Analyzing Fulton And Considering A Future Abortion Decision

The recent Supreme Court decision in Fulton v. City of Philadelphia, 593 U.S. ___ (2021), was a win for religious freedom. However, given the Court’s current composition of six Republican appointees and three Democratic appointees, the Fulton decision fell short of expectations.

In Fulton, the Court ruled unanimously that the city of Philadelphia had violated the Free Exercise Clause of the First Amendment by refusing to enter into a foster care contract with Catholic Social Services because the agency declined to place foster children in households headed by same-sex partners. The Court rendered its decision based on narrow grounds. Under Employment Division v. Smith,  494  U.S.  872 (1990), laws that place a burden on the free exercise of religion do not violate the Free Exercise Clause so long as they are neutral and generally applicable. In Fulton, the Court reasoned that the City’s foster care contract was not generally applicable because its ban on discrimination based on sexual orientation allowed for exemptions at the discretion of a government official. The Court’s narrow approach to the case allowed it to avoid addressing the larger tension between the free exercise of religion and laws that ban discrimination based on characteristics like sexual orientation and gender identity. This approach is reminiscent of the Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), in which the Court ruled in favor of a Christian baker who was sued for declining to bake a cake for a same-sex “wedding.” These types of decisions are characteristic of Chief Justice John Roberts, who typically prefers to avoid controversy.

Religious freedom advocates hoped that the Court would take the opportunity in Fulton to overrule the Smith decision and establish a new rule of law that is more protective of religious liberty. As Politico reported, Justice Samuel Alito issued a scathing opinion in Fulton in which he agreed with the outcome of the case but criticized the Court for making a narrow ruling “that seemed to him to be aimed at defusing political tensions rather than interpreting the law.” Justice Alito wrote: “‘After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.’” Justice Alito also contended that the decision was so narrow that the City could easily sidestep it, adding that the decision “‘might as well be written on the dissolving paper sold in magic shops.’” Justice Neil Gorsuch agreed, adding that ducking the larger constitutional question raised in the case meant that “‘these cases will keep coming until the Court musters the fortitude to supply an answer.’” While Justice Clarence Thomas agreed with Justices Alito and Gorsuch, Chief Justice Roberts—who penned the majority opinion—was supported by Justice Amy Coney Barrett and Brett Kavanaugh.

According to Politico, “the key fault line in the Supreme Court that Donald Trump built is not the ideological clash between right and left—it’s the increasingly acrimonious conflict within the court’s now-dominant conservative wing.” If this analysis is correct, that clash could have consequences for the abortion-related case of Dobbs v. Jackson Women’s Health. In Dobbs, half measures will not work; either the Court will overturn Roe v. Wade, Planned Parenthood v. Casey, and other cases establishing a so-called “right” to abortion or it will falter.