Fulton v. Philadelphia

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(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FULTON ET AL. v. CITY OF PHILADELPHIA,
PENNSYLVANIA, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 19–123. Argued November 4, 2020—Decided June 17, 2021
Philadelphia’s foster care system relies on cooperation between the City
and private foster care agencies. The City enters standard annual con-
tracts with the agencies to place children with foster families. One of
the responsibilities of the agencies is certifying prospective foster fam-
ilies under state statutory criteria. Petitioner Catholic Social Services
has contracted with the City to provide foster care services for over 50
years, continuing the centuries-old mission of the Catholic Church to
serve Philadelphia’s needy children. CSS holds the religious belief
that marriage is a sacred bond between a man and a woman. Because
CSS believes that certification of prospective foster families is an en-
dorsement of their relationships, it will not certify unmarried cou-
ples—regardless of their sexual orientation—or same-sex married cou-
ples. But other private foster agencies in Philadelphia will certify
same-sex couples, and no same-sex couple has sought certification
from CSS. Against this backdrop, a 2018 newspaper story recounted
the Archdiocese of Philadelphia’s position that CSS could not consider
prospective foster parents in same-sex marriages. Calls for investiga-
tion followed, and the City ultimately informed CSS that unless it
agreed to certify same-sex couples the City would no longer refer chil-
dren to the agency or enter a full foster care contract with it in the
future. The City explained that the refusal of CSS to certify same-sex
couples violated both a non-discrimination provision in the agency’s
contract with the City as well as the non-discrimination requirements
of the citywide Fair Practices Ordinance.
CSS and three affiliated foster parents filed suit seeking to enjoin
the City’s referral freeze on the grounds that the City’s actions violated
the Free Exercise and Free Speech Clauses of the First Amendment.
2 FULTON v. PHILADELPHIA
Syllabus
The District Court denied preliminary relief. It reasoned that the con-
tractual non-discrimination requirement and the Fair Practices Ordi-
nance were both neutral and generally applicable under Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, and
that CSS’s free exercise claim was therefore unlikely to succeed. The
Court of Appeals for the Third Circuit affirmed. Given the expiration
of the parties’ contract, the Third Circuit examined whether the City
could condition contract renewal on the inclusion of new language for-
bidding discrimination on the basis of sexual orientation. The court
concluded that the City’s proposed contractual terms stated a neutral
and generally applicable policy under Smith. CSS and the foster par-
ents challenge the Third Circuit’s determination that the City’s actions
were permissible under Smith and also ask the Court to reconsider
that decision.
Held: The refusal of Philadelphia to contract with CSS for the provision
of foster care services unless CSS agrees to certify same-sex couples as
foster parents violates the Free Exercise Clause of the First Amend-
ment. Pp. 4–15.
(a) The City’s actions burdened CSS’s religious exercise by forcing it
either to curtail its mission or to certify same-sex couples as foster par-
ents in violation of its religious beliefs. Smith held that laws inci-
dentally burdening religion are ordinarily not subject to strict scrutiny
under the Free Exercise Clause so long as they are both neutral and
generally applicable. 494 U. S., at 878–882. This case falls outside
Smith because the City has burdened CSS’s religious exercise through
policies that do not satisfy the threshold requirement of being neutral
and generally applicable. Church of Lukumi Babalu Aye, Inc. v. Hia-
leah, 508 U. S. 520, 531–532. A law is not generally applicable if it
invites the government to consider the particular reasons for a person’s
conduct by creating a mechanism for individualized exemptions.
Smith, 494 U. S., at 884. Where such a system of individual exemp-
tions exists, the government may not refuse to extend that system to
cases of religious hardship without a compelling reason. Ibid. Pp. 4–
7.
(1) The non-discrimination requirement of the City’s standard fos-
ter care contract is not generally applicable. Section 3.21 of the con-
tract requires an agency to provide services defined in the contract to
prospective foster parents without regard to their sexual orientation.
But section 3.21 also permits exceptions to this requirement at the
“sole discretion” of the Commissioner. This inclusion of a mechanism
for entirely discretionary exceptions renders the non-discrimination
provision not generally applicable. Smith, 494 U. S., at 884. The City
maintains that greater deference should apply to its treatment of pri-
vate contractors, but the result here is the same under any level of
Cite as: 593 U. S. ____ (2021) 3
Syllabus
deference. Similarly unavailing is the City’s recent contention that
section 3.21 does not even apply to CSS’s refusal to certify same-sex
couples. That contention ignores the broad sweep of section 3.21’s text,
as well as the fact that the City adopted the current version of section
3.21 shortly after declaring that it would make CSS’s obligation to cer-
tify same-sex couples “explicit” in future contracts. Finally, because
state law makes clear that the City’s authority to grant exceptions
from section 3.21 also governs section 15.1’s general prohibition on sex-
ual orientation discrimination, the contract as a whole contains no gen-
erally applicable non-discrimination requirement. Pp. 7–10.
(2) Philadelphia’s Fair Practices Ordinance, which as relevant for-
bids interfering with the public accommodations opportunities of an
individual based on sexual orientation, does not apply to CSS’s actions
here. The Ordinance defines a public accommodation in relevant part
to include a provider “whose goods, services, facilities, privileges, ad-
vantages or accommodations are extended, offered, sold, or otherwise
made available to the public.” Phila. Code §9–1102(1)(w). Certifica-
tion is not “made available to the public” in the usual sense of the
words. Certification as a foster parent is not readily accessible to the
public; the process involves a customized and selective assessment
that bears little resemblance to staying in a hotel, eating at a restau-
rant, or riding a bus. The District Court’s contrary conclusion did not
take into account the uniquely selective nature of foster care certifica-
tion. Pp. 10–13.
(b) The contractual non-discrimination requirement burdens CSS’s
religious exercise and is not generally applicable, so it is subject to “the
most rigorous of scrutiny.” Lukumi, 508 U. S., at 546. A government
policy can survive strict scrutiny only if it advances compelling inter-
ests and is narrowly tailored to achieve those interests. Ibid. The
question is not whether the City has a compelling interest in enforcing
its non-discrimination policies generally, but whether it has such an
interest in denying an exception to CSS. Under the circumstances
here, the City does not have a compelling interest in refusing to con-
tract with CSS. CSS seeks only an accommodation that will allow it
to continue serving the children of Philadelphia in a manner consistent
with its religious beliefs; it does not seek to impose those beliefs on
anyone else. The refusal of Philadelphia to contract with CSS for the
provision of foster care services unless the agency agrees to certify
same-sex couples as foster parents cannot survive strict scrutiny and
violates the Free Exercise Clause of the First Amendment. The Court
does not consider whether the City’s actions also violate the Free
Speech Clause. Pp. 13–15.
922 F. 3d 140, reversed and remanded.
4 FULTON v. PHILADELPHIA
Syllabus
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER,
SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J.,
filed a concurring opinion, in which KAVANAUGH, J., joined, and in which
BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an
opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ.,
joined. GORSUCH, J., filed an opinion concurring in the judgment, in
which THOMAS and ALITO, JJ., joined.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–123
_________________
SHARONELL FULTON, ET AL., PETITIONERS v.
CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 17, 2021]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Catholic Social Services is a foster care agency in Phila-
delphia. The City stopped referring children to CSS upon
discovering that the agency would not certify same-sex cou-
ples to be foster parents due to its religious beliefs about
marriage. The City will renew its foster care contract with
CSS only if the agency agrees to certify same-sex couples.
The question presented is whether the actions of Philadel-
phia violate the First Amendment.
I
The Catholic Church has served the needy children of
Philadelphia for over two centuries. In 1798, a priest in the
City organized an association to care for orphans whose
parents had died in a yellow fever epidemic. H. Folks, The
Care of Destitute, Neglected, and Delinquent Children 10
(1902). During the 19th century, nuns ran asylums for or-
phaned and destitute youth. T. Hacsi, Second Home: Or-
phan Asylums and Poor Families in America 24 (1997).
When criticism of asylums mounted in the Progressive
Era, see id., at 37–40, the Church established the Catholic
2 FULTON v. PHILADELPHIA
Opinion of the Court
Children’s Bureau to place children in foster homes. Peti-
tioner CSS continues that mission today.
The Philadelphia foster care system depends on coopera-
tion between the City and private foster agencies like CSS.
When children cannot remain in their homes, the City’s
Department of Human Services assumes custody of them.
The Department enters standard annual contracts with pri-
vate foster agencies to place some of those children with
foster families.
The placement process begins with review of prospective
foster families. Pennsylvania law gives the authority to cer-
tify foster families to state-licensed foster agencies like
CSS. 55 Pa. Code §3700.61 (2020). Before certifying a fam-
ily, an agency must conduct a home study during which it
considers statutory criteria including the family’s “ability to
provide care, nurturing and supervision to children,”
“[e]xisting family relationships,” and ability “to work in
partnership” with a foster agency. §3700.64. The agency
must decide whether to “approve, disapprove or provision-
ally approve the foster family.” §3700.69.
