The Overview (Tuesday, June 22)
The Supreme Court's decision in Fulton v. City of Philadelphia, keeping heaven central to Christian cultural engagement, a pastor reflects on QAnon, and more
Last week, the U.S. Supreme Court issued its long-awaited decision in Fulton v. City of Philadelphia. The case asked whether Philadelphia was justified in canceling Catholic Social Services’ foster care contract due to CSS’s position of not placing children with same-sex couples. The case was the latest iteration of the conflict between religious freedom and LGBT rights, conflict which has intensified over the past decade.
The fact that the Court ruled for Fulton wasn’t particularly surprising. What was surprising, though, was the unanimous, 9-0 decision. The Court’s three liberals joined the six conservatives in holding that Philadelphia’s policy was not, calling back to the language of 1990’s Employment Division v. Smith, “neutral and generally applicable.” As a result, the city’s decision to cancel CSS’s contract violated the First Amendment.
No matter how you slice it, this is a big win for religious freedom, continuing its impressive winning streak at the Supreme Court in recent years. However, the decision’s scope is limited, and will almost certainly invite challenges in the years ahead.
Despite the optimism that Fulton would be the vehicle to officially overturn the Smith framework and return to the compelling interest framework of Sherbert v. Verner, the Court didn’t go that far. Indeed, Chief Justice Robert’s unanimous opinion cited the language of Smith in ruling for Fulton and Catholic Social Services. In a recent piece for Christianity Today, I explained why Smith should be replaced:
The Smith ruling was bad for religious freedom. It deferred to the government when laws burdened people’s religious beliefs, transforming a First Amendment right into a privilege.
Essentially, under Smith, a law that has the effect of burdening a person’s sincere religious beliefs is not inherently constitutionally suspect, so long as the law applies to everyone equally. Following Fulton, this is still the framework by which courts will evaluate claims of religious freedom. And that’s problematic.
Importantly, despite the unanimous ruling, there is evidence that some justices were willing to go further and strike Smith altogether. Justice Alito’s concurring opinion explained that while he agreed with the judgment of the case, he was skeptical that the decision has any real lasting power so long as Smith remains the standard. “After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation,” he wrote, “the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”
Likewise, while Justice Barrett criticized Smith’s framework, she was unwilling to adopt a new standard through this decision. Because the outcome here would be the same regardless, she saw no reason to dive headfirst into a thorny maze of difficult questions; Catholic Social Services should win, and a future decision may tackle the limitations of Smith. Still, she seemed open to revisiting Smith in a future case.
Based on the concurring opinions in Fulton and on previous rulings involving religious freedom, it seems probable that the Court has a 5-4 (and perhaps even 6-3) majority to strike Smith in a future decision. For whatever reason, there was no appetite to do that here. Advocates for religious freedom must wait at least another year or two for the return of the compelling interest standard.
Until then, here’s the Tuesday, June 22 edition of The Overview:
1) I was traveling last week when Fulton came down, so I appreciated the following responses to the decision:
My friend Andy Lewis wrote an excellent article for The Atlantic describing the trajectory of religious freedom advocacy and the polarization shaping it:
Thirty years ago, a potential reversal of Smith would have been celebrated, especially by liberals. Today, conservatives are leading the charge to expand religious freedom and overturn Smith. Understanding why reveals the contours of a major transformation that American society has undergone over the past three decades.
Andy also wrote a piece for The Monkey Cage highlighting the potential for religious freedom to bridge the political divide:
When Americans read about religious minorities such as Muslims and Hindus claiming religious freedom rights, they are more likely to support religious liberty exemptions under the First Amendment, even when the question involves denying services to another historically marginalized group, gay men and lesbians. Democrats were more likely to support a small business’s refusal to serve same-sex clients after reading about a religious minority making a claim.
Writing for Kentucky Today, Andrew Walker argued that Fulton, though leaving Smith in place, is still a big victory for religious conservatives:
While religious liberty proponents will undoubtedly wish that the Court had chipped away at the Smith test that has hobbled religious liberty for over two decades now, we should still celebrate today’s ruling as a significant win. It’s hard to say what precedent this ruling will affect long-term, but we should pray that it has cascading effects elsewhere in demonstrating the intrinsic reasonableness of Christian viewpoints about sexuality and family.
2) Writing for Religion in Public, political scientists Jeremiah Castle and Kyla Stepp share new research on the role religion plays in the culture wars. They find that religion plays a significant role in structuring people’s views on issues like abortion, same-sex marriage, and church-state relations, but a much weaker one in explaining views on welfare programs and immigration; for these latter issues, it is other aspects of identity—like partisanship—that play a bigger role.
3) Samuel James, writing for his Insight newsletter, encourages Christians to keep an eternal perspective at the forefront of our cultural engagement. He writes:
Engagement of culture that is actively conscious of the eternal can raise its eyes above the weekly morass and stare at the perennial. Christians do not need the New York Times or The Atlantic to decide what ethical norms we should be defending in a given moment. Instead, we should and can think about humanity in eternal terms.
He continues:
Heaven’s victory is assured. The kingdom will come, and Christ’s will will be done. Political gains do not make this victory more imminent and political losses do not make it less likely. The marginalization of secularists will not trigger the promise of Christ to dwell with his people forever, and the ascendance of secularists will not thwart or delay the same. That means that tenderness is not weakness, and returning good for evil is not a “losing strategy.” Christians ought to defend civilization, but we are obliged to do it while carrying our cross, and to remember that the cross does not disadvantage us.
4) Finally, Benjamin Marsh, a pastor from North Carolina, offers his reflections on QAnon’s appeal to Christians. “Conspiracy theories require fertile soil,” he begins, observing that the church has become hospitable to these views for a variety of reasons, including the temptation to compare America to Israel, believing those with left-leaning views are in league with Satan, and the normalization of rejecting expertise. He ominously concludes:
Q is here. It is spreading. It is dividing families and ruining the gospel witness. No, it will not conquer, for not even the gates of Hell itself will stand against the Kingdom of God, but as an effective parasite it may well suck the life out of the church in America if we do not act.
This is a somewhat deflating piece, but it does implore Christians to act to defend the church against this danger. I’ll be sharing this with students in my “Misinformation and Conspiracy Theories” colloquium next semester.