forum

This article is the first forum in the court Decide in Fulton v Philadelphia.

Jim Oleske is a professor of law at the Lewis and Clark School of Law. His research focuses on the intersection of religious freedom and other constitutional values.

Ten weeks ago, action was taken on the urgent application for injunctive relief in the COVID-19 case Tanton v Newsom, The Supreme Court issued an unsigned opinion that seems to resolve one of the two main issues of free exercise previously submitted to the court for consideration Fulton v PhiladelphiaBefore the pandemic litigation, many advocates wanted Fulton Hope that in this case, the court will (1) veto Employment Division v. Smith, A landmark 1990 decision stating that the free exercise clause does not provide religious immunity, is not subject to neutral and universally applicable laws, or (2) substantially restricts Smith By repost Smith Most of them are used to distinguish previous cases-interpretation of “individualized exemption mechanism” Shebert v. Verner -Adopt a broader “most-favored-nation” approach to religious exemption requirements.According to the second method, even if a law is widely applicable to secular and religious behavior, it will not be regarded as “neutral and universally applicable”. Smith If it contains any A classification exemption deemed “equivalent” to the requested religious exemption. Conversely, the existence of any such exemptions for “favored” activities will trigger a presumptive religious immunity, which can only be denied by the government if it satisfies strict scrutiny.A majority of five justices tank In favor of this approach, at the time I described the decision as “steal[ing] FultonIt’s thundering. “

On Thursday, the court FultonAlthough the verdict of unanimous support for Catholic social services subverted conventional wisdom, the narrow reasoning of the majority opinion did not cause any additional doctrinal sensation. The court did not provide further guidance on the most-favoured-nation treatment rule approved in 1999. tank, Even refused to mention the case, and avoided whether Smith Should be rejected. in contrast, Fulton The court found that because Philadelphia’s contract with foster care institutions contained a clause that gave city officials “full discretion” to make exceptions to the contract’s non-discrimination rules, it established a “personalized exemption mechanism” to “invite the government “Considering a specific reason” means that the organization does not follow the rules.In this case, according to Smith‘S reading Shebert, Religious institutions that oppose non-discrimination rules are presumed to be entitled to immunity.As i discussed elsewhereThis “personalized exemption” rule “reflects the familiar rules in the context of freedom of speech. Content-neutral licensing requirements are usually allowed, but if they’delegate too broad licensing discretion to government officials’, they should The rules will be invalid.”

Judges Samuel Alito, Neil Gothatch and Clarence Thomas, they will veto Smith in Fulton, Expressed shock at the narrow basis of the court’s opinion. Alito, along with Gorsuch and Thomas, wrote that the decision “may wish to be written on the dissolution paper of the Magic Shop” because “if New York City wants to bypass today’s decision, it can simply eliminate” the only discretionary power. The stipulations in the contract. Similarly, Gorsuch pointed out that “a municipal lawyer can rewrite a New York City contract with a single flick.” In this case, the court’s opinion will not prevent the city from applying its non-discrimination rules to Catholic social services.

The strange thing is that although Alito, Gorsuch and Thomas are in tank, Even though Catholic Social Services and the Trump administration both rely on Fulton Regarding the broader MFN religious immunity theory, Alito agrees to the VC3 and VC4 parts Fulton Question the manageability of most-favored-nation treatment.No mention tankAlito emphasized the previous “confusion” in the lower courts, that is, how many exemptions the law must contain in order to make it not universally applicable, and then he pointed out the “violent dispute” between the lower courts and the examining judge.tank COVID cases on when the existing exemption should be considered an appropriate “comparator” to the requested religious exemption. This part of Alito’s view greatly undermines the predicate of the most-favoured-nation rule, which may surprise some people as Alito writes two Decide In the US Court of Appeals for the Third Circuit, it is regarded as the leading most-favored nation opinion. But he is not the only one who has shifted from emphasizing the most-favored-nation rule to emphasizing the veto. Smith?Professor Douglas Lecock, the most outstanding academic advocate of the most-favored country, wrote an article About Friends of the Court in Fulton Urge the court to overturn Smith Rather than relying on the most-favoured-nation treatment theory, because “threshold requirements that show that the law is not universally applicable make every litigation very complicated.”

Someone wants to know if Judge Amy Coney Barrett is another member of the committee tank The majority may also worry about the complexity of the extensive most-favoured-nation rule announced therein “Shadow File” Case-a case where the judge did not receive the benefit of a complete briefing or oral argument.Barrett’s consent Fulton Probably the most important of the four written opinions, which is related to tank. Barrett joins in part with Justices Brett Kavanaugh and Justice Stephen Breyer, expressing willingness to re-examine Smith Under the right circumstances, but crucially, she challenged the “universal assumption”, which is to reject Smith It should mean adopting an “absolutely strict censorship system” for the incidental burden of religious activities. Instead, Barrett suggested adopting the “more nuanced” approach provided by the “other First Amendment” doctrine.For those of us urge The court “seriously considered nuances and middle ground arguments”, that is, “its “serious conflicting precedents” on the free exercise of immunity “resolutely ignored.” Barrett’s opinion is an encouraging sign that the court may eventually have One constituency.

But here is a problem: as Professor Lecock said famous, The broad version of the most-favoured-nation rule requires strict scrutiny of refusal of religious immunity as long as the law contains a single comparable secular immunity. Most laws will involve it. (“[T]Think about it. If laws with some secular exceptions are not neutral and universally applicable, then not many laws are neutral. “)with Dandong—— It found that shopping in a retail store was “similar” to holding a prayer meeting in a private home—even beyond the boundaries set out by Lacock, who had previously COVID background “Secular events comparable to worship services are not retail stores, and few customers linger.”

Given the extensive tank Most of the most-favoured-nation most-favoured-nation rigorous review rules, if Barrett and Kavanaugh are committed to making the rules fully effective in the future, then Barrett’s suspicions will be difficult to understand Fulton Regarding the rigorous review system for the shift to religious immunity.This leaves an obvious question: Barrett and Kavanaugh are really committed to giving tank The full impact outside the COVID environment? In order to exercise jurisprudence honestly and freely, we should hope that the answer is no.Just like me wrote Two years ago:

Untie Smith The rules may be legitimate, but the court should not do it in the same dishonest way Smith The court deciphered Shebert Rules and Shebert The court deciphered [prior free exercise] rule.If the court considers Smith Limiting the free exercise clause to non-discriminatory rules is wrong and should be stated directly. If the court believes that the clause is best interpreted as providing some degree of protection against the burden of religion due to indifference and inadvertent neglect, it should develop a principle to address these burdens in all cases, not just Some exceptions apply to Rube Goldberg. Smith.