When the Department seeks to place a child with a foster
family, it sends its contracted agencies a request, known as
a referral. The agencies report whether any of their certi-
fied families are available, and the Department places the
child with what it regards as the most suitable family. The
agency continues to support the family throughout the
placement.
The religious views of CSS inform its work in this system.
CSS believes that “marriage is a sacred bond between a
man and a woman.” App. 171. Because the agency under-
stands the certification of prospective foster families to be
an endorsement of their relationships, it will not certify un-
married couples—regardless of their sexual orientation—or
same-sex married couples. CSS does not object to certifying
gay or lesbian individuals as single foster parents or to plac-
ing gay and lesbian children. No same-sex couple has ever
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
sought certification from CSS. If one did, CSS would direct
the couple to one of the more than 20 other agencies in the
City, all of which currently certify same-sex couples. For
over 50 years, CSS successfully contracted with the City to
provide foster care services while holding to these beliefs.
But things changed in 2018. After receiving a complaint
about a different agency, a newspaper ran a story in which
a spokesman for the Archdiocese of Philadelphia stated that
CSS would not be able to consider prospective foster par-
ents in same-sex marriages. The City Council called for an
investigation, saying that the City had “laws in place to pro-
tect its people from discrimination that occurs under the
guise of religious freedom.” App. to Pet. for Cert. 147a. The
Philadelphia Commission on Human Relations launched an
inquiry. And the Commissioner of the Department of Hu-
man Services held a meeting with the leadership of CSS.
She remarked that “things have changed since 100 years
ago,” and “it would be great if we followed the teachings of
Pope Francis, the voice of the Catholic Church.” App. 366.
Immediately after the meeting, the Department informed
CSS that it would no longer refer children to the agency.
The City later explained that the refusal of CSS to certify
same-sex couples violated a non-discrimination provision in
its contract with the City as well as the non-discrimination
requirements of the citywide Fair Practices Ordinance. The
City stated that it would not enter a full foster care contract
with CSS in the future unless the agency agreed to certify
same-sex couples.
CSS and three foster parents affiliated with the agency
filed suit against the City, the Department, and the Com-
mission. The Support Center for Child Advocates and Phil-
adelphia Family Pride intervened as defendants. As rele-
vant here, CSS alleged that the referral freeze violated the
Free Exercise and Free Speech Clauses of the First Amend-
ment. CSS sought a temporary restraining order and pre-
liminary injunction directing the Department to continue
4 FULTON v. PHILADELPHIA
Opinion of the Court
referring children to CSS without requiring the agency to
certify same-sex couples.
The District Court denied preliminary relief. It con-
cluded that the contractual non-discrimination require-
ment and the Fair Practices Ordinance were neutral and
generally applicable under Employment Division, Depart-
ment of Human Resources of Oregon v. Smith, 494 U. S. 872(1990), and that the free exercise claim was therefore un-
likely to succeed. 320 F. Supp. 3d 661, 680–690 (ED Pa.
2018). The court also determined that the free speech
claims were unlikely to succeed because CSS performed cer-
tifications as part of a government program. Id., at
695–700.
The Court of Appeals for the Third Circuit affirmed. Be-
cause the contract between the parties had expired, the
court focused on whether the City could insist on the inclu-
sion of new language forbidding discrimination on the basis
of sexual orientation as a condition of contract renewal. 922
F. 3d 140, 153 (2019). The court concluded that the pro-
posed contractual terms were a neutral and generally ap-
plicable policy under Smith. 922 F. 3d, at 152–159. The
court rejected the agency’s free speech claims on the same
grounds as the District Court. Id., at 160–162.
CSS and the foster parents sought review. They chal-
lenged the Third Circuit’s determination that the City’s ac-
tions were permissible under Smith and also asked this
Court to reconsider that precedent.
We granted certiorari. 589 U. S. ___ (2020).
II
A
The Free Exercise Clause of the First Amendment, appli-
cable to the States under the Fourteenth Amendment, pro-
vides that “Congress shall make no law . . . prohibiting the
free exercise” of religion. As an initial matter, it is plain
Cite as: 593 U. S. ____ (2021) 5
Opinion of the Court
that the City’s actions have burdened CSS’s religious exer-
cise by putting it to the choice of curtailing its mission or
approving relationships inconsistent with its beliefs. The
City disagrees. In its view, certification reflects only that
foster parents satisfy the statutory criteria, not that the
agency endorses their relationships. But CSS believes that
certification is tantamount to endorsement. And “religious
beliefs need not be acceptable, logical, consistent, or com-
prehensible to others in order to merit First Amendment
protection.” Thomas v. Review Bd. of Ind. Employment Se-
curity Div., 450 U. S. 707, 714 (1981). Our task is to decide
whether the burden the City has placed on the religious ex-
ercise of CSS is constitutionally permissible.
Smith held that laws incidentally burdening religion are
ordinarily not subject to strict scrutiny under the Free Ex-
ercise Clause so long as they are neutral and generally ap-
plicable. 494 U. S., at 878–882. CSS urges us to overrule
Smith, and the concurrences in the judgment argue in favor
of doing so, see post, p. 1 (opinion of ALITO, J.); post, p. 1
(opinion of GORSUCH, J.). But we need not revisit that de-
cision here. This case falls outside Smith because the City
has burdened the religious exercise of CSS through policies
that do not meet the requirement of being neutral and gen-
erally applicable. See Church of Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U. S. 520, 531–532 (1993).
Government fails to act neutrally when it proceeds in a
manner intolerant of religious beliefs or restricts practices
because of their religious nature. See Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S.
___, ___–___ (2018) (slip op., at 16–17); Lukumi, 508 U. S.,
at 533. CSS points to evidence in the record that it believes
demonstrates that the City has transgressed this neutrality
standard, but we find it more straightforward to resolve
this case under the rubric of general applicability.
A law is not generally applicable if it “invite[s]” the gov-
ernment to consider the particular reasons for a person’s
6 FULTON v. PHILADELPHIA
Opinion of the Court
conduct by providing “ ‘a mechanism for individualized ex-
emptions.’ ” Smith, 494 U. S., at 884 (quoting Bowen v. Roy,
476 U. S. 693, 708 (1986) (opinion of Burger, C. J., joined by
Powell and Rehnquist, JJ.)). For example, in Sherbert v.
Verner, 374 U. S. 398 (1963), a Seventh-day Adventist was
fired because she would not work on Saturdays. Unable to
find a job that would allow her to keep the Sabbath as her
faith required, she applied for unemployment benefits. Id.,at 399–400. The State denied her application under a law
prohibiting eligibility to claimants who had “failed, without
good cause . . . to accept available suitable work.” Id., at
401 (internal quotation marks omitted). We held that the
denial infringed her free exercise rights and could be justi-
fied only by a compelling interest. Id., at 406.
Smith later explained that the unemployment benefits
law in Sherbert was not generally applicable because the
“good cause” standard permitted the government to grant
exemptions based on the circumstances underlying each ap-
plication. See 494 U. S., at 884 (citing Roy, 476 U. S., at
708; Sherbert, 374 U. S., at 401, n. 4). Smith went on to
hold that “where the State has in place a system of individ-
ual exemptions, it may not refuse to extend that system to
cases of ‘religious hardship’ without compelling reason.”
494 U. S., at 884 (quoting Roy, 476 U. S., at 708); see also
Lukumi, 508 U. S., at 537 (same).
A law also lacks general applicability if it prohibits reli-
gious conduct while permitting secular conduct that under-
mines the government’s asserted interests in a similar way.
See id., at 542–546. In Church of Lukumi Babalu Aye, Inc.
v. Hialeah, for instance, the City of Hialeah adopted several
ordinances prohibiting animal sacrifice, a practice of the
Santeria faith. Id., at 524–528. The City claimed that the
ordinances were necessary in part to protect public health,
which was “threatened by the disposal of animal carcasses
in open public places.” Id., at 544. But the ordinances did
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
not regulate hunters’ disposal of their kills or improper gar-
bage disposal by restaurants, both of which posed a similar
hazard. Id., at 544–545. The Court concluded that this and
other forms of underinclusiveness meant that the ordi-
nances were not generally applicable. Id., at 545–546.
B
The City initially argued that CSS’s practice violated sec-
tion 3.21 of its standard foster care contract. We conclude,
however, that this provision is not generally applicable as
required by Smith. The current version of section 3.21 spec-
ifies in pertinent part:
“Rejection of Referral. Provider shall not reject a
child or family including, but not limited to, . . . pro-
spective foster or adoptive parents, for Services based
upon . . . their . . . sexual orientation . . . unless an ex-
ception is granted by the Commissioner or the Commis-
sioner’s designee, in his/her sole discretion.” Supp.
App. to Brief for City Respondents 16–17.
This provision requires an agency to provide “Services,”
defined as “the work to be performed under this Contract,”
App. 560, to prospective foster parents regardless of their
sexual orientation.
