiny should apply when a plaintiff presents evidence of individualized exemptions.²⁰⁸

While consideration of individualized exemptions has commonality with the Third and Ninth Circuits analysis, CSS also highlights that these other circuits consider the legislative history of the law at issue when determining what level of scrutiny to apply. For example, in Central Rabbinical Congress of the United States & Canada v. New York City Department of Health & Mental Hygiene,²⁰⁹ the Second Circuit determined that a New York regulation prohibiting oral suction during the circumcision procedure without written consent from the child’s parents was neither neutral nor generally applicable under Smith and Lukumi.²¹⁰ The court reached this conclusion after finding that the regulation, which New York enacted in response to Orthodox Jewish groups’ practices, “purposefully and exclusively” targeted Orthodox groups that perform the act of metzitzah b’peh.²¹¹ CSS interprets Central Rabbinical Congress to hold that laws “prompted” by particular religious groups or practices require strict scrutiny analysis.²¹²

Though not typically determinative on its own of whether a law is neutral and generally applicable, legislative and administrative history factors into several circuits’ analysis to determine the government’s intent in creating the law.²¹³ In Ward, the Sixth Circuit found that a post-hoc policy impeding a student’s ability to refer a client to another student counselor for faith-based reasons triggered strict scrutiny because the student’s religious accommodation request clearly prompted the policy.²¹⁴ In deciding St. John’s United Church of Christ v. City of Chicago,²¹⁵ the Seventh Circuit, in accordance with Smith and Lukumi, considered events that preceded the enactment of legislation, including a government taking of two cemeteries located on the church’s premises, to determine whether the legislation triggered strict scrutiny.²¹⁶ Similarly, in Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle,²¹⁷ the Eighth Circuit gave weight to legislative history when determining whether a law facially discriminated against religious nonmedical health care institutions.²¹⁸ Lastly, in Shrum v. City of Coweta,²¹⁹ the Tenth Circuit suggested that “[p]roof of hostility or discriminatory motivation” behind the law might be enough to prove that the government’s treatment of Shrum, the plaintiff police officer who was also a minister, lacked neutrality.²²⁰

D. Issue Two: Does the Court Need to Revisit Smith?

Despite clarifying cases, such as Lukumi and Masterpiece Cakeshop, CSS argues that the Court should revisit Smith.²²¹ CSS contends that the Third Circuit’s reliance on Smith exemplifies the conflict and confusion among the lower courts when determining how to properly apply Smith.²²² Finding that the Smith standard “has not delivered on its central promise” that governments would not use Smith to trample over religious exercise, CSS urges the Court to “restore free exercise to a more administrable rule that adequately protects a fundamental [F]irst [A]mendment right.”²²³

While it is debatable whether Smith has created confusion among lower federal courts, it is clear that many First Amendment scholars have strongly held criticisms of Smith.²²⁴ Some criticisms go so far as to say that the Smith opinion reduced free exercise of religion to a “second rate liberty.”²²⁵ Conservatives and religious groups comprise the majority of Smith’s critics²²⁶ and complain that Smith “drastically cut back on the protection provided by the Free Exercise Clause.”²²⁷ Some critics have even asserted that the Smith decision completely undercut the Framers’ intent when drafting the Bill of Rights.²²⁸ While some scholars agree with Justice Scalia that legislatures are the proper forums for deciding religious exemptions, others criticize his concession that “‘leaving accommodation to the political process will place at a relative disadvantage those religious practices’ engaged in by the minority.”²²⁹ Critics of Smith argue that this concession suggests severe shortcomings in the Smith approach.²³⁰

On the other hand, some scholars believe that Smith at the very least deserves recognition for doing away with the outdated and underused Sherbert test.²³¹ Another benefit of Smith’s neutral-and-generally-applicable standard is that it gave deference to legislative authority, as opposed to the Sherbert test, which stripped the legislature’s power.²³² The Smith standard also promotes judicial efficiency.²³³ By beginning the free exercise analysis with a neutral-and-generally-applicable standard, courts significantly curtail taxing litigation over gray areas, which the Sherbert balancing test previously invited.²³⁴

E. Issue Three: Whether Fulton Improperly Conditions Government Contracts on Agencies’ Adoption of Positions Contrary to Their Beliefs

