On June 17, the Supreme Court issued their opinion in Fulton v. Philadelphia, a case involving an adoption organization, Catholic Social Services (CSS), that refused service to LGBTQ+ prospective parents.
Under Pennsylvania law and Philadelphia ordinance, such discrimination was unlawful, and Philadelphia exercised its right to terminate its relationship with CSS, meaning that the city would no longer make referrals to the organization. CSS sued claiming that the decision violated their First Amendment rights.
The lower courts resolved the case under the widely accepted principle that the Free Exercise clause of the First Amendment does not create an exception to “generally applicable” laws. In other words, you can’t get away with murder by claiming that your religion made you do it.
However, the Supreme Court under Chief Justice John Roberts has over the last decade invented the doctrine of “religious freedom” in a series of cases involving religious organizations. In a column last year, I pointed out the limitations of this doctrine, and that attempting to apply it in this case would be a radical departure from an already radical and undefined legal doctrine.
In Fulton, Roberts provided one of his hallmark narrow decisions. Instead of throwing open the flood gates to legalized discrimination, Roberts tied himself in knots trying to argue that Philadelphia’s non-discrimination law was, in fact, not “generally applicable.”
On its face, the chief justice’s argument appears to be utter nonsense. Non-discrimination laws are, by their very nature, neutral and applicable to everyone. However, the chief justice hangs his hat on a small provision in the statute that allows the city’s human services commissioner to give exemptions in his “sole discretion.”
This provision, the chief justice argues, makes the law not generally applicable because it invites the government to make choices between whose discrimination is “worthy of solicitude.”
The chief justice’s explanation is extraordinary for a number of reasons. First, no party to the litigation ever raised this issue, a point that Justice Neil Gorsuch makes in a grudging concurring opinion. It is not only uncommon, but arguably unethical, for judges to manufacture legal arguments out of whole cloth like this in their decisions. Judges tend to limit themselves to the facts of the case and the arguments of the litigants.
Second, it is a novel argument. In holding that the power to give exemptions makes generally applicable law into discriminatory ones, the chief justice creates a brand new legal rule that is based neither in precedent, original meaning, or Constitutional text, nor does it rise from the lower courts where new legal interpretations often circulate for years or even decades before getting to the Supreme Court.
In short, the chief justice’s opinion is a startling departure from both liberal and conservative Constitutional interpretation and judicial norms.
The coalitions in the opinion are also surprising. Obviously, the unanimous vote in favor of CSS was unexpected, but within that vote, the court voted 6-3 in favor of a narrow opinion, with Justices Samuel Alito, Clarence Thomas and Gorsuch writing separately in favor of a radical expansion of the Free Exercise doctrine.
It’s impossible to know the motivations of the three liberal justices, but it seems unlikely that all three agreed with the chief justice’s novel new approach to First Amendment law. One possible explanation is that the liberal justices wanted to guarantee that the main opinion would be a narrow one.
If the three liberal justices had dissented, then the chief justice would have been left with only three votes for his narrow opinion, and Justice Amy Coney Barrett, who wrote a concurring opinion sympathizing with Alito, Thomas and Gorsuch, may have been a reluctant vote. If Barrett switched sides and the liberals dissented, then Alito’s radical expansion of the Free Exercise clause would have become the main opinion.
While we can only speculate about the court’s internal politics, the consequences of the Fulton decision are relatively clear. Laws all across the country that were previously believed to be “generally applicable,” including non-discrimination laws, will now be subject to challenge.
Legislatures will face pressure to make their laws more rigid, giving agencies and administrators far less discretion in implementation. This will almost certainly create more frustration for the individuals and businesses trying to comply, or operating in regulatory gray areas.
The decision also signals one more step toward legalizing discrimination against LGBTQ+ people. Even a narrow opinion like this one, moves the legal pendulum. Lower courts will now become more skeptical of non-discrimination laws, and more likely to side with anti-LGBTQ+ hate groups.
With hate crimes toward LGBTQ+ people on the rise and trans children being targeted in schools, the last thing we need is to be telling bullies that they can get away with it by claiming religious motives.
Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara Unviersity Law School. A member of the LGBTQ+ community, Vargas writes a regular column for San José Spotlight.