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Fulton quiets Tandon’s thunder: A free exercise puzzle

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

Jim Oleske is a professor of law at Lewis & Clark Law School. His research focuses on the intersection of religious liberty and other constitutional values.

Ten weeks ago, acting on an emergency application for injunctive relief in the COVID-19 case of Tandon v. Newsom, the Supreme Court issued an unsigned opinion that appeared to resolve one of the two major free exercise issues previously presented for the court’s consideration in Fulton v. City of Philadelphia. Prior to the pandemic litigation, many advocates were looking to Fulton with hopes that it would be the case in which the court would either (1) overrule Employment Division v. Smith, a landmark 1990 decision holding that the free exercise clause does not provide a right to religious exemptions from neutral and generally applicable laws, or (2) sharply limit the impact of Smith by turning a caveat the Smith majority used to distinguish a prior case — the “mechanism for individualized exemptions” reading of Sherbert v. Verner — into a broader “most favored nation” approach to religious-exemption claims. Under that second approach, even if a law widely applies to both secular and religious conduct, it would not be considered “neutral and generally applicable” for purposes of Smith if it contains any categorical exemptions that are deemed “comparable” to a requested religious exemption. Instead, the existence of any such exemptions for “favored” activity would trigger a presumptive right to a religious exemption that the government could only deny if it satisfied strict scrutiny. The five-justice majority in Tandon endorsed that approach, and at the time, I characterized the decision as “steal[ing] Fulton’s thunder.”

On Thursday, the Court issued its decision in Fulton, and while the unanimity of the judgment in favor of Catholic Social Services upended conventional wisdom, the narrow reasoning of the majority opinion did not deliver any additional doctrinal thunder. The court provided no further guidance on the most-favored-nation rule approved in Tandon, declining to even mention that case, and it avoided the question of whether Smith should be overruled. Instead, the Fulton court found that because Philadelphia’s contract with foster-care agencies includes a provision giving a city official “sole discretion” to make exceptions to the contract’s nondiscrimination rule, it establishes a “mechanism for individualized exemptions” that “invites the government to consider the particular reasons” for an agency’s noncompliance with the rule. Under those circumstances, pursuant to Smith’s reading of Sherbert, religious agencies that object to the nondiscrimination rule are presumptively entitled to an exemption. As I have discussed elsewhere, this “individualized exemption” rule “mirrors a rule familiar from the free speech context, where content-neutral permit requirements are generally allowed, but will be invalidated if they ‘delegate overly broad licensing discretion to a government official.’”

Justices Samuel Alito, Neil Gorsuch and Clarence Thomas, who would have overruled Smith in Fulton, expressed consternation at the narrow basis of the court’s opinion. Alito, joined by Gorsuch and Thomas, wrote in a concurrence that the decision “might as well be written on the dissolving paper in magic shops” because “if the City wants to get around today’s decision, it can simply eliminate” the sole-discretion provision in its contract. Similarly, Gorsuch noted that “with a flick of a pen, municipal lawyers may rewrite the City’s contract,” in which case nothing in the court’s opinion will prevent the city from applying its nondiscrimination rule to Catholic Social Services.

Curiously, although Alito, Gorsuch and Thomas were in the majority in Tandon, and although both Catholic Social Services and the Trump administration relied in Fulton on the broader most-favored-nation theory of religious exemptions, parts V.C.3 and V.C.4 of Alito’s concurrence in Fulton raise doubts about the administrability of the most-favored-nation approach. With no mention of Tandon, Alito highlights prior “confusion” in the lower courts about how many exemptions must be included in a law to render it not generally applicable, and he then notes the “hotly contested” splits both in the lower courts and between the justices in pre-Tandon COVID cases as to when existing exemptions should be deemed appropriate “comparators” to requested religious exemptions. This portion of Alito’s opinion, which goes a long way toward undermining the predicates for the most-favored-nation rule, may strike some as surprising given that Alito wrote two decisions while on the U.S. Court of Appeals for the 3rd Circuit that are viewed as leading most-favored-nation opinions. But he is not alone in shifting from an emphasis on the most-favored-nation rule to an emphasis on overruling Smith: The most prominent scholarly advocate of the most-favored-nation approach, Professor Douglas Laycock, wrote an amicus brief in Fulton urging the court to overturn Smith rather than rely on the most-favored-nation theory because “a threshold requirement to show that a law is not generally applicable vastly complicates every litigation.”

One wonders if Justice Amy Coney Barrett, another member of the Tandon majority, might also be concerned about the complications of the broad most-favored-nation rule announced in that “shadow docket” case — a case in which the justices did not have the benefit of full briefing or oral argument. Barrett’s concurrence in Fulton may well be the most consequential opinion of the four written, and it makes for an interesting juxtaposition with Tandon. Joined by Justice Brett Kavanaugh in full and Justice Stephen Breyer in part, Barrett expresses an openness to revisiting Smith in an appropriate case, but critically, she challenges the “prevailing assumption” that overruling Smith should mean adopting a “categorical strict scrutiny regime” for incidental burdens on religious practices. Instead, Barrett suggests a “more nuanced” approach informed by “other First Amendment” doctrines. For those of us who have urged the court to “seriously consider the nuances and middle-ground arguments” that “its sharply conflicting precedents” on free exercise exemptions “have steadfastly ignored,” Barrett’s opinion is a heartening sign that there may finally be a constituency on the court for doing exactly that.

But here’s the puzzle: As Professor Laycock has noted, the broad version of the most-favored-nation rule, which requires the application of strict scrutiny to the denial of religious exemptions so long as a law contains a single comparable secular exemption, will be implicated by most laws. (“[T]hink about it. If a law with even a few secular exceptions isn’t neutral and generally applicable, then not many laws are.”) And Tandon — which found shopping at retail stores to be “comparable” to holding prayer meetings in private homes — stretched the rule even beyond the bounds articulated by Laycock, who previously wrote in the COVID context that the “secular activities comparable to worship services are not retail stores, where few customers linger.”

Given the broad sweep of the Tandon majority’s most-favored-nation rule of strict scrutiny, if Barrett and Kavanaugh were committed to giving that rule full effect going forward, it would be difficult to make sense of the skepticism Barrett expresses in Fulton about moving to a strict scrutiny regime for religious exemptions. Which leaves the obvious question: Are Barrett and Kavanaugh really committed to giving Tandon full effect outside the COVID context? For the sake of an honest free exercise jurisprudence, we should hope the answer is “no.” As I wrote two years ago:

Unraveling the Smith rule may well be warranted, but the Court should not do it in the same disingenuous fashion that the Smith Court unraveled the Sherbert rule and that the Sherbert Court unraveled the [prior free exercise] rule. If the Court believes Smith was wrong to limit the Free Exercise Clause to a nondiscrimination rule, it should say so directly. If the Court believes the Clause is best interpreted as providing some measure of protection against burdens on religion flowing from indifference and unintentional neglect, it should develop a doctrine for addressing those burdens in all cases, not just cases that fit some Rube Goldberg exception to Smith.

Recommended Citation: Jim Oleske, Fulton quiets Tandon’s thunder: A free exercise puzzle, SCOTUSblog (Jun. 18, 2021, 4:20 PM),