The third issue that the Supreme Court will have to rule on is a familiar one, although CSS has framed it differently. CSS’s petition for certiorari asked the Court to consider whether the government can require a contractor to take actions that contradict its religious beliefs to participate in the publicly funded foster care system.²³⁵ Essentially, the Court must decide whether the government can condition public funding on the promotion, albeit tacit, of a specific ideology. The Court has considered this exact issue many times before, and it has noted that there is conflicting precedent.²³⁶

1. The right not to speak

The First Amendment provides that the government shall not make any laws “abridging the freedom of speech.”²³⁷ Additionally, the government may not compel anyone to speak.²³⁸ Like most constitutional provisions, the Free Speech Clause has exceptions.²³⁹

Boy Scouts of America v. Dale²⁴⁰ provided insight on the constitutionality of requiring an organization to project a position contrary to its beliefs. The Court did not have to consider government funding in Boy Scouts of America.²⁴¹ However, it did consider the constitutionality of forcing an organization to act in a manner contrary to the organization’s core beliefs.²⁴² In Boy Scouts of America, the Court held that it could not require the Boy Scouts to admit Dale, a gay man, under the New Jersey public accommodations law because doing so would violate the Boy Scouts’ First Amendment right to freedom of association.²⁴³ Because the Boy Scouts asserted that “homosexual conduct” was inconsistent with the organization’s values, “Dale’s presence in Boy Scouts would, at the very least, force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”²⁴⁴

2. The proper conditions for the conditioning of government funds on compelled speech

Rust v. Sullivan²⁴⁵ was one of the first cases to address the issue of conditioning government funds on compelled speech.²⁴⁶ In Rust, the Supreme Court upheld government-funding conditions that prevented grant recipient programs from informing their patients about abortion counseling and services.²⁴⁷ The Court reasoned that “[t]he condition that federal funds will be used only to further the purposes of a grant does not violate constitutional rights.”²⁴⁸ These conditions governed activities within the scope of the government-funded program; they did not restrict the activities or speech of employees of recipient programs as private individuals.²⁴⁹

Not long after Rust, the Court reaffirmed the notion that the government may condition the acceptance of government funds on compelled speech or non-speech in Legal Services Corp. v. Velazquez.²⁵⁰ In Legal Services Corp., the Court found that the Legal Services Corporation Act²⁵¹ facilitated private speech, as opposed to government speech; therefore, the compelled speech violated the Free Speech Clause.²⁵² The Court qualified its holding and explained that, as a consequence of government-disbursed funds, the government “may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.”²⁵³

More recently in Agency for International Development v. Alliance for Open Society International, Inc.,²⁵⁴ the Court further clarified the Rust principle.²⁵⁵ In Alliance for Open Society International, the Court held that compelling a potential public funding recipient to affirm a belief that is unrelated to the government program as a condition of receiving that funding violates First Amendment Free Speech Clause protections.²⁵⁶ While the government may condition government funding on compelled speech, the government may not force a funding “recipient[] to adopt the government’s views as their own.”²⁵⁷ Moreover, conditions are only acceptable when they are sufficiently related to the goals of the program.²⁵⁸ The policy at issue in the case required organizations receiving government funding under a since-repealed public health act to expressly oppose prostitution.²⁵⁹ Ultimately, the Court reiterated that the First Amendment “prohibits the government from telling people what they must say.”²⁶⁰ Thus, it found that the law’s conditions violated the First Amendment’s free speech protections because the anti-prostitution policy requirement compelled speech and lacked a nexus to the government program.²⁶¹

II. Analysis

This Part applies the foregoing case law to the three issues pending before the Supreme Court in Fulton and concludes that the Supreme Court should affirm the lower courts’ decisions and rule in favor of Philadelphia on all three issues. First, this Part compares the approaches of the circuit courts involved in CSS’s suggested circuit split and shows that a circuit split does not actually exist. Second, this Part explains that the Court should continue to first apply the Smith neutral-and-generally-applicable standard when evaluating Free Exercise Clause claims. Third, and finally, this Part argues that Philadelphia did not violate the First Amendment by requiring CSS to certify LGBTQ people as foster parents.

