Jacob Hoback, Associate Member, University of Cincinnati Law Review
The First Amendment of the U.S. Constitution prohibits the government from “respecting an establishment of religion, or prohibiting the free exercise thereof.” Under modern free exercise jurisprudence, a law that substantially burdens a religious practice is constitutional if the law is neutral and generally applicable. Questions of neutrality and general applicability extend beyond the face of the law. For example, suppose a state legislature passed a law prohibiting drinking alcohol on Sundays to combat a disproportionate amount of drunk driving accidents. While this would create a substantial burden for religious communities that use wine in their services, the law would not be a violation of the free exercise clause, since the law is neutral and generally applicable. Now, suppose that a section of the statute allowed the governor to have discretion to exempt organizations from following the order, and the governor extended the exemptions to various fine dining establishments but not to religious observers. Would the law still be constitutional?
This question has been answered differently among circuit courts. Three circuit courts have concluded that it would likely be unconstitutional, and two circuit courts have concluded that it would likely be constitutional. Under the majority approach, a law is unconstitutional if “the law appears to be neutral and generally applicable on its face, but in practice is riddled with exemptions.” In the hypothetical case described above, the law does not patently target religion, but the government has extended exemptions to other secular organizations. Therefore, under the majority approach, the law would be unconstitutional.
In contrast, under the minority approach, a law is unconstitutional only if the plaintiff can prove that the government would allow the same conduct by someone who “held different religious views.” In other words, the law would only be unconstitutional if it allowed Anglicans to use wine in their services but not Catholics. In the hypothetical, the law did not appear to favor one religious group over another religious group engaging in the same conduct. Therefore, the law would be constitutional under the minority approach.
This upcoming term, the Supreme Court has an opportunity to resolve the split in Fulton v. City of Philadelphia. This article will address why the Court should adopt the majority approach. Section II will explain the basic framework of free exercise jurisprudence; Section III will explain the facts and lower court rulings of Fulton; and Section IV will argue why the Court should adopt the majority approach.
Employment Division v. Smith held that religious observers are not exempt from laws that would compel them to forsake their religion if the laws are neutral and generally applicable. However, some laws are neutral and generally applicable on their face but, in practice, exist only to burden religious groups, particularly laws with exemptions that do not extend to religious observers. The law challenged in Smith was neutral and generally applicable on its face and in practice. Consequently, this raises an important question: When a law is neutral and generally applicable on its face but not in practice, what are the requirements for a free exercise plaintiff to prevail under Smith?
A. Employment Division v. Smith
The most fundamental principle of free exercise jurisprudence is that laws that are neutral and generally applicable are constitutional. In Smith, two Native American Church members were fired from their jobs for ingesting peyote in a religious setting. After their termination, they sought unemployment benefits but were ultimately denied because they were discharged from their jobs for work misconduct, having violated state law in consuming the drug.
Writing for a 7-2 majority, Justice Scalia held that the denial of unemployment was constitutional since the law was neutral and generally applicable. The Court reasoned that the government would be violating the free exercise clause if it banned acts or abstentions tailored to a particular religion, but since the law was neutral and generally applicable, it did not violate the plaintiff’s free exercise of religion.
Justice Black dissented, fearing the result of the new rule in Smith for religious minorities who would be subject to laws governed by the majority. He reasoned that the Native American Church members had sincere beliefs that the peyote they consumed would embody their deity. Moreover, he explained that if the state could constitutionally prosecute members of a marginalized faith under Smith for their worship, then the religious minorities might be “forced to migrate to some other and more tolerant religion.”
B. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah
The inquiry of neutrality and general applicability goes beyond the law on its face. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the government passed a law prohibiting animal cruelty. Ostensibly a neutral and generally applicable law, legislative history proved that the law targeted the religious practice of the Santerians, a religion from western Africa. In Hialeah, Florida, a congregation of Santerians opened a church. The president of the church announced that the goal of the church was, among other things, to practice the Santerian faith, including its practice of animal sacrifice. The announcement caused great concern among the citizens of Hialeah. Consequently, members of the community gathered and sought to prohibit the Santerians from practicing animal sacrifice in their city. Accordingly, the city council passed an ordinance making it unlawful for any person to kill any animal within the city. However, the ordinance also included an exemption for the killing, processing, and selling of animals for food.
