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06/25/2021

John McGinnis on Fulton, Smith and Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: The Fulton Opinion and the Originalist Future of Religious Freedom.  Here is the introduction:

last week in Fulton v. Philadelphia, the Supreme Court held that Philadelphia violated the Free Exercise Clause when it declined to employ a Catholic provider of foster care services because of the charity’s refusal to certify same-sex couples as appropriate foster parents. The Court reasoned that, because Philadelphia was willing to consider exceptions to its contractual nondiscrimination requirement, its prohibition on discrimination was not a generally applicable rule. The law thus was not insulated from constitutional challenge by Employment Division v. Smith. That important case permits government rules to burden religious exercise, so long as they are generally applicable and not targeted at religion. While the majority’s opinion did not overrule Smith, two concurrences joined by five justices suggest that Smith is on life support.      

And from later on:

Despite the significance of the majority opinion in limiting Smith, much of the media commentary on Fulton has buried the lede. The concurring opinions show there are very likely five votes to overrule Smith. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, is explicit in his 77-page concurrence, discussed below. But Justice Amy Coney Barrett’s concurrence, joined by Justice Brett Kavanaugh, shows that at least two other justices are considering overruling the case as well. 

...

Alito’s opinion is avowedly originalist, emphasizing that he is relying on the original meaning of the Clause, which Antonin Scalia, the author of Smith and the most famous originalist in recent times, neglected. That Alito has so clearly nailed his colors to the mast of originalism is itself significant. He has not heretofore been the most avowedly originalist justice on the Court. But in a speech to the Federalist Society in November, Alito said that he believes originalism is now the parole of the law on the Court and he vowed to focus on getting the form of originalism right.

In Fulton, Alito relies on the original meaning of the text as the key to constitutional interpretation. He argues that Smith is not right because it imports a requirement of discrimination that is nowhere in the text. That text provides that “Congress shall make no law prohibiting the free exercise of [religion].” Alito considers the usage, including dictionary definitions at the time. He then argues that if we put these definitions together, the ordinary meaning of “prohibiting the free exercise of religion” was (and still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a far cry from the interpretation adopted in Smith. It certainly does not suggest a distinction between laws that are generally applicable and laws that are targeted.” Moreover, Alito correctly points out that it is anomalous to read a discrimination or equality requirement into the Free Exercise Clause, because none of the other provisions of the Bill of Rights has been understood to have such a component.

... [A]fter considering the dictionary definition of words, Alito invokes the legal context to support his reading of the Free Exercise Clause. For instance, he relies on clauses that protect religious exercise in state constitutions at the time of the federal constitution. He notes that these clauses frequently had the proviso that religious exercise would not be protected if it disturbed “the civil peace” or a similar formulation. Alito’s point here is that there would be little reason to include such provisos if the clause protected only against laws that discriminate against religion. 

In my view, such provisos and other similar limitations inferable from the legal context help with another problem in interpreting the Clause. It is not possible to interpret the Free Exercise Clause as a get-out-of-law-free card, whatever the law and whatever the religious practice. Satanic torture cults surely are not protected by the Constitution. And the legal context of Free Exercise shows that the meaning of the Clause—its meaning in the legal context—would not have required Courts to protect such kinds of observance from legal prohibitions....

A very important post, especially the last part, because as Professor McGinnis says, the key to getting the votes to overturn Smith is persuading Justices Kavanaugh and Barrett that there is a plausible originalist-grounded limiting principle allowing governments to regulate especially harmful religious practices.