Like the good cause provision in Sherbert, section 3.21 in-
corporates a system of individual exemptions, made availa-
ble in this case at the “sole discretion” of the Commissioner.
The City has made clear that the Commissioner “has no in-
tention of granting an exception” to CSS. App. to Pet. for
Cert. 168a. But the City “may not refuse to extend that
[exemption] system to cases of ‘religious hardship’ without
compelling reason.” Smith, 494 U. S., at 884 (quoting Roy,
476 U. S., at 708).
The City and intervenor-respondents resist this conclu-
sion on several grounds. They first argue that governments
should enjoy greater leeway under the Free Exercise Clause
8 FULTON v. PHILADELPHIA
Opinion of the Court
when setting rules for contractors than when regulating the
general public. The government, they observe, commands
heightened powers when managing its internal operations.
See NASA v. Nelson, 562 U. S. 134, 150 (2011); Engquist v.
Oregon Dept. of Agriculture, 553 U. S. 591, 598–600 (2008).
And when individuals enter into government employment
or contracts, they accept certain restrictions on their free-
dom as part of the deal. See Garcetti v. Ceballos, 547 U. S.
410, 418–420 (2006); Board of Comm’rs, Wabaunsee Cty. v.
Umbehr, 518 U. S. 668, 677–678 (1996). Given this context,
the City and intervenor-respondents contend, the govern-
ment should have a freer hand when dealing with contrac-
tors like CSS.
These considerations cannot save the City here. As Phil-
adelphia rightly acknowledges, “principles of neutrality
and general applicability still constrain the government in
its capacity as manager.” Brief for City Respondents 11–
12. We have never suggested that the government may dis-
criminate against religion when acting in its managerial
role. And Smith itself drew support for the neutral and gen-
erally applicable standard from cases involving internal
government affairs. See 494 U. S., at 883–885, and n. 2 (cit-
ing Lyng v. Northwest Indian Cemetery Protective Assn.,
485 U. S. 439 (1988); Roy, 476 U. S. 693). The City and
intervenor-respondents accordingly ask only that courts ap-
ply a more deferential approach in determining whether a
policy is neutral and generally applicable in the contracting
context. We find no need to resolve that narrow issue in
this case. No matter the level of deference we extend to the
City, the inclusion of a formal system of entirely discretion-
ary exceptions in section 3.21 renders the contractual non-
discrimination requirement not generally applicable.
Perhaps all this explains why the City now contends that
section 3.21 does not apply to CSS’s refusal to certify same-
sex couples after all. Contrast App. to Pet. for Cert. 167a–
168a with Brief for City Respondents 35–36. Instead, the
Cite as: 593 U. S. ____ (2021) 9
Opinion of the Court
City says that section 3.21 addresses only “an agency’s right
to refuse ‘referrals’ to place a child with a certified foster
family.” Brief for City Respondents 36. We think the City
had it right the first time. Although the section is titled
“Rejection of Referral,” the text sweeps more broadly, for-
bidding the rejection of “prospective foster . . . parents” for
“Services,” without limitation. Supp. App. to Brief for City
Respondents 16. The City maintains that certification is
one of the services foster agencies are hired to perform, so
its attempt to backtrack on the reach of section 3.21 is un-
availing. See A. Scalia & B. Garner, Reading Law: The In-
terpretation of Legal Texts 222 (2012) (“[A] title or heading
should never be allowed to override the plain words of a
text.”). Moreover, the City adopted the current version of
section 3.21 shortly after declaring that it would make
CSS’s obligation to certify same-sex couples “explicit” in fu-
ture contracts, App. to Pet. for Cert. 170a, confirming our
understanding of the text of the provision.
The City and intervenor-respondents add that, notwith-
standing the system of exceptions in section 3.21, a sepa-
rate provision in the contract independently prohibits dis-
crimination in the certification of foster parents. That
provision, section 15.1, bars discrimination on the basis of
sexual orientation, and it does not on its face allow for ex-
ceptions. See Supp. App. to Brief for City Respondents 31.
But state law makes clear that “one part of a contract can-
not be so interpreted as to annul another part.” Shehadi v.
Northeastern Nat. Bank of Pa., 474 Pa. 232, 236, 378 A. 2d
304, 306 (1977); see Commonwealth ex rel. Kane v. UPMC,
634 Pa. 97, 135, 129 A. 3d 441, 464 (2015). Applying that
“fundamental” rule here, Shehadi, 474 Pa., at 236, 378
A. 2d, at 306, an exception from section 3.21 also must gov-
ern the prohibition in section 15.1, lest the City’s reserva-
tion of the authority to grant such an exception be a nullity.
As a result, the contract as a whole contains no generally
applicable non-discrimination requirement.
10 FULTON v. PHILADELPHIA
Opinion of the Court
Finally, the City and intervenor-respondents contend
that the availability of exceptions under section 3.21 is ir-
relevant because the Commissioner has never granted one.
That misapprehends the issue. The creation of a formal
mechanism for granting exceptions renders a policy not
generally applicable, regardless whether any exceptions
have been given, because it “invite[s]” the government to
decide which reasons for not complying with the policy are
worthy of solicitude, Smith, 494 U. S., at 884—here, at the
Commissioner’s “sole discretion.”
The concurrence objects that no party raised these argu-
ments in this Court. Post, at 6 (opinion of GORSUCH, J.).
But CSS, supported by the United States, contended that
the City’s “made-for-CSS Section 3.21 permits discretionary
‘exception[s]’ from the requirement ‘not [to] reject a child or
family’ based upon ‘their . . . sexual orientation,’ ” which
“alone triggers strict scrutiny.” Reply Brief 5 (quoting
Supp. App. to Brief for City Respondents 16; some altera-
tions in original); see also Brief for Petitioners 26–27 (sec-
tion 3.21 triggers strict scrutiny); Brief for United States as
Amicus Curiae 21–22 (same). The concurrence favors the
City’s reading of section 3.21, see post, at 5–6, but we find
CSS’s position more persuasive.
C
In addition to relying on the contract, the City argues
that CSS’s refusal to certify same-sex couples constitutes
an “Unlawful Public Accommodations Practice[ ]” in viola-
tion of the Fair Practices Ordinance. That ordinance for-
bids “deny[ing] or interfer[ing] with the public accommoda-
tions opportunities of an individual or otherwise
discriminat[ing] based on his or her race, ethnicity, color,
sex, sexual orientation, . . . disability, marital status, famil-
ial status,” or several other protected categories. Phila.
Code §9–1106(1) (2016). The City contends that foster care
Cite as: 593 U. S. ____ (2021) 11
Opinion of the Court
agencies are public accommodations and therefore forbid-
den from discriminating on the basis of sexual orientation
when certifying foster parents.
CSS counters that “foster care has never been treated as
a ‘public accommodation’ in Philadelphia.” Brief for Peti-
tioners 13. In any event, CSS adds, the ordinance cannot
qualify as generally applicable because the City allows ex-
ceptions to it for secular reasons despite denying one for
CSS’s religious exercise. But that constitutional issue
arises only if the ordinance applies to CSS in the first place.
We conclude that it does not because foster care agencies do
not act as public accommodations in performing certifica-
tions.
The ordinance defines a public accommodation in rele-
vant part as “[a]ny place, provider or public conveyance,
whether licensed or not, which solicits or accepts the pat-
ronage or trade of the public or whose goods, services, facil-
ities, privileges, advantages or accommodations are ex-
tended, offered, sold, or otherwise made available to the
public.” §9–1102(1)(w). Certification is not “made available
to the public” in the usual sense of the words. To make a
service “available” means to make it “accessible, obtaina-
ble.” Merriam-Webster’s Collegiate Dictionary 84 (11th ed.
2005); see also 1 Oxford English Dictionary 812 (2d ed.
1989) (“capable of being made use of, at one’s disposal,
within one’s reach”). Related state law illustrates the same
point. A Pennsylvania antidiscrimination statute similarly
defines a public accommodation as an accommodation that
is “open to, accepts or solicits the patronage of the general
public.” Pa. Stat. Ann., Tit. 43, §954(l) (Purdon Cum. Supp.
2009). It fleshes out that definition with examples like ho-
tels, restaurants, drug stores, swimming pools, barber-
shops, and public conveyances. Ibid. The “common theme”
is that a public accommodation must “provide a benefit to
the general public allowing individual members of the gen-
12 FULTON v. PHILADELPHIA
Opinion of the Court
eral public to avail themselves of that benefit if they so de-
sire.” Blizzard v. Floyd, 149 Pa. Commw. 503, 506, 613
A. 2d 619, 621 (1992).
Certification as a foster parent, by contrast, is not readily
accessible to the public. It involves a customized and selec-
tive assessment that bears little resemblance to staying in
a hotel, eating at a restaurant, or riding a bus. The process
takes three to six months. Applicants must pass back-
ground checks and a medical exam. Foster agencies are re-
quired to conduct an intensive home study during which
they evaluate, among other things, applicants’ “mental and
emotional adjustment,” “community ties with family,
friends, and neighbors,” and “[e]xisting family relation-
ships, attitudes and expectations regarding the applicant’s
own children and parent/child relationships.” 55 Pa. Code
§3700.64. Such inquiries would raise eyebrows at the local
bus station. And agencies understandably approach this
sensitive process from different angles. As the City itself
explains to prospective foster parents, “[e]ach agency has
slightly different requirements, specialties, and training
programs.” App. to Pet. for Cert. 197a. All of this confirms
that the one-size-fits-all public accommodations model is a
poor match for the foster care system.