When the church sued to overturn the law, the city argued that the law was not a free exercise violation since the law was facially neutral and generally applicable. The Court rejected this argument, explaining that the free exercise clause prohibits “covert suppression of particular religious beliefs.” Given the timing of the ordinance, the comments made during the city council meetings, the comments made by other government officials, and the exemptions for secular conduct, the Court found that the ordinance was not neutral and generally applicable in practice. Therefore, the Court held that the ordinance was unconstitutional.
C. The Circuit Split
Circuit courts differ on what a free exercise plaintiff must prove to prevail under Smith. The Sixth, Tenth, and Eleventh Circuits hold that exempting secular conduct but not religious conduct is unconstitutional. The Third and Ninth Circuits take the test one step further; they require a plaintiff to prove that the government would allow the same behavior by someone with different religious beliefs.
1. The Majority Approach
Under the majority approach, a free exercise plaintiff can prevail simply by showing that the government permitted secular exemptions but not religious ones. For example, the Sixth Circuit found that a school policy prohibiting students from refusing to counsel clients because of religious objections but not certain secular ones was unconstitutional. There, the plaintiff, whose faith prevented her from endorsing same-sex relationships and other heterosexual conduct, was in a graduate-level counseling-degree program. In her last year of study, she took an experiential learning course in which the school designated her to counsel a homosexual client. The plaintiff asked if the university could refer her to a different client, and in response, the university expelled her from the program for violation of the American Counseling Association’s ethics by discriminating on the basis of sexual orientation. The code of ethics, however, allowed “values-based referrals.”  For example, a counselor could refer a terminally ill client due to the counselor’s “personal” and “moral” views if the client wanted to explore end-of-life options.
Relying on Lukumi, the court held that although the policy was neutral and generally applicable on its face, it was “ridden” with exceptions, which is “the anthesis of a neutral and generally appliable policy.” Therefore, the court held that the policy was unconstitutional under the free exercise clause.
2. The Minority Approach
Under the minority approach, a free exercise plaintiff must be able to prove that the government would have treated a free exercise plaintiff less favorably than a religious observer of a different faith. The Third Circuit in Wiesman found unconstitutional a Washington policy requiring licensed pharmacies to deliver contraception that extended exemptions for secular reasons but not religious ones. There, the plaintiffs were pharmacists who refused to deliver Plan B for religious reasons. The Washington Pharmacy Quality Assurance Commission prohibited licensed pharmacies to deny delivery of prescription medications for certain business reasons, such as fraud or inability to pay. Pharmacists who objected to certain medications for religious reasons could also deny delivery if another pharmacist could deliver the medication. However, if a religious pharmacist was the only one working, the pharmacist had to deliver all prescription medications, including those the pharmacist had a religious objection to. On the other hand, the law had a referral policy allowing for individualized referrals. The referrals were available to support the secular interests of the patients and pharmacies, but such referrals were not available for pharmacists with religious objections. Nevertheless, the Third Circuit reasoned that since the rule and its secular exemptions applied to everyone, the law was neutral and generally applicable, thus constitutional under Smith.
III. Fulton v. City of Philadelphia
On February 4, 2020, the Supreme Court agreed to hear Fulton v. City of Philadelphia, Pennsylvania. At issue is whether laws that extend individualized exemptions for secular justifications, but not religious ones, are constitutional.
A. The Facts
Catholic Social Services (“CSS”) provides foster care services in Philadelphia (“the City”). CSS views providing homes for underprivileged children as a core value of Christianity. The City’s foster care system helps place individual foster families with children. For more than 100 years, it has had a contractual relationship with CSS, renewed on an annual basis, whereby the City compensated CSS for its services. The contract included a provision (“Provision 3.21”) that prohibited CSS and other agencies from discriminating on the basis of race, color, religion, natural origin, or sexual orientation. However, the policy allowed for individualized exemptions from Provision 3.21 for secular reasons such as “fit” with foster parents. CSS claimed that its religious views prohibit certifying a same-sex couple as foster parents. While the statute allowed individualized exemptions for secular reasons, the City did not allow religious exemptions. In March 2018, the City Council passed a resolution to investigate potential discriminatory practices among the foster agencies. Thereupon, the City refused to renew its contract with CSS, since CSS refused to violate its religious principles.
B. The District Court’s Ruling
When CSS challenged the policy in federal court, the district court held that the policy was constitutional. CSS argued that the City allowed exemptions for secular reasons, such as proximity, behavioral needs, and other areas. However, the court ruled that the City effectively did not make any organization exempt from the policy. The court explained that the City allowed secular exemptions, but it did not condone using the exemptions as a means of refusing to work with couples because the parents were members of a protected class under the policy, the type of conduct in which CSS is engaged. Therefore, since the policy was not a means of obtaining an exemption to refuse a couple, the district court held that the referral policy was not unconstitutional.
