Justice Amy Coney Barrett’s first week as an active Supreme Court justice began on Nov. 2 and almost immediately included a case that could test her credentials as a religious conservative.

On the surface, Fulton v. City of Philadelphia, which was argued in front of the court on Nov. 4, concerns whether the state can require organizations it partners with to accept same-sex couples as foster parents.

But underneath are questions about how Barrett and her fellow justices will deal with a decades-old Supreme Court ruling that could have wider implications for religious liberty cases.

Foster care

The case in front of the justices concerns how Philadelphia partners with private organizations – both religious and secular – to find homes for children in foster care. In 2018, Philadelphia learned that two organizations, Catholic Social Services and Bethany Christian Services, had religiously motivated policies against placing children with same-sex couples in violation of Philadelphia’s Fair Practices Ordinance.

Philadelphia stopped sending foster care placement requests to these organizations as a result, prompting Catholic Social Services to sue.

Lawyers for Catholic Social Services argue that Philadelphia’s response violates First Amendment protections of religion and speech. Two lower federal courts ruled in Philadelphia’s favor. It is now up to the Supreme Court to decide whether the lower courts got it right.

Based on the questions asked during oral arguments, Fulton could well be decided on technical grounds over whether Catholic Social Services is a contractor or licensee of Philadelphia. But from my perspective as an attorney and First Amendment scholar, Barrett’s questions during oral arguments are of significant interest in considering the future of First Amendment law as it pertains to religious freedom.

Specifically, they suggest that Barrett is examining a key piece of First Amendment precedent: Employment Division v. Smith.

Neutral and general

In Employment Division v. Smith, decided in 1990, the Supreme Court held that Oregon was not required to create an exception to its drug laws to permit the use of the hallucinogenic peyote in religious rituals. Central to the case was how to balance religious freedom with the rule of law.

In writing the court’s opinion in favor of the state, Justice Antonin Scalia recognized that without some kind of limit on the Constitution’s religious free exercise clause, laws could become meaningless.

He held that the Constitution does not allow religious adherents to violate a “neutral law of general applicability,” by which he meant a law that applies to everyone and does not favor or disfavor people based on their religion or lack thereof. Because Oregon’s law was neutral and generally applicable, the state’s refusal to exempt religious peyote use from its drug laws was deemed constitutional.

The Smith ruling has always been controversial, and many conservatives have long wanted the decision overturned.

But the Smith ruling has never been simply a left-versus-right issue. After all, its author was conservative stalwart Scalia, whom Barrett worked for as a law clerk. And even before her appointment, the Supreme Court’s conservative wing had the numbers to overturn Smith – if they so chose.

In addition, now that Smith has been precedent for over 30 years, justices who disagree with its reasoning face the issue of “stare decisis” – the well-established legal principle advocating against overruling past decisions whenever possible.

Notably, limitations on stare decisis were a reoccurring topic in Barrett’s scholarly writing during her time as a law professor.

Replacing Smith?

The lawyers for Catholic Social Services have argued that the Smith ruling should be overruled. In Nov. 4’s proceedings, Barrett gave substantial attention to this line of argument in her questions.

In questioning one of Catholic Social Services’ lawyers, Barrett asked, “What would you replace Smith with?” This question might suggest that Barrett views the arguments for overturning Smith as worth taking seriously.

Barrett also made the following remarks while questioning Catholic Social Services’ lawyer:

“You argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if you’re right about that, why should we even entertain the question whether to overrule Smith?”

These comments are important. Judges generally prefer to avoid overruling past decisions when a case can be decided for other reasons. Thus, even if Barrett were to think Smith is bad law, she might not advocate overruling it in Fulton if she thinks that Catholic Social Services can win on other grounds.

Barrett wasn’t alone in picking up on the Smith argument. Justice Stephen Breyer spoke in favor of Smith at the Nov. 4 hearing, saying it was “a solution to a problem that nobody could figure out how to answer.” This indicates that Breyer sees Smith as striking the right balance between religious freedom and the rule of law and that he is unlikely to support overruling it.

Thinking ahead

It is unlikely that Smith would need to be overruled in order for the court to overturn the lower court decisions and side with Catholic Social Services. Still, some think that Barrett and her conservative colleagues may be willing to overrule Smith at some point.

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After all, Justice Barrett herself has written that “stare decisis must be flexible in fact, not just in theory.”

If Smith is someday overruled, it would likely increase the ability of courts to provide religious organizations with exemptions that allow them to discriminate against LGBTQ people. But as I believe oral arguments in the Fulton case suggest, that may be the outcome even with Smith left in place.

Mark Satta does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.