The City asks us to adhere to the District Court’s con-
trary determination that CSS qualifies as a public accom-
modation under the ordinance. The concurrence adopts the
City’s argument, seeing no incongruity in deeming a private
religious foster agency a public accommodation. See post,
at 3 (opinion of GORSUCH, J.). We respectfully disagree
with the view of the City and the concurrence. Although
“we ordinarily defer to lower court constructions of state
statutes, we do not invariably do so.” Frisby v. Schultz, 487
U. S. 474, 483 (1988) (citation omitted). Deference would
be inappropriate here. The District Court did not take into
account the uniquely selective nature of the certification
Cite as: 593 U. S. ____ (2021) 13
Opinion of the Court
process, which must inform the applicability of the ordi-
nance. We agree with CSS’s position, which it has main-
tained from the beginning of this dispute, that its “foster
services do not constitute a ‘public accommodation’ under
the City’s Fair Practices Ordinance, and therefore it is not
bound by that ordinance.” App. to Pet. for Cert. 159a. We
therefore have no need to assess whether the ordinance is
generally applicable.
III
The contractual non-discrimination requirement imposes
a burden on CSS’s religious exercise and does not qualify as
generally applicable. The concurrence protests that the
“Court granted certiorari to decide whether to overrule
[Smith],” and chides the Court for seeking to “sidestep the
question.” Post, at 1 (opinion of GORSUCH, J.). But the
Court also granted review to decide whether Philadelphia’s
actions were permissible under our precedents. See Pet. for
Cert. i. CSS has demonstrated that the City’s actions are
subject to “the most rigorous of scrutiny” under those prec-
edents. Lukumi, 508 U. S., at 546. Because the City’s ac-
tions are therefore examined under the strictest scrutiny
regardless of Smith, we have no occasion to reconsider that
decision here.
A government policy can survive strict scrutiny only if it
advances “interests of the highest order” and is narrowly
tailored to achieve those interests. Lukumi, 508 U. S., at
546 (internal quotation marks omitted). Put another way,
so long as the government can achieve its interests in a
manner that does not burden religion, it must do so.
The City asserts that its non-discrimination policies
serve three compelling interests: maximizing the number of
foster parents, protecting the City from liability, and ensur-
ing equal treatment of prospective foster parents and foster
children. The City states these objectives at a high level of
14 FULTON v. PHILADELPHIA
Opinion of the Court
generality, but the First Amendment demands a more pre-
cise analysis. See Gonzales v. O Centro Espírita Beneficente
União do Vegetal, 546 U. S. 418, 430–432 (2006) (discussing
the compelling interest test applied in Sherbert and Wiscon-
sin v. Yoder, 406 U. S. 205 (1972)). Rather than rely on
“broadly formulated interests,” courts must “scrutinize[ ]
the asserted harm of granting specific exemptions to partic-
ular religious claimants.” O Centro, 546 U. S., at 431. The
question, then, is not whether the City has a compelling in-
terest in enforcing its non-discrimination policies generally,
but whether it has such an interest in denying an exception
to CSS.
Once properly narrowed, the City’s asserted interests are
insufficient. Maximizing the number of foster families and
minimizing liability are important goals, but the City fails
to show that granting CSS an exception will put those goals
at risk. If anything, including CSS in the program seems
likely to increase, not reduce, the number of available foster
parents. As for liability, the City offers only speculation
that it might be sued over CSS’s certification practices.
Such speculation is insufficient to satisfy strict scrutiny, see
Brown v. Entertainment Merchants Assn., 564 U. S. 786,
799–800 (2011), particularly because the authority to cer-
tify foster families is delegated to agencies by the State, not
the City, see 55 Pa. Code §3700.61.
That leaves the interest of the City in the equal treatment
of prospective foster parents and foster children. We do not
doubt that this interest is a weighty one, for “[o]ur society
has come to the recognition that gay persons and gay cou-
ples cannot be treated as social outcasts or as inferior in
dignity and worth.” Masterpiece Cakeshop, 584 U. S., at ___
(slip op., at 9). On the facts of this case, however, this in-
terest cannot justify denying CSS an exception for its reli-
gious exercise. The creation of a system of exceptions under
the contract undermines the City’s contention that its non-
discrimination policies can brook no departures. See
Cite as: 593 U. S. ____ (2021) 15
Opinion of the Court
Lukumi, 508 U. S., at 546–547. The City offers no compel-
ling reason why it has a particular interest in denying an
exception to CSS while making them available to others.
* * *
As Philadelphia acknowledges, CSS has “long been a
point of light in the City’s foster-care system.” Brief for City
Respondents 1. CSS seeks only an accommodation that will
allow it to continue serving the children of Philadelphia in
a manner consistent with its religious beliefs; it does not
seek to impose those beliefs on anyone else. The refusal of
Philadelphia to contract with CSS for the provision of foster
care services unless it agrees to certify same-sex couples as
foster parents cannot survive strict scrutiny, and violates
the First Amendment.
In view of our conclusion that the actions of the City vio-
late the Free Exercise Clause, we need not consider
whether they also violate the Free Speech Clause.
The judgment of the United States Court of Appeals for
the Third Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 593 U. S. ____ (2021) 1
BARRETT, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–123
_________________
SHARONELL FULTON, ET AL., PETITIONERS v.
CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 17, 2021]
JUSTICE BARRETT, with whom JUSTICE KAVANAUGH
joins, and with whom JUSTICE BREYER joins as to all but
the first paragraph, concurring.
In Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990), this Court held that a neutral
and generally applicable law typically does not violate the
Free Exercise Clause—no matter how severely that law
burdens religious exercise. Petitioners, their amici, schol-
ars, and Justices of this Court have made serious argu-
ments that Smith ought to be overruled. While history
looms large in this debate, I find the historical record more
silent than supportive on the question whether the found-
ing generation understood the First Amendment to require
religious exemptions from generally applicable laws in at
least some circumstances. In my view, the textual and
structural arguments against Smith are more compelling.
As a matter of text and structure, it is difficult to see why
the Free Exercise Clause—lone among the First Amend-
ment freedoms—offers nothing more than protection from
discrimination.
Yet what should replace Smith? The prevailing assump-
tion seems to be that strict scrutiny would apply whenever
a neutral and generally applicable law burdens religious ex-
ercise. But I am skeptical about swapping Smith’s categor-
ical antidiscrimination approach for an equally categorical
2 FULTON v. PHILADELPHIA
BARRETT, J., concurring
strict scrutiny regime, particularly when this Court’s reso-
lution of conflicts between generally applicable laws and
other First Amendment rights—like speech and assem-
bly—has been much more nuanced. There would be a num-
ber of issues to work through if Smith were overruled. To
name a few: Should entities like Catholic Social Services—
which is an arm of the Catholic Church—be treated differ-
ently than individuals? Cf. Hosanna-Tabor Evangelical Lu-
theran Church and School v. EEOC, 565 U. S. 171 (2012).
Should there be a distinction between indirect and direct
burdens on religious exercise? Cf. Braunfeld v. Brown, 366
U. S. 599, 606–607 (1961) (plurality opinion). What forms
of scrutiny should apply? Compare Sherbert v. Verner, 374
U. S. 398, 403 (1963) (assessing whether government’s in-
terest is “ ‘compelling’ ”), with Gillette v. United States, 401
U. S. 437, 462 (1971) (assessing whether government’s in-
terest is “substantial”). And if the answer is strict scrutiny,
would pre-Smith cases rejecting free exercise challenges to
garden-variety laws come out the same way? See Smith,
494 U. S., at 888–889.
We need not wrestle with these questions in this case,
though, because the same standard applies regardless
whether Smith stays or goes. A longstanding tenet of our
free exercise jurisprudence—one that both pre-dates and
survives Smith—is that a law burdening religious exercise
must satisfy strict scrutiny if it gives government officials
discretion to grant individualized exemptions. See id., at
884 (law not generally applicable “where the State has in
place a system of individual exemptions” (citing Sherbert,
374 U. S., at 401, n. 4)); see also Cantwell v. Connecticut,
310 U. S. 296, 303–307 (1940) (subjecting statute to height-
ened scrutiny because exemptions lay in discretion of gov-
ernment official). As the Court’s opinion today explains, the
government contract at issue provides for individualized ex-
emptions from its nondiscrimination rule, thus triggering
strict scrutiny. And all nine Justices agree that the City
Cite as: 593 U. S. ____ (2021) 3
BARRETT, J., concurring
cannot satisfy strict scrutiny. I therefore see no reason to
decide in this case whether Smith should be overruled,
much less what should replace it. I join the Court’s opinion
in full.