A. Issue One: A Free Exercise Circuit Split Does Not Exist

Despite CSS’s best efforts to show that the Third Circuit and the Ninth Circuit apply a narrower reading of Smith, a detailed evaluation of precedent shows that all circuits consider the same factors when determining whether a challenged law is neutral and generally applicable. CSS cobbled together components of opinions from various circuits to manufacture a circuit split in an effort to persuade the Supreme Court to overturn Smith, which only subjects “valid and neutral law[s] of general applicability” to rational basis review, and return to the Sherbert standard, which applied strict scrutiny to all Free Exercise Clause claims.²⁶² There is no confusion amongst the lower courts; all of the circuit courts involved in this “split”—Second, Third, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh—follow Smith and employ the neutral-and-generally-applicable standard as the threshold step in conducting a Free Exercise Clause violation analysis that considers several factors.²⁶³ As Philadelphia rightly points out, “[n]either the Ninth Circuit nor the Third Circuit has ever held that a free[]exercise plaintiff can prevail only by making ‘one specific showing: that the government would allow the same conduct by someone who held different religious views.’”²⁶⁴ CSS pits the Third and the Ninth Circuits against the six other circuits solely because these two circuits reached outcomes unfavorable to Free Exercise Clause plaintiffs; in both Fulton and Stormans, the laws at issue survived the Smith neutral-and-generally-applicable standard.²⁶⁵

First, in Stormans, the Ninth Circuit followed the rule that the Supreme Court announced in Smith and affirmed in Lukumi: “a neutral law of general application need not be supported by a compelling government interest even when ‘the law has the incidental effect of burdening a particular religious practice.’”²⁶⁶ In assessing the neutrality of the law at issue, the Ninth Circuit examined whether a system of individualized exemptions was in play and determined that no such system existed; the court’s examination of the law’s history further supported its conclusion that lawmakers were not motivated by anti-religious sentiment.²⁶⁷ Further, the court examined whether the requirement at issue applied to all prescriptions or just emergency contraceptives, something to which a religious person might object.²⁶⁸ When considering the general applicability of the rule, the Ninth Circuit looked for substantial under-inclusion of non-religiously motivated conduct, individualized exemptions, and selective enforcement.²⁶⁹

After careful examination of all of these factors, the Ninth Circuit deemed the regulation neutral and generally applicable; therefore, the court merely applied rational basis review.²⁷⁰ Not only did the Ninth Circuit clearly consider both factors that CSS urges the Supreme Court to consider—individualized exemptions and the history of the challenged regulation—but it also looked for signs of facial and operational neutrality, substantial under-inclusion, and selective enforcement.²⁷¹ The Supreme Court did not appear to have a problem with the Ninth Circuit’s application of Smith, as it denied the free exercise plaintiffs’ petition for certiorari in Stormans.²⁷²

Second, in Fulton, the Third Circuit also began its analysis with the Smith standard to determine whether the Services Contract and the FPO were neutral and generally applicable.²⁷³ Pursuant to Lukumi, the Third Circuit examined whether DHS treated CSS differently than it treated secular agencies.²⁷⁴ The Third Circuit did not find any evidence that DHS had treated CSS differently.²⁷⁵ Additionally, the court considered CSS’s argument that DHS had selectively enforced the FPO against it, but the court ultimately found this argument unpersuasive.²⁷⁶ Furthermore, the Third Circuit did not find any hostility that mirrored the hostility present in Masterpiece Cakeshop.²⁷⁷ The Third Circuit concluded its analysis by stating that the “fact that CSS’s non-compliance with the [c]ity’s non-discrimination requirements is based on its religious beliefs does not mean that the [c]ity’s enforcement of its requirements constitutes anti-religious hostility.”²⁷⁸

After weighing all factors, the Third Circuit concluded that the Services Contract and the FPO were neutral and generally applicable and that DHS’s enforcement of them did not violate CSS’s free exercise rights.²⁷⁹ The Third Circuit considered individualized exemptions, selective enforcement, allowance of the same conduct by secular parties, and hostility.²⁸⁰ The only factor that the Third Circuit did not examine that CSS urged it to consider was the history of the Services Contract and the FPO.²⁸¹ However, it is unlikely that consideration of the legislative or administrative history of the Services Contract and the FPO would have led the court to a different result.²⁸² The Services Contract and the FPO were in place well before DHS had knowledge of CSS’s discrimination.²⁸³ Moreover, the FPO explicitly protects against religious hostility²⁸⁴,which might even suggest that DHS sought to protect religion rather than attack it.

