Is the Relationship Between Religion and Employment About to Change?

The Supreme Court of the United States handed down an important decision this past term regarding the intersection of religious liberty and discrimination. In Fulton v. City of Philadelphia, the Court narrowly ruled that Philadelphia’s decision to cease referring children to the Catholic Social Services (“CSS”) based on their refusal to certify same-sex couples as foster care providers was impermissible. In short, the Court ruled that because the city’s commissioner of human services had leeway to grant exceptions, the law violated the general applicability standard set forth in Employment Division v. Smith.

Smith, seen as a direct attack on freedom of religion, has long been the target of conservative ire, despite the fact that it was penned by Justice Scalia. In that case, Smith and a co-plaintiff were terminated for ingesting peyote as part of a Native American Church ritual. Because it was illegal to possess peyote, the claimants were denied unemployment benefits. The claimants challenged this decision, arguing the law violated the First Amendment Right to freely exercise their religion. Justice Scalia ruled that because the ban on possessing peyote was not targeted at a religion, but was a “neutral law of general applicability”, it did not encroach on Smith’s First Amendment Rights. In short, religious motivations cannot be used to exempt oneself from generally applicable laws.

Writing for the majority, Chief Justice Roberts held that while promoting anti-discrimination policies is a compelling government interest, the exceptions provision made it so the law was not neutral and generally applicable. Therefore, the law violated Smith. In other words, the majority found that because the law allowed for exceptions, Philadelphia was burdening CSS’s free exercise of religion by not granting it an exception.

In writing a 77-page concurrence, Justice Alito, joined by Justices Gorsuch and Thomas, eviscerated Smith and noted that, based on the majority opinion, to cancel the contract with CSS, Philadelphia would simply have to remove the ability to grant exceptions. He argued that Smith should be overruled and replaced with a strict scrutiny standard: any law that opposes a substantial burden on religion must be narrowly tailored to serve a compelling government interest.

The only reason that the Fulton Court did not overturn Smith was because Justices Barrett and Kavanaugh did not think a strict scrutiny standard applied the appropriate nuance to the intersection of religion and generally applicable laws. The two Justices balked at overturning Smith because there would be “a number of issues to work through” had they done so. Justice Barrett appeared to signal that if these issues were addressed, she and Justice Kavanaugh would join Justices Alito, Gorsuch, and Thomas in overturning the case.

What will this mean for employment law? While unclear, it is likely that if the Court were to overrule Smith, a number of religious organizations would be ready to file suits challenging most discrimination laws. It is also possible that this would lead to a general exemption from Title VII, the ADA, and state and local anti-discrimination laws for all employers with some form of religious connection. Currently, the only exception from these laws is ministerial exemption, removing religious-based employers from discrimination laws when hiring and firing employees in positions that serve an important religious function (e.g. a priest, a music director, a religion teacher). If Smith were to be overruled, then one could easily imagine the Supreme Court finding that requiring a religion to not discriminate against non-ministerial employees could be a burden to its exercise.

In general, if the Supreme Court were to continue down the path laid out by the concurrences in Fulton, it would be putting religious freedom in a stronger position to carve out exemptions to an untold number of neutral and generally applicable laws. Employment law would be one of the most hotly contested areas; therefore, employment lawyers and Human Resources personnel should pay close attention to these issues in the coming years.

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