Cite as: 593 U. S. ____ (2021) 1
ALITO,AJ., , J., concurring
concurring
LITO in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–123
_________________
SHARONELL FULTON, ET AL., PETITIONERS v.
CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 17, 2021]
JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, concurring in the judgment.
This case presents an important constitutional question
that urgently calls out for review: whether this Court’s gov-
erning interpretation of a bedrock constitutional right, the
right to the free exercise of religion, is fundamentally wrong
and should be corrected.
In Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990), the Court abruptly pushed
aside nearly 30 years of precedent and held that the First
Amendment’s Free Exercise Clause tolerates any rule that
categorically prohibits or commands specified conduct so
long as it does not target religious practice. Even if a rule
serves no important purpose and has a devastating effect
on religious freedom, the Constitution, according to Smith,
provides no protection. This severe holding is ripe for reex-
amination.
I
There is no question that Smith’s interpretation can have
startling consequences. Here are a few examples. Suppose
that the Volstead Act, which implemented the Prohibition
Amendment, had not contained an exception for sacramen-
tal wine. See Pub. L. 66, §3, 41 Stat. 308–309. The Act
would have been consistent with Smith even though it
2 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
would have prevented the celebration of a Catholic Mass
anywhere in the United States.1 Or suppose that a State,
following the example of several European countries, made
it unlawful to slaughter an animal that had not first been
rendered unconscious.2 That law would be fine under
Smith even though it would outlaw kosher and halal
slaughter.3 Or suppose that a jurisdiction in this country,
following the recommendations of medical associations in
Europe, banned the circumcision of infants.4 A San Fran-
cisco ballot initiative in 2010 proposed just that.5 A cate-
gorical ban would be allowed by Smith even though it would
prohibit an ancient and important Jewish and Muslim prac-
tice.6 Or suppose that this Court or some other court en-
forced a rigid rule prohibiting attorneys from wearing any
——————
1 Code of Canon Law, Canon §924 (Eng. transl. 1998).
2 See Law Library of Congress, Global Legal Research Center, Legal
Restrictions on Religious Slaughter in Europe (Mar. 2018), www.loc.gov/
law/help/religious-slaughter/religious-slaughter-europe.pdf.
3 Id., at 1–2.
4 See Frisch et al., Cultural Bias in the AAP’s 2012 Technical Report
and Policy Statement on Male Circumcision, 131 Pediatrics 796, 799
(2013) (representatives of pediatric medical associations in 16 European
countries and Canada recommending against circumcision because the
practice “has no compelling health benefits, causes postoperative pain,
can have serious long-term consequences, constitutes a violation of the
United Nations’ Declaration of the Rights of the Child, and conflicts with
the Hippocratic oath”).
5 See Initiative Measure To Be Submitted Directly to the Voters: Gen-
ital Cutting of Male Minors (Oct. 13, 2010) (online source archived at
www.supremecourt.gov); see also Jewish Community Relations Council
of San Francisco v. Arntz, 2012 WL 11891474, *1 (Super. Ct. San Fran-
cisco Cty., Cal., Apr. 6, 2012) (ordering that the proposed initiative be
removed from the ballot because it was preempted by California law).
6 See 4 Encyclopaedia Judaica 730 (2d ed. 2007) (“Jewish circumcision
originated, according to the biblical account, with Abraham”); The Shen-
gold Jewish Encyclopedia 62 (3d ed. 2003) (“[Circumcision] has become a
basic law among Jews. In times of persecution, Jews risked their lives
Cite as: 593 U. S. ____ (2021) 3
ALITO, J., concurring in judgment
form of head covering in court. The rule would satisfy
Smith even though it would prevent Orthodox Jewish men,
Sikh men, and many Muslim women from appearing. Many
other examples could be added.
We may hope that legislators and others with rule-
making authority will not go as far as Smith allows, but the
present case shows that the dangers posed by Smith are not
hypothetical. The city of Philadelphia (City) has issued an
ultimatum to an arm of the Catholic Church: Either engage
in conduct that the Church views as contrary to the tradi-
tional Christian understanding of marriage or abandon a
mission that dates back to the earliest days of the Church—
providing for the care of orphaned and abandoned children.
Many people believe they have a religious obligation to
assist such children. Jews and Christians regard this as a
scriptural command,7 and it is a mission that the Catholic
Church has undertaken since ancient times. One of the
first known orphanages is said to have been founded by St.
Basil the Great in the fourth century,8 and for centuries,
the care of orphaned and abandoned children was carried
——————
to fulfill the commandment”); B. Abramowitz, The Law of Israel: A Com-
pilation of the Hayye Adam 206 (1897) (“It is a positive commandment
that a father shall circumcise his son or that he shall appoint another
Israelite to act as his agent therein”); 3 Encyclopedia of Religion 1798 (2d
ed. 2005) (“Muslims agree that [circumcision] must occur before mar-
riage and is required of male converts”); H. Gibb & J. Kramers, Shorter
Encyclopaedia of Islam 254 (1953).
7 See Holy Bible, Deuteronomy 10:18, 16:11, 26:12–13; James 1:27.
8 See A. Crislip, From Monastery to Hospital: Christian Monasticism
& the Transformation of Health Care in Late Antiquity 104, 111 (2005)
(describing Basil of Caesarea’s use of his 4th century monastery as a
“place for the nourishment of orphans,” who “lived in their own wing of
the monastery,” “were provided with all the necessities of life[,] and were
raised by the monastics acting as surrogate parents” (internal quotation
marks omitted)).
4 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
out by religious orders.9
In the New World, religious groups continued to take the
lead. The first known orphanage in what is now the United
States was founded by an order of Catholic nuns in New
Orleans around 1729.10 In the 1730s, the first two orphan-
ages in what became the United States at the founding
were established in Georgia by Lutherans and by Rev.
George Whitefield, a leader in the “First Great Awaken-
ing.”11 In the late 18th and early 19th centuries,
Protestants and Catholics established orphanages in major
cities. One of the first orphanages in Philadelphia was
founded by a Catholic priest in 1798.12 The Jewish Society
for the Relief of Orphans and Children of Indigent Parents
began its work in Charleston in 1801.13
During the latter part of the 19th century and continuing
into the 20th century, the care of children was shifted from
orphanages to foster families,14 but for many years, state
and local government participation in this field was quite
limited. As one of Philadelphia’s amici puts it, “[i]nto the
early twentieth century, the care of orphaned and aban-
doned children in the United States remained largely in the
hands of private charitable and religious organizations.”15
In later years, an influx of federal money16 spurred States
——————
9 Ransel, Orphans and Foundlings, in 3 Encyclopedia of European So-
cial History 497, 498 (2001).
10 T. Hacsi, Second Home: Orphan Asylums and Poor Families in
America 17 (1997).
11 Id., at 17–18; F. Chapell, The Great Awakening of 1740, pp. 90–91
(1903).
12 2 Encyclopedia of the New American Nation 477 (2006); Hacsi, Second
Home, at 18.
13 15 Encyclopaedia Judaica 485.
14 2 Encyclopedia of Children and Childhood 639–640 (2004); Brief for
Historians of Child Welfare as Amici Curiae 16–17.
15 Brief for Annie E. Casey Foundation et al. as Amici Curiae 4–5.
16 See Social Security Act, §521, 49 Stat. 627, 633; Social Security Act
Cite as: 593 U. S. ____ (2021) 5
ALITO, J., concurring in judgment
and local governments to take a more active role, and today
many governments administer what is essentially a licens-
ing system. As is typical in other jurisdictions, no private
charitable group may recruit, vet, or support foster parents
in Philadelphia without the City’s approval.
Whether with or without government participation,
Catholic foster care agencies in Philadelphia and other cit-
ies have a long record of finding homes for children whose
parents are unable or unwilling to care for them. Over the
years, they have helped thousands of foster children and
parents, and they take special pride in finding homes for
children who are hard to place, including older children and
those with special needs.17
Recently, however, the City has barred Catholic Social
Services (CSS) from continuing this work. Because the
Catholic Church continues to believe that marriage is a
bond between one man and one woman, CSS will not vet
same-sex couples. As far as the record reflects, no same-sex
couple has ever approached CSS, but if that were to occur,
CSS would simply refer the couple to another agency that
is happy to provide that service—and there are at least 27
such agencies in Philadelphia. App. 171; App. to Pet. for
Cert. 137a; see also id., at 286a. Thus, not only is there no
evidence that CSS’s policy has ever interfered in the slight-
est with the efforts of a same-sex couple to care for a foster
child, there is no reason to fear that it would ever have that
effect.
None of that mattered to Philadelphia. When a newspa-
per publicized CSS’s policy, the City barred CSS from con-
tinuing its foster care work. Remarkably, the City took this
——————
Amendments of 1961, 75 Stat. 131.