Like the Ninth and Third Circuits, the Second Circuit began its analysis of a challenged law—a New York Health Code regulation—with the Smith neutral-and-generally-applicable standard; however, unlike the Ninth and Third Circuits, the Second Circuit determined that the regulation at issue was not neutral and generally applicable.²⁸⁵ While the Second Circuit did not have enough information to make a determination on the general applicability of the regulation, which forbade oral suction during the circumcision procedure, it had enough information to assess the neutrality of the regulation.²⁸⁶ Examination of both the text and the government’s application of the regulation led to a clear finding that the regulation was not neutral under Smith.²⁸⁷ Thus, the Second Circuit instructed the lower court to apply strict scrutiny on remand.²⁸⁸

Similarly, the Sixth Circuit case that CSS points to also held that the challenged regulation did not meet the Smith neutral-and-generally-applicable standard.²⁸⁹ In Ward, the Sixth Circuit assessed a system of exemptions where a university permitted secular exemptions but did not grant a similar exemption to a student who refused to counsel LGBTQ clients due to her religious beliefs.²⁹⁰ The court determined that the university’s regulation of the anti-discrimination policy failed to meet the Smith neutral-and-generally-applicable standard.²⁹¹ Therefore, the university’s actions had to survive strict scrutiny review.²⁹² The remaining cases that CSS points to in its fabricated circuit split follow the same pattern as the Second Circuit and Sixth Circuit cases, finding that the challenged regulations did not meet the Smith neutral-and-generally-applicable standard and, thus, must survive strict scrutiny.²⁹³

Based on the foregoing analysis, it is curious why CSS pits the Third and Ninth Circuits against the Second, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits, as all of the circuits appear to allow free exercise plaintiffs to rely on the same forms of evidence.²⁹⁴ However, an examination of the outcomes of the cases that comprise CSS’s manufactured circuit split provides an explanation: CSS highlighted a number of circuit opinions that achieved its desired result—a finding of non-neutrality—to persuade the Supreme Court to find that Philadelphia enforced the Services Contract and the FPO against CSS in a non-neutral manner.²⁹⁵ Conveniently, the Third and Ninth Circuits determined that the laws at issue were neutral and generally applicable, while the Second, Sixth, and Eleventh Circuits determined that the laws at issue were not.²⁹⁶ Thus, the only difference between the approaches of the circuit courts is the outcome of each case. The Court, therefore, should see through this ruse and find that the circuits agree about the types of evidence that free exercise plaintiffs can rely on when proving that a challenged law is not neutral and generally applicable.

B. Issue Two: The Court Does Not Need to Revisit Smith

1. Smith has not generated confusion that requires its overruling

In its petition for certiorari, CSS urged the Court to revisit Smith because it “has fostered conflict and confusion among the lower courts.”²⁹⁷ However, as demonstrated in the previous Section, lower courts are not confused about how to apply Smith.²⁹⁸ CSS, like all other critics of Smith, argues that Smith “drastically cut back on the protection provided by the Free Exercise Clause.”²⁹⁹ Nonetheless, Smith should remain the threshold step for Free Exercise Clause claims, because while it reduced the initial standard of review from strict scrutiny to rational basis review, it did not foreclose all avenues to strict scrutiny review.³⁰⁰

If anything, the Court should simply clarify Smith’s exceptions, which allow for strict scrutiny review. There are three potential avenues to strict scrutiny: (1) under Lukumi, a strict scrutiny review of all regulations not found neutral and generally applicable under Smith,³⁰¹ (2) the “individualized exemptions” exception, which some refer to as the “Sherbert exception,”³⁰² and (3) the “hybrid rights” exception.³⁰³ While the Lukumi opinion clearly provides that laws that do not meet the threshold Smith standard must face strict scrutiny,³⁰⁴ the other two exceptions do not provide as clear of an answer.

