Back To the Battlefront on Religious Exemptions and Discrimination Law

The Supreme Court today agreed to review a challenge to Philadelphia’s policy of excluding Catholic Social Services from its foster care system because of its refusal to place children with same‐​sex couples. Fulton v. City of Philadelphia could potentially clarify the heated ongoing conflict over the rights of religious objectors in discrimination law. Potentially is the word because it’s far from clear on what issues the Court will choose to resolve the case.

It might focus on whether the city of Philadelphia overstepped the Court’s Masterpiece Cakeshop guidance by showing improper animus against religion, and if so whether it matters (as the Third Circuit thought it did) that the city would have turned away a secular agency that followed the same placement policy. Or, with more dramatic implications, the Court might revisit its Employment Division v. Smith precedent, which holds that the Constitution affords no right to religious exemption from otherwise neutral and generally applicable laws.

Note that Philadelphia was enforcing a local ordinance of its own making; the case is thus on a very different footing than if it were, say, a challenge to the Obama‐​era regulations (which HHS has since proposed to rescind) that tried to arm‐​twist all states and cities into adopting policies like Philadelphia’s. In the HHS episode, it was the liberal side of the controversy that was trying to impose a uniform standard from coast to coast; in this case, it is some conservative religious groups that hope to do that. Scott Shackford has more in a piece at Reason quoting my views, as does the Christian Science Monitor in a piece last week.

Separately, in a case this morning called Patterson v. Walgreen, Justice Samuel Alito wrote separately in an otherwise routine denial of certiorari, joined by Clarence Thomas and Neil Gorsuch, to say the Court should revisit its 1977 precedent in the case of Trans World Airlines v. Hardison, which held that the federal law prohibiting religious discrimination in employment does not require accommodation of a worker’s religious practice if doing so would saddle the employer with more than a “de minimis” burden.

I wrote about the Hardison precedent in my 2015 Cato Supreme Court Review article on the Abercrombie & Fitch hijab case: basically, Hardison let employers off easy, at the semantic cost of defining a term of art, “undue hardship,” in a way almost comically opposite to the way it has since come to be used in, say, ADA cases. One result is that religious discrimination complaints in the workplace, while growing, have not emerged as a massive headache for management, nor have they blown up as a series of regular culture war showdowns.

Just as with the better‐​known issue of RFRAs, or Religious Freedom Restoration Acts, the ideological polarities reversed over this period, with liberal forces, at first the strongest proponents of accommodation rights, turning into their strongest critics. Alito’s concurrence makes clear that more battles are likely to lie ahead– unless Congress chooses to change or clarify matters, as it could do quite simply any time by choosing to update the statute.