Supreme Court Justice Amy Coney Barrett will hear one of her first cases the day after the presidential election, in what could prove to be a landmark decision for religious liberty.
The case, Fulton v. City of Philadelphia, concerns a clash between Catholic Social Services, which provides adoption and foster care services, and Philadelphia city regulations that forbid discrimination on the basis of sexual orientation. The case arose after a 2018 expose revealed that the organization, per Catholic teaching on marriage, does not work with gay and transgender couples.
Religious liberty advocates, since the court accepted the case in February, have been confident in a positive outcome. Even with an eight-man court, which became a possibility following the death of Justice Ruth Bader Ginsburg, said Mark Rienzi, president of the Becket Fund for Religious Liberty, significant wins at the court this year bode well for Fulton.
Lori Windham, the Becket attorney representing CSS in the case, said that she continues to be confident in the Catholic group’s chances after the addition of Barrett to the court.
The case poses a significant challenge to a long-disputed 1990 decision Employment Division v. Smith. In Smith, in which the majority opinion was written by Barrett’s mentor Justice Antonin Scalia, the court ruled that if a law is generally applicable, it does not violate a person’s religious freedoms. Congress reacted in 1993 with the Religious Freedom Restoration Act, an oft-invoked statute that provides many religious exceptions to the conclusions reached in Smith.
When speaking about Smith, Rienzi said that Scalia, although upheld universally as the first originalist on the highest court, did not, in this case, deliver an “originalist decision.” And whether Barrett, who clerked for Scalia and considered him a mentor, shares his opinion in the case, remains unknown.
“We don’t quite know what she will think about it,” Rienzi said. “She did the proper thing heading into her confirmation and nomination, which is that people aren’t supposed to know. She’s not supposed to be forecasting about cases ahead of time.”
Barrett in the past has shown a preference for religious liberty causes as a private citizen. She, along with a number of other prominent religious intellectuals, signed a 2012 letter condemning the Obama administration for its limited religious “accommodations” in a controversial contraception mandate. Opposition to that mandate eventually resulted in the Supreme Court case Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, with the resolution this summer giving religious liberty advocates a significant victory.
As a judge, Barrett decided few cases related to religious liberty, but in a notable challenge to coronavirus restrictions this year, she joined an opinion by her fellow 7th Circuit Court of Appeals Judge Diane Wood that “preferential treatment” for religious speech is a constitutional norm.