The individualized exemptions exception to Smith appeared as dicta in the Smith majority opinion, where the Court stated that it would not apply Sherbert “beyond the unemployment compensation field.”³⁰⁵ Most scholars and courts have taken that key word “beyond” to mean that in Free Exercise Clause cases involving “mechanism[s] for individualized exemptions,” like Sherbert, government action must withstand strict scrutiny.³⁰⁶ The Court did not provide more information on the individualized exemptions exception in either Lukumi or Masterpiece Cakeshop. Thus, lower courts have treated cases involving individualized exemptions differently.³⁰⁷ On one hand, a narrow reading of this dicta in Smith would suggest that courts should only allow the individualized exemptions exception in cases involving unemployment benefits. On the other hand, a broad reading of this dicta in Smith would suggest that courts should apply the individualized exemptions exception any time a system of individualized exceptions is present. While the Supreme Court should not reconsider Smith, it should instruct the lower courts on how to apply the individualized exemptions exception, as these varying interpretations yield vastly different results.

Like the individualized exemptions exception, the Court introduced the hybrid rights exception as dicta in Smith.³⁰⁸ The Court merely stated that “it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.”³⁰⁹ The Court characterized this type of claim as a “hybrid situation.”³¹⁰ Many scholars and courts have read this dicta to mean that the Court created another exception—the hybrid rights exception—that requires strict scrutiny when a plaintiff makes a free exercise claim in conjunction with another constitutional claim.³¹¹ As with the individualized exemptions exception, the Court did not provide any indication of how to apply a hybrid rights exception in either Lukumi or Masterpiece Cakeshop. Thus, the issue that arises when a court applies the individualized exemptions exception applies to the hybrid rights exception, too, and arguably to a larger degree.

The Court never stated that strict scrutiny would apply in any case involving hybrid rights as it stated regarding the individualized exemptions exception; it merely stated that it could envision cases that present multiple issues.³¹² Yet some courts have applied strict scrutiny when First Amendment plaintiffs claim violations of multiple rights, such as freedom of speech and free exercise.³¹³ In Fulton, the Court should clarify whether Smith creates a hybrid rights exception. While the confusion surrounding the individualized exemptions and the hybrid rights exceptions requires clarification from the Court, no other confusion exists that would require the Court to revisit and possibly overturn Smith.

2. Stare decisis and judicial efficiency caution against revisiting Smith

Since 1990, Smith has served an unpopular but necessary role in First Amendment jurisprudence; as such, the Court’s overruling of Smith would present severe stare decisis concerns. The doctrine of stare decisis is “in English, the idea that today’s Court should stand by yesterday’s decisions.”³¹⁴ The Supreme Court considers “the quality of [the decision’s] reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision” when deciding whether to overrule a decision.³¹⁵ Applying these principles to Smith, the quality of the majority’s reasoning in Smith is sound.³¹⁶ The Smith rule is entirely workable, as all courts consistently apply it as the threshold step in a Free Exercise Clause analysis without problem or confusion.³¹⁷ Further, overruling Smith would risk inconsistencies with recent developments in case law that seek to safeguard protected classes, such as the LGBTQ community, against discrimination in other spheres.³¹⁸ The Court has had ample opportunity to overrule, limit, or modify Smith in the recent past, such as in Lukumi, Masterpiece Cakeshop, and Stormans, but it has not. Smith has governed Free Exercise Clause claims successfully for thirty years; there was no reason to overturn Smith in 2018 with Masterpiece Cakeshop, and there is no reason to overturn it now. The overruling of Smith at this point in our jurisprudence would result in an entire lack of predictability.

The predictability that Smith currently provides also substantially enhances judicial efficiency.³¹⁹ In Smith, Justice Scalia warned that “[a]ny society adopting [the “compelling interest” test] would be courting anarchy.”³²⁰ While the use of “anarchy” may appear hyperbolic, the courts have heard cases where plaintiffs argue for “constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”³²¹ Smith has stood the test of time, and it is clearly strong enough to resist meddling from special interest groups seeking to receive special treatment or exploit potential loopholes.³²²