C. The Third Circuit’s Ruling
On appeal, the Third Circuit asked a different question: “Did [the City] treat CSS worse than it would have treated another organization that did not work with same-sex couples as foster parents but had different religious beliefs?” The court reasoned that to prevail under Smith, CSS must show that the government treated it more harshly than someone who engaged in the same conduct but held different religious views. To prevail under this test, CSS would have had to prove that the City would have treated a foster agency with different religious beliefs differently than CSS. Nevertheless, the City was free to create exemptions for individuals with different secular preferences. Therefore, the Third Circuit held that the City did not violate CSS’s free exercise of religion. The petitioners appealed, and the Supreme Court granted certiorari to decide the case in the Court’s 2020 term..
Two remarkably different schools of thought exist in understanding what Smith established. Under Smith, even when a law is neutral and generally applicable, individualized exemptions render the law unconstitutional. The question is, then, what kind of exemptions are prohibited? The minority approach holds that the only exemptions that are prohibited are those that exist for some religious groups but not for others. The majority approach, however, prohibits the government from extending any exemption that is also not extended to religious observers.
The minority approach strays far away from Smith and its progeny. If the Supreme Court adopted the minority approach, it would create an even greater burden for religious minorities, aggravating a legitimate fear by jurists such as Black. The minority approach is predicated upon the belief that Smith protects only religious groups who were not extended an exemption that was otherwise offered to other religious groups. Smith, however, is more favorable for religious observers than that. Smith protects religious groups who were not extended an exemption that was otherwise offered to anyone, secular or religious.
A. Revisiting Lukumi
Analyzing Lukumi under this light, one must ask: What did the people who passed the ordinance in Lukumi have a problem with? The majority approach would say the sacrificing of animals, and the minority approach would say the Santeria religion. A counterfactual is helpful in answering this question. Suppose tomorrow, the Pope issued a promulgation requiring that all Catholic churches must participate in animal sacrifice to glorify God. What, then, would be the result? Would the city exempt Catholics? Likely not. The idea of slaughtering an animal for a religious observance is troubling to many Americans, no matter who does it. Therefore, one can reasonably conjecture that the ordinance sought to prohibit the act of animal sacrifice, not the specific practices of the Santerian religion. Under this logic, courts should not look only to how the religious group was treated, but rather how consistent the government was in protecting its interest, as the majority approach suggests.
Lukumi affirms this hypothesis. In Lukumi, slaughterhouses were exempt from the ordinance. The Court reasoned that the secular exemption rendered the ordinance to be in violation of the free exercise clause. The Court explained that “a law cannot be regarded as protecting an interest…when it leaves appreciable damage to that supposedly vital interest.” In other words, no secular justification for an exemption should be permitted if a religious justification is not also permitted. This is exceedingly inconsistent with the minority approach. The minority approach contradicts Lukumi, because the Court did not look to how the government treated other religious groups but rather how the government applied other secular exemptions.
B. Lukumi’s Contrast with Smith
Why did the Native Americans in Smith lose on their free establishment claim while the Santerians in Lukumi prevailed? Unlike the government in Lukumi, the government in Smith was consistent in its execution of the law. There, the government sought to prohibit recreational drug use. Whatever its interest might be, the government was sincere about pursuing it, since there were no exemptions. On the other hand, the government in Lukumi was evidently not sincere. The government cringed at the idea of killing an animal for a god, yet it saw no issue or cruelty with killing an animal for food. This inconsistency is what Lukumi prohibited.
C. As Applied to Fulton
Like Lukumi, the City included exemptions in its policy. Provision 3.21 forbade foster agencies from rejecting a child or family unless the City provided an exception. These exemptions were extended “all the time.” Such examples included geographic proximity, medical expertise, behavioral expertise, specialization in pregnant use, language needs, and tribal affiliation (or lack thereof). Nevertheless, Philadelphia sent a letter to CSS indicating that it had “no intention of granting an exception for CSS.”
