forum

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

Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas (Minnesota). Douglas Laycock is the Robert E. Scott Distinguished Law Professor at the University of Virginia.

Fulton v. Philadelphia It is an important victory for religious freedom. Philadelphia shall not terminate its foster care contract with the Catholic Ministry of Social Services on the grounds that CSS refuses to certify same-sex couples as adoptive parents because of their religious beliefs. The doctrines about sex and marriage are at the core of many religions. The same is true for service work. If a religion loses its ability to serve because it acts in accordance with its central doctrine, the harm to the exercise of freedom is serious. The court prevented this here-the result was unanimous.

Fulton Rules applied Employment Division v. Smith: If the law is neutral and universally applicable, it may bring a burden to religion, but if it is not, then the religious burden must be justified by convincing government interests. Fulton clarify Smith In a way of strengthening protection.

The court made it clear that universal applicability is a different requirement from neutrality; both must be met. It believes that if a rule gives officials the discretion to allow exceptions, even if the officials never grant any exceptions, the rule does not meet universal applicability: the discretion leads to discrimination against religion. The government cannot discriminate just because it sets rules for contractors instead of regulating the public.

Fulton It also clearly pointed out that the civil rights law does not automatically serve compelling government interests under any circumstances. Importantly, the liberals joined this holding.

These points are very important. However, the reservation of general applicability depends on the specific characteristics of the Philadelphia rules. Cities can rewrite their rules and eliminate discretionary exceptions, perhaps satisfying universal applicability.

The restriction on holdings caused an attack by Judge Samuel Alito, who (joined by Judges Clarence Thomas and Neil Gorsuch) believed that the court should veto Smith And strictly review the generally applicable laws.Justices Amy Connie Barrett and Justice Brett Kavanaugh wrote separately: “It is difficult to understand why the free exercise clause…can only provide protection against discrimination.” So the five justices said Smith Wrong, there may be more.

Barrett and Kavanaugh close behind Smith This is because, they say, they are not sure what will replace it. They do not need to veto it; generally applicable reasons are available.But some situations will mainly depend on the challenge Smith, Including a Pending certificate application A construction contractor refused to obtain a state permit because he had religious objections to the requirement to provide a social security number.

The court can veto Smith Before it solves each subsequent problem. But we want to start solving Barrett’s problem. We believe that when a generally applicable law imposes a significant burden on religion, the mandatory benefit test should usually be applied. This test applies to the heavy burden of several other basic rights, and it is correct to believe that only preventing major harm can be a reason for prohibiting religiously motivated behavior.

A convincing interest test may not be suitable for all situations.Laws that seriously interfere with the internal governance and decision-making of religious organizations, such as the choice of their leaders, are absolutely forbidden in Hosanna Tabor The decision mentioned by Barrett. But we don’t think that testing should be much weaker than “convincing interest.”

Barrett pointed out that when a generally applicable law affects speech or gatherings, the court uses a “more subtle” approach than strict scrutiny.She may be referring to United States v. O’Brien, It applied such a weak intermediate review that the court accepted a barely reasonable basis to punish protesters who burned their draft cards. But another decision to show behavior, Boy Scouts of America v. Dell, Using strict censorship that the Boy Scouts cannot be forced to accept openly gay Boy Scouts.The court stated that the non-discrimination law Dell “Directly and immediately affect the right of association,” while the draft law “only accidentally affects the freedom of speech of those who happen to use the law in violation of the law as a symbol of protest.”

The difference pointed out by the court seems to be that the prohibition of symbolic acts leaves many other ways to express the same opinion. The court also allowed content-neutral restrictions on speech, provided-but only if-they left enough alternative communication channels.The prohibition of religious activities is usually more like the law of the United States Dell: They have no other way to follow the practice discussed. If you face severe punishment for sticking to your religious creed, there is no answer to saying that you can still follow other creeds.If you are prevented from engaging in some form of religiously motivated service-such as CSS placement of foster children, or Catholic progressives provide food and water to undocumented immigrants -There is no answer to say that you can provide different forms of service. Religious practices are irreplaceable, and assessing whether they are close enough will cause the court to make difficult religious judgments based on the wrong premise.

Barrett cited a pre-Smith Decided, Gillette v. United StatesThis speaks of “substantial” rather than “mandatory” government interests.And a serious intermediate review would be far better than SmithGive up the review altogether.The danger is that intermediate reviews often turn into excessive compliance, such as O’Brien.

Key points, such as Fulton To emphasize again, “[r]In addition to relying on “widely formulated interests,” courts must also “review[] The harm claimed by a specific immunity is granted to a claimant of a specific religion. ‘” Exemptions are applicable properties; they allow the advancement of the law in most cases while protecting religious freedom in certain applications. The interests on which drug laws are based may often be convincing, but they are not. The court found, Which is suitable for restricting the use of drugs in worship services. The benefits on which non-discrimination laws are based may usually be convincing, but when there are multiple options for opposing religious providers, or when so-called discrimination occurs within the church, this possibility is unlikely.

This analytical structure led Congress to discover when enacting the “Religious Freedom Restoration Act” that the mandatory interest test “struck a reasonable balance” between religious freedom and government interests. many Learn confirm RFRA’s protection of religion is far from absolute. Religious activities include behavior, and the government usually has compelling reasons to regulate behavior rather than regulate speech. If applied based on these considerations, compelling interest is a viable criterion.