17 See United States Conference of Catholic Bishops, Discrimination
Against Catholic Adoption Services (2018), https://www.usccb.org/issues-
and-action/religious-liberty/upload/Discrimination-against-Catholic-
adoption-services.pdf.
6 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
step even though it threatens the welfare of children await-
ing placement in foster homes. There is an acute shortage
of foster parents, both in Philadelphia and in the country at
large.18 By ousting CSS, the City eliminated one of its ma-
jor sources of foster homes. And that’s not all. The City
——————
18 See Brief for Petitioners 11–12 (citing Wax-Thibodeaux, “We Are
Just Destroying These Kids”: The Foster Children Growing Up Inside
Detention Centers, Washington Post (Dec. 30, 2019), https://www.
washingtonpost.com/national/we-are-just-destroying-these-kids-the-
foster-children-growing-up-inside-detention-centers/2019/12/30/97f65f3a-
eaa2-11e9-9c6d-436a0df4f31d_story.html (describing the placement of
foster children in emergency shelters and juvenile detention centers));
Brief in Opposition for City Respondents 4 (acknowledging 5,000 chil-
dren in need of care in Philadelphia); Terruso, Philly Puts Out “Urgent”
Call—300 Families Needed for Fostering, Philadelphia Inquirer (Mar. 8,
2018), https://www.inquirer.com/philly/news/foster-parents-dhs-philly-
child-welfare-adoptions-20180308.html; see also Haskins, Kohomban, &
Rodriguez, Keeping Up With the Caseload: How To Recruit and Retain
Foster Parents, The Brookings Institution (Apr. 24, 2019), https:
www.brookings.edu/blog/upfront/2019/04/24/keeping-up-with-the-case-
load-how-to-recruit-and-retain-foster-parents/ (explaining that “[t]he
number of children in foster care ha[d] risen for the fifth consecutive
year” to nearly 443,000 in 2017 and noting that “between 30 to 50 percent
of foster families step down each year”); Adams, Foster Care Crisis: More
Kids Are Entering, but Fewer Families Are Willing To Take Them In,
NBC News (Dec. 30, 2020), https://www.nbcnews.com/news/nbcblk/
foster-care-crisis-more-kids-are-entering-fewer-families-are-n1252450
(explaining how the COVID–19 pandemic has overwhelmed the United
States’ foster care system); Satija, For Troubled Foster Kids in Houston,
Sleeping in Offices Is “Rock Bottom,” Texas Tribune (Apr. 20, 2017),
https://www.texastribune.org/2017/04/20/texas-foster-care-placement-
crisis/ (describing Texas’s shortage of placement options, which resulted
in children sleeping in office buildings where “no one is likely to stop
them” if they decide to run away); Associated Press, Indiana Agencies
Desperate To Find Foster Parents With Children Entering System at All-
Time High, Fox 59 (Mar. 7, 2017), https://fox59.com/news/indiana-
agencies-desperate-to-find-foster-parents-with-children-entering-system-at
-all-time-high/ (noting that nearly 1,000 children in Indiana are in need
of care and that, in the span of one month, the State’s largest not-for-
profit child services agency was able to place 3 children out of 150 to 200
Cite as: 593 U. S. ____ (2021) 7
ALITO, J., concurring in judgment
went so far as to prohibit the placement of any children in
homes that CSS had previously vetted and approved. Ex-
emplary foster parents like petitioners Sharonell Fulton
and Toni Lynn Simms-Busch are blocked from providing
loving homes for children they were eager to help.19 The
City apparently prefers to risk leaving children without fos-
ter parents than to allow CSS to follow its religiously dic-
tated policy, which threatens no tangible harm.
CSS broadly implies that the fundamental objective of
City officials is to force the Philadelphia Archdiocese to
change its position on marriage. Among other things, they
point to statements by a City official deriding the Archdio-
cese’s position as out of step with Pope Francis’s teaching
and 21st century moral views.20 But whether or not this is
the City’s real objective, there can be no doubt that Phila-
delphia’s ultimatum restricts CSS’s ability to do what it be-
lieves the Catholic faith requires.
Philadelphia argues that its stance is allowed by Smith
because, it claims, a City policy categorically prohibits fos-
ter care agencies from discriminating against same-sex cou-
ples. Bound by Smith, the lower courts accepted this argu-
ment, 320 F. Supp. 3d 661, 682–684 (ED Pa. 2018), 922
F. 3d 140, 156–159 (CA3 2019), and we then granted certi-
orari, 589 U. S. ___ (2020). One of the questions that we
accepted for review is “[w]hether Employment Division v.
——————
in one region); Lawrence, Georgia Foster Care System in Crisis Due to
Shortage of Foster Homes, ABC News Channel 9 (Feb. 15, 2017),
https://newschannel9.com/news/local/georgia-foster-care-system-in-crisis-
due-to-shortage-of-foster-homes (reporting on a county in Georgia with
116 children in need of care but only 14 foster families).
19 See App. to Pet. for Cert. 19a, 64a, 140a; see also App. 59 (plaintiff
Cecilia Paul testifying that, at the time of the evidentiary hearing below,
she had no children in her care due to the City’s policy).
20 Id., at 182, 365–366 (describing Department of Human Services com-
missioner’s comments to CSS that “it would be great if we followed the
teachings of Pope Francis” and that “things have changed since 100 years
ago”).
8 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
Smith should be revisited.” We should confront that ques-
tion.
Regrettably, the Court declines to do so. Instead, it re-
verses based on what appears to be a superfluous (and
likely to be short-lived) feature of the City’s standard an-
nual contract with foster care agencies. Smith’s holding
about categorical rules does not apply if a rule permits in-
dividualized exemptions, 494 U. S., at 884, and the majority
seizes on the presence in the City’s standard contract of lan-
guage giving a City official the power to grant exemptions.
Ante, at 7. The City tells us that it has never granted such
an exemption and has no intention of handing one to CSS,
Brief for City Respondents 36; App. to Pet. for Cert. 168a,
but the majority reverses the decision below because the
contract supposedly confers that never-used power. Ante,
at 10, 15.
This decision might as well be written on the dissolving
paper sold in magic shops. The City has been adamant
about pressuring CSS to give in, and if the City wants to
get around today’s decision, it can simply eliminate the
never-used exemption power.21 If it does that, then, voilà,
today’s decision will vanish—and the parties will be back
where they started. The City will claim that it is protected
by Smith; CSS will argue that Smith should be overruled;
——————
21 The Court’s decision also depends on its own contested interpretation
of local and state law. See post, at 2–7 (GORSUCH, J., concurring in judg-
ment). Instead of addressing whether the City’s Fair Practices Ordi-
nance is generally applicable, the Court concludes that the ordinance
does not apply to CSS because CSS’s foster care certification services do
not constitute “public accommodations” under the FPO. Ante, at 11. Of
course, this Court’s interpretation of state and local law is not binding
on state courts. See, e.g., West v. American Telephone & Telegraph Co.,
311 U. S. 223, 236 (1940); see also Danforth v. Minnesota, 552 U. S. 264,
291 (2008) (ROBERTS, C. J., dissenting) (“State courts are the final arbi-
ters of their own state law”). Should the Pennsylvania courts interpret
the FPO differently, they would effectively abrogate the Court’s decision
in this case.
Cite as: 593 U. S. ____ (2021) 9
ALITO, J., concurring in judgment
the lower courts, bound by Smith, will reject that argument;
and CSS will file a new petition in this Court challenging
Smith. What is the point of going around in this circle?
Not only is the Court’s decision unlikely to resolve the
present dispute, it provides no guidance regarding similar
controversies in other jurisdictions. From 2006 to 2011,
Catholic Charities in Boston, San Francisco, Washington,
D. C., and Illinois ceased providing adoption or foster care
services after the city or state government insisted that
they serve same-sex couples. Although the precise legal
grounds for these actions are not always clear, it appears
that they were based on laws or regulations generally pro-
hibiting discrimination on the basis of sexual orientation.22
And some jurisdictions have adopted anti-discrimination
rules that expressly target adoption services.23 Today’s de-
——————
22 See 102 Code Mass. Regs. 1.03(1) (1997) (prohibiting discrimination
on the basis of sexual orientation as a condition of receiving the state
license required to provide adoption services); San Francisco Admin.
Code §12B.1(a) (2021) (requiring that all contracts with the city include
a provision “obligating the contractor not to discriminate on the basis of ”
sexual orientation and noting that the code section was last amended in
2000); D. C. Code §§ 2–1401.02(24), 2–1402.31 (2008) (prohibiting, on the
basis of sexual orientation, the direct or indirect denial of “the full and
equal enjoyment of the goods, services, facilities, privileges, advantages,
and accommodations of any place of public accommodations,” defined to
include “establishments dealing with goods or services of any kind”); Ill.
Comp. Stat., ch. 775, §§5/1–103(O–1), (Q), 5/5–101(A), 5/5–102 (2011)
(prohibiting discrimination on the basis of sexual orientation in a “place
of public accommodation,” defined by a list of non-exclusive examples).