The Court should apply the majority approach to Fulton, just as it did in Lukumi and just as the Sixth Circuit did in Ward. There are legitimate reasons for prohibiting foster agencies from being selective about the foster children and parents that they match. However, according to the City, those reasons are only legitimate whenever they are prohibiting a religious entity from being selective. If the City did not leave any choice to adoption agencies, and if CSS were assigned a same-sex couple, then, under Smith, CSS would have to work with the couple. However, the City lost that authority to enforce Provision 3.21 to religious organizations when it allowed for secular exemptions.
D. A Check on the Tyranny of the Majority
The Framers designed the Constitution so that the majority could not totally oppress minorities. Contrary to what advocates of the minority approach might argue, the majority approach would not allow courts to increasingly strike down legislation aimed to protect a legitimate governmental interest. For example, the law in Smith would still be constitutional under the majority approach, and the government would still be able to carry out its will. However, the majority approach does prohibit the government from refusing to extend exemptions to religious organizations engaged in the same conduct. James Madison regarded one’s moral and religious conscience as “the most sacred of all property.” Echoing this, the majority approach does not argue that the government must bend its will to every religious whim. Instead, the majority approach simply argues that when the government carries out its will, exemptions should be extended first to people of faith.
The Court should adopt the majority approach. Not only is it consistent with Smith and its progeny, but it also makes an already-harmful case for religious minorities less destructive. Adopting the minority approach would stray from the Court’s precedent in Lukumi and contribute to the increasingly fervent persecution that religious minorities undergo today.
 U.S. Const. amend. I., incorporated against the states in Cantwell v. State of Connecticut, 310 U.S. 296 (1940).
 Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990).
 Id. at 884 (citing Bowen v. Roy, 476 U.S. 693, 708 (1986)).
 Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012).
 Fulton v. City of Philadelphia, 922 F.3d 140, 154 (3d. Cir. 2019).
 494 U.S. at 879.
 Id. at 890.
 Id. at 877.
 Id. at 919 (Black, H., dissenting).
 Id. at 920 (quoting Wisconsin v. Yoder, 406 U.S. 205, 218 (1972)).
 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993).
 Id. at 527
 Id. at 524
 Id. at 525-526.
 Id. at 526
 Id. at 528
 Id. at 534
 Id. at 534 (quoting Bowen, 476 U.S. at 708 (1986)).
 Id. at 540
 Axson-Flynn v. Johnson, 356 F.3d 1277, 1298-1299 (10th Cir. 2004); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1232 (11th Cir. 2004); Ward, 667 F.3d at 738-39 (6th Cir. 2012).
 Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1077 (9th Cir. 2015); Fulton, 922 F.3d at 154.
 Ward, 667 F.3d at 738.
 Id. at 730.
 Id. at 730, 32.
 Id. at 739.
 Id. at 740.
 Stormans, 794 F.3d at 1077 (9th Cir. 2015).
 Id. at 1077-78.
 Id. at 1073.
 Id. at 1071
 Id. at 1074.
 Id. at 1077-78.
 Fulton v. City of Philadelphia, 140 S.Ct. 1104 (2020).
 Petitioner for Writ of Certiorari at i, Fulton v. City of Philadelphia, 140 S.Ct. 1104 (2020).
 Fulton, 992 F.3d at 147.
 Id. at 147-48.
 Id. at 148.
 Id. at 158.
 Id. at 148.
 Id. at 158.
 Id. at 149.
 Id. at 150.
 Fulton v. City of Philadelphia, 320 F.Supp.3d 661, 690 (E.D. Pa. 2018).
 Id. at 156.
 Id. at 154.
 Id. at 156.
 Id. at 158.
 Id. at 159.
 Fulton v. City of Philadelphia, 140 S.Ct. 1104 (2020).
 Smith, 494 U.S. at 884 (citing Bowen, 476 U.S. at 708).
 Id. at 919.
 In our case, the question is how the government protected its interest by means of extending exemptions. Smith and its progeny rest on the sheer fact that governments lose credibility when they promote an interest yet add exemptions that make the prohibited act otherwise acceptable.
 Lukumi, 508 U.S. at547.
 Id.at 545 (quoting Florida Star v. B.J.F., 494 U.S. 524, 542 (1989) (Scalia, J., concurring in part and concurring in judgment)).
 Smith, 494 U.S. at 874.
 Petitioner for Writ of Certiorari at 17, Fulton v. City of Philadelphia, 140 S.Ct. 1104 (2020).
 Id. at 12-13.
 Id. at 13.
 The Federalist No. 51 (James Madison). “Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”
 William T. Hutchinson et al., The Papers of James Madison, 266-68 (1972).