Lastly, Smith bolsters the separation of powers principle. Reconsidering Smith would undermine the legislative process.³²³ No single person can be an expert of the central tenets of all religions, not even Supreme Court justices.³²⁴ Therefore, as so many justices have said before, it is not the Court’s place to determine what qualifies as a central tenet of each religion to discern whether a claim for religious exemption is proffered for legitimate religious reasons or to exploit a loophole.³²⁵ Courts should leave this duty to the one branch of government that truly represents the American people: Congress.³²⁶ Separation of powers is what our nation was built on; an overruling or reconsidering of Smith would require the Court to take on Congress’s role of adjusting laws to reflect society’s norms.³²⁷

C. Issue Three: Philadelphia’s Conditioning of Government Contracts on Actions Contrary to CSS’s Religious Beliefs Is Constitutionally Permissible

The Court has repeatedly held that the government may condition receipt of government funds on the professing of a belief that runs contrary to the belief of a recipient agency;³²⁸ the situation at issue in Fulton is in no way unique. Philadelphia did not violate the First Amendment when it conditioned CSS’s government contract on compelled anti-discrimination speech because the city provides public funding to CSS’s foster care agency operations. CSS’s publicly funded nature severely lessens the level of free speech protections afforded to it under the Constitution, as the government can regulate the messages that its publicly funded agents espouse.³²⁹

In its petition for certiorari, CSS relied heavily on Alliance for Open Society International—where the compelled speech fell outside of the scope of the government-funded program and thus was unconstitutional³³⁰—yet the facts of Fulton do not parallel that case closely enough to bind the Court. In fact, Fulton more closely resembles Rust. In Rust, the Court allowed the government to prohibit publicly funded programs from informing their patients about abortion services because the condition had a close nexus to the scope of the government program.³³¹ Moreover, the Court reasoned that the condition was acceptable because the recipients were only required to follow this condition when working at the program; the moment the recipients left their office, they could advocate on behalf of any of their beliefs.³³² Considering that the Philadelphia foster care system was oversaturated with children when the city contracted with CSS, Philadelphia had every interest to welcome and include all individuals seeking to serve as foster parents.³³³ By discriminating against same-sex couples, not only would Philadelphia, through CSS, reduce opportunities for children to obtain critical developmental support from foster parents, but it would also make the pool of potential foster parents less diverse.³³⁴ Thus, Philadelphia’s requirements for its contracting agencies had a sufficient nexus to the government program’s goals.³³⁵

In Legal Services Corp., the Court reiterated the long-held principle that the government may condition funds on certain compelled speech because it has the authority to ensure that a recipient of government funding does not distort the message that the government wants to profess with its program.³³⁶ Because it receives taxpayer money, CSS acts as an agent of the Philadelphia DHS. Therefore, if CSS refuses to certify same-sex couples as foster parents while the agency continues to participate in the Philadelphia foster care system, one can logically infer that Philadelphia does not support same-sex couples becoming foster parents. This clearly distorts the all-inclusive, anti-discrimination message that Philadelphia wants its agencies to convey.

Precedent requires the Court to find that Philadelphia may place conditions on CSS’s speech when CSS serves as an agent of the city. Finding otherwise not only would contravene free speech jurisprudence, but it would also likely result in Establishment Clause and Equal Protection Clause violations.³³⁷

Conclusion

The U.S. Supreme Court should affirm the Third Circuit’s ruling in Fulton v. City of Philadelphia. A central issue for the Court to consider—the circuit split on how to evaluate Free Exercise Clause claims—is nonexistent in practice because all circuit courts currently allow plaintiffs to proffer various forms of evidence to prove that a law is neither neutral nor generally applicable. Thus, despite CSS’s argument, Smith has not confused the courts, and its framework is the most efficient standard because it prevents courts from hearing claims for every conceivable exemption to government regulations. Further, Smith bolsters the separation of powers principle by allowing Congress to determine which religious tenets deserve exemption, thereby precluding judicial activism. Lastly, although Philadelphia’s Services Contract and FPO effectively compel speech, which the First Amendment typically prohibits, requiring non-discrimination is closely related to the objective of the government’s foster care system to place as many foster children in supportive homes as possible. Therefore, Supreme Court precedent condones this instance of compelled speech as a condition of participation in a government program. For the foregoing reasons, the Court should affirm the Third Circuit and rule in favor of Philadelphia on all three issues.

Employing Smith to Prevent a Constitutional Right to Discriminate Based on Faith: Why the Supreme Court Should Affirm the Third Circuit in Fulton v. City of Philadelphia

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