23 See, e.g., Cal. Welf. & Inst. Code Ann. §16013(a) (West 2018) (declar-
ing that “all persons engaged in providing care and services to foster chil-
dren, including . . . foster parents [and] adoptive parents . . . shall have
fair and equal access to all available programs, services, benefits, and
licensing processes, and shall not be subjected to discrimination . . . on
the basis of . . . sexual orientation”); D. C. Munic. Regs., tit. 29, §6003.1(d)
(2018) (providing that foster parents are “[t]o not be subject to discrimi-
10 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
cision will be of no help in other cases involving the exclu-
sion of faith-based foster care and adoption agencies unless
by some chance the relevant laws contain the same glitch
as the Philadelphia contractual provision on which the
majority’s decision hangs. The decision will be even less
significant in all the other important religious liberty cases
that are bubbling up.
We should reconsider Smith without further delay. The
correct interpretation of the Free Exercise Clause is a ques-
tion of great importance, and Smith’s interpretation is hard
to defend. It can’t be squared with the ordinary meaning of
the text of the Free Exercise Clause or with the prevalent
understanding of the scope of the free-exercise right at the
time of the First Amendment’s adoption. It swept aside dec-
ades of established precedent, and it has not aged well. Its
interpretation has been undermined by subsequent schol-
arship on the original meaning of the Free Exercise Clause.
Contrary to what many initially expected, Smith has not
provided a clear-cut rule that is easy to apply, and experi-
ence has disproved the Smith majority’s fear that retention
of the Court’s prior free-exercise jurisprudence would lead
to “anarchy.” 494 U. S., at 888.
When Smith reinterpreted the Free Exercise Clause, four
Justices—Brennan, Marshall, Blackmun, and O’Connor—
registered strong disagreement. Id., at 891, 892 (O’Connor,
J., joined in part by Brennan, Marshall, and Blackmun, JJ.,
concurring in judgment); id., at 907–908 (Blackmun, J.,
joined by Brennan and Marshall, JJ., dissenting). After
——————
nation as provided in the D. C. Human Rights Act,” which prohibits dis-
crimination on the basis of sexual orientation); see also 110 Code Mass.
Regs. 1.09(1) (2008) (“No applicant for or recipient of Department [of
Children and Families] services shall, on the ground of . . . sexual orien-
tation . . . be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination in connection with any service,
program, or activity administered or provided by the Department”).
Cite as: 593 U. S. ____ (2021) 11
ALITO, J., concurring in judgment
joining the Court, Justice Souter called for Smith to be reex-
amined. Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U. S. 520, 559 (1993) (opinion concurring in part and
concurring in judgment). So have five sitting Justices. Ken-
nedy v. Bremerton School Dist., 586 U. S. ___, ___–___
(2019) (ALITO, J., joined by THOMAS, GORSUCH, and
KAVANAUGH, JJ., concurring in denial of certiorari) (slip
op., at 5–6); City of Boerne v. Flores, 521 U. S. 507, 566
(1997) (BREYER, J., dissenting). So have some of the coun-
try’s most distinguished scholars of the Religion Clauses.
See, e.g., McConnell, Free Exercise Revisionism and the
Smith Decision, 57 U. Chi. L. Rev. 1109 (1990) (McConnell,
Free Exercise Revisionism); Laycock, The Supreme Court’s
Assault on Free Exercise, and the Amicus Brief That Was
Never Filed, 8 J. L. & Religion 99 (1990). On two separate
occasions, Congress, with virtual unanimity, expressed the
view that Smith’s interpretation is contrary to our society’s
deep-rooted commitment to religious liberty. In enacting
the Religious Freedom Restoration Act of 1993, 107 Stat.
1488 (codified at 42 U. S. C. §2000bb et seq.), and the Reli-
gious Land Use and Institutionalized Persons Act of 2000,
114 Stat. 803 (codified at 42 U. S. C. §2000cc et seq.), Con-
gress tried to restore the constitutional rule in place before
Smith was handed down. Those laws, however, do not ap-
ply to most state action, and they leave huge gaps.
It is high time for us to take a fresh look at what the Free
Exercise Clause demands.
II
A
To fully appreciate what the Court did in Smith, it is nec-
essary to recall the substantial body of precedent that it dis-
placed. Our seminal decision on the question of religious
exemptions from generally applicable laws was Sherbert v.
Verner, 374 U. S. 398 (1963), which had been in place for
12 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
nearly three decades when Smith was decided. In that ear-
lier case, Adell Sherbert, a Seventh-day Adventist, was
fired because she refused to work on Saturday, her Sabbath
Day. 374 U. S., at 399. Unable to find other employment
that did not require Saturday work, she applied for unem-
ployment compensation but was rejected because state law
disqualified claimants who “ failed, without good cause . . .
to accept available suitable work when offered. ” Id., at
399–401, and n. 3 (internal quotation marks omitted). The
State Supreme Court held that this denial of benefits did
not violate Sherbert’s free-exercise right, but this Court re-
versed.
In an opinion authored by Justice Brennan, the Court be-
gan by surveying the Court’s few prior cases involving
claims for religious exemptions from generally applicable
laws. Id., at 402–403. In those decisions, the Court had not
articulated a clear standard for resolving such conflicts, but
as the Sherbert opinion accurately recounted, where claims
for religious exemptions had been rejected, “[t]he conduct
or actions [in question] invariably posed some substantial
threat to public safety, peace or order.” Id., at 403. (As will
be shown below, this description of the earlier decisions cor-
responds closely with the understanding of the scope of the
free-exercise right at the time of the First Amendment’s
adoption. See infra, at 29–36.)
After noting these earlier decisions, the Court turned to
the case at hand and concluded that the denial of benefits
imposed a substantial burden on Sherbert’s free exercise of
religion. 374 U. S., at 404. It “force[d] her to choose be-
tween following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of the pre-
cepts of her religion in order to accept work, on the other
hand.” Ibid. As a result, the Court reasoned, the decision
below could be sustained only if it was “justified by a ‘com-
pelling state interest.’ ” Id., at 403, 406. The State argued
that its law was needed to prevent “the filing of fraudulent
Cite as: 593 U. S. ____ (2021) 13
ALITO, J., concurring in judgment
claims by unscrupulous claimants feigning religious objec-
tions,” but Justice Brennan’s opinion found this justifica-
tion insufficient because the State failed to show that “no
alternative forms of regulation would combat such abuses
without infringing First Amendment rights.” Id., at 407.
The test distilled from Sherbert—that a law that imposes
a substantial burden on the exercise of religion must be nar-
rowly tailored to serve a compelling interest—was the gov-
erning rule for the next 27 years. Applying that test, the
Court sometimes vindicated free-exercise claims. In Wis-
consin v. Yoder, 406 U. S. 205, 234 (1972), for example, the
Court held that a state law requiring all students to remain
in school until the age of 16 violated the free-exercise rights
of Amish parents whose religion required that children
leave school after the eighth grade. The Court acknowl-
edged the State’s “admittedly strong interest in compulsory
education” but concluded that the State had failed to “show
with . . . particularity how [that interest] would be ad-
versely affected by granting an exemption to the Amish.”
Id., at 236. And in holding that the Amish were entitled to
a special exemption, the Court expressly rejected the inter-
pretation of the Free Exercise Clause that was later em-
braced in Smith. Indeed, the Yoder Court stated this point
again and again: “[T]here are areas of conduct protected by
the Free Exercise Clause of the First Amendment and thus
beyond the power of the State to control, even under regu-
lations of general applicability”; “[a] regulation neutral on
its face may, in its application, nonetheless offend the con-
stitutional requirement for governmental neutrality if it un-
duly burdens the free exercise of religion”; insisting that
Amish children abide by the compulsory attendance re-
quirement was unconstitutional even though it “applie[d]
uniformly to all citizens of the State and d[id] not, on its
face, discriminate against religions or a particular religion,
[and was] motivated by legitimate secular concerns.” Id.,
at 220 (emphasis added).
14 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
Other decisions also accepted free-exercise claims under
the Sherbert test. In Thomas v. Review Bd. of Ind. Employ-
ment Security Div., 450 U. S. 707, 710, 720 (1981), the Court
concluded that a State could not withhold unemployment
benefits from a Jehovah’s Witness who quit his job because
he refused to do work that he viewed as contributing to the
production of military weapons. In so holding, the Court
reiterated that “ ‘[a] regulation neutral on its face may, in
its application, nonetheless offend the constitutional re-
quirement for governmental neutrality if it unduly burdens
the free exercise of religion.’ ” Id., at 717 (quoting Yoder,
406 U. S., at 220).
Subsequently, in Hobbie v. Unemployment Appeals
Comm’n of Fla., 480 U. S. 136, 141 (1987), the Court found
that a state rule that was “ ‘neutral and uniform in its ap-
plication’ ” nevertheless violated the Free Exercise Clause
under the Sherbert test. A similar violation was found in
Frazee v. Illinois Dept. of Employment Security, 489 U. S.
829 (1989).
Other cases applied Sherbert but found no violation. In
United States v. Lee, 455 U. S. 252, 258 (1982), the Court
held that mandatory contributions to Social Security were
constitutional because they were “indispensable to the fis-
cal vitality of the social security system.” In Gillette v.
United States, 401 U. S. 437, 462 (1971), denying conscien-
tious-objector status to men whose opposition to war was
limited to one particular conflict was held to be “strictly jus-
tified by substantial governmental interests.” In still other
cases, the Court found Sherbert inapplicable either because
the challenged law did not implicate the conduct of the in-
dividual seeking an exemption, see Bowen v. Roy, 476 U. S.
693, 700 (1986); Lyng v. Northwest Indian Cemetery Protec-
tive Assn., 485 U. S. 439, 450–451 (1988), or because the
case arose in a context where the government exercised
broader authority over assertions of individual rights, see
O’Lone v. Estate of Shabazz, 482 U. S. 342, 353 (1987)
Cite as: 593 U. S. ____ (2021) 15
ALITO, J., concurring in judgment
(prison); Goldman v. Weinberger, 475 U. S. 503, 506 (1986)
(military). None of these decisions questioned the validity
of Sherbert’s interpretation of the free-exercise right.
B
This is where our case law stood when Smith reached the
Court. The underlying situation in Smith was very similar
to that in Sherbert. Just as Adell Sherbert had been denied
unemployment benefits due to conduct mandated by her re-
ligion (refraining from work on Saturday), Alfred Smith and
Galen Black were denied unemployment benefits because
of a religious practice (ingesting peyote as part of a worship
service of the Native American Church). 494 U. S., at 874.
Applying the Sherbert test, the Oregon Supreme Court held
that this denial of benefits violated Smith’s and Black’s
free-exercise rights, and this Court granted review.24
The State defended the denial of benefits under the Sher-
bert framework. It argued that it had a compelling interest
in combating the use of dangerous drugs and that accom-
modating their use for religious purposes would upset its
enforcement scheme. Brief for Petitioners in Employment
Div., Dept. of Human Resources v. Smith, No. 88–1213,
O. T. 1988, pp. 5–7, 12, 16. The State never suggested that
Sherbert should be overruled. See Brief for Petitioners in
No. 88–1213, at 11. Instead, the crux of its disagreement
with Smith and Black and the State Supreme Court was
whether its interest in preventing drug use could be served
——————
24 This Court actually granted review twice: once, after the state court
first held that the denial of benefits was unconstitutional, see Smith v.
Employment Div., Dept. of Human Resources, 301 Ore. 209, 220, 721
P. 2d 445, 451 (1986), cert. granted 480 U. S. 916 (1987), and then again
after the case was remanded for the state court to determine whether
peyote consumption for religious use was unlawful under Oregon law,
see Employment Div., Dept. of Human Resources of Ore. v. Smith, 485
U. S. 660, 662, 673–674 (1988). When the state court held that it was
and reaffirmed its prior decision, 307 Ore. 68, 72–73, 763 P. 2d 146, 147–
148 (1988), the Court granted certiorari, 489 U. S. 1077 (1989).
16 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
by a more narrowly tailored rule that made an exception for
religious use by members of the Native American Church.
The question divided the four Justices who objected to the
Smith majority’s rationale. Compare 494 U. S., at 905–907
(O’Connor J., concurring in judgment), with id., at 909–919
(Blackmun, J., joined by Brennan and Marshall, JJ., dis-
senting). And the Smith majority wanted no part of that
question. Instead, without briefing or argument on
whether Sherbert should be cast aside, the Court adopted
what it seems to have thought was a clear-cut test that
would be easy to apply: A “generally applicable and other-
wise valid” rule does not violate the Free Exercise Clause
“if prohibiting the exercise of religion . . . is not [its] object
. . . but merely the incidental effect of ” its operation. 494
U. S., at 878. Other than cases involving rules that target
religious conduct, the Sherbert test was held to apply to
only two narrow categories of cases: (1) those involving the
award of unemployment benefits or other schemes allowing
individualized exemptions and (2) so-called “hybrid rights”
cases. See 494 U. S., at 881–884.25
——————
25 JUSTICE BARRETT makes the surprising claim that “[a] longstanding
tenet of our free exercise jurisprudence” that “pre-dates” Smith is “that
a law burdening religious exercise must satisfy strict scrutiny if it gives
government officials discretion to grant individualized exemptions.”
Ante, at 2 (concurring opinion). If there really were such a “longstanding
[pre-Smith] tenet,” one would expect to find cases stating that rule, but
JUSTICE BARRETT does not cite even one such case. Instead, she claims
to find support by reading between the lines of what the Court said in a
footnote in Sherbert, 374 U. S., at 401, n. 4, and a portion of the opinion
in Cantwell v. Connecticut, 310 U. S. 296, 303–307 (1940)). Ante, at 2.
But even a close interlinear reading of those cases yields no evidence of
this supposed tenet.
In the Sherbert footnote, the Court responded to the dissent’s argu-
ment that South Carolina law did not recognize any exemptions from the
general eligibility requirement for unemployment benefits. 374 U. S., at419–420 (Harlan, J., dissenting). The footnote expressed skepticism
about this interpretation of South Carolina law, but it did not suggest
Cite as: 593 U. S. ____ (2021) 17
ALITO, J., concurring in judgment
To clear the way for this new regime, the majority was
willing to take liberties. Paying little attention to the terms
of the Free Exercise Clause, it was satisfied that its inter-
pretation represented a “permissible” reading of the text,
Smith, 494 U. S., at 878, and it did not even stop to explain
why that was so. The majority made no effort to ascertain
the original understanding of the free-exercise right, and it
limited past precedents on grounds never previously sug-
gested. Sherbert, Thomas, and Hobbie were placed in a spe-
cial category because they concerned the award of unem-
ployment compensation, Smith, 494 U. S., at 883, and
Yoder was distinguished on the ground that it involved both
a free-exercise claim and a parental-rights claim, Smith,
494 U. S., at 881. Not only did these distinctions lack sup-
port in prior case law, the issue in Smith itself could easily
be viewed as falling into both of these special categories.
After all, it involved claims for unemployment benefits, and
members of the Native American Church who ingest peyote
as part of a religious ceremony are surely engaging in ex-
pressive conduct that falls within the scope of the Free
Speech Clause. See, e.g., Texas v. Johnson, 491 U. S. 397,
——————
that its analysis would have been any different if the dissent’s interpre-
tation were correct.
In Cantwell, the Court addressed the constitutionality of a state stat-
ute that generally prohibited the solicitation of funds for religious pur-
poses unless a public official found in advance that the cause was au-
thentically religious. See 310 U. S., at 300–302. The Court held that the
Free Exercise Clause prohibited the State from conditioning permission
to solicit funds on an administrative finding about a religious group’s
authenticity, but the Court did not suggest that a blanket ban on solici-
tation would have necessarily been sustained. On the contrary, it said
that the State was “free to regulate the time and manner of solicitation
generally, in the interest of public safety, peace, comfort or convenience.”
Id., at 307–308 (emphasis added). And the Court said not one word about
“strict scrutiny,” a concept that was foreign to Supreme Court case law
at that time. See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267,
1284 (2007) (“Before 1960, what we would now call strict judicial scrutiny
. . . did not exist”).
18 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
404 (1989).
None of these obstacles stopped the Smith majority from
adopting its new rule and displacing decades of precedent.
The majority feared that continued adherence to that case
law would “cour[t] anarchy” because it “would open the pro-
spect of constitutionally required religious exemptions from
civic obligations of almost every conceivable kind.” 494
U. S., at 888. The majority recognized that its new inter-
pretation would place small religious groups at a “relative
disadvantage,” but the majority found that preferable to the
problems it envisioned if the Sherbert test had been re-
tained. 494 U. S., at 890.
Four Justices emphatically disagreed with Smith’s rein-
terpretation of the Free Exercise Clause. Justice O’Connor
wrote that this new reading “dramatically depart[ed] from
well-settled First Amendment jurisprudence” and was “in-
compatible with our Nation’s fundamental commitment to
individual religious liberty.” 494 U. S., at 891 (opinion con-
curring in judgment). Justices Brennan, Marshall, and
Blackmun protested that the majority had “mischarac-
teriz[ed]” and “discard[ed]” the Court’s free-exercise juris-
prudence on its way to “perfunctorily dismiss[ing]” the “set-
tled and inviolate principle” that state laws burdening
religious freedom may stand only if “justified by a compel-
ling interest that cannot be served by less restrictive
means.” Id., at 907–908 (Blackmun, J., joined by Brennan
and Marshall, JJ., dissenting).
Smith’s impact was quickly felt, and Congress was inun-
dated with reports of the decision’s consequences.26 In re-
sponse, it attempted to restore the Sherbert test. In the
——————
26 A particularly heartbreaking example was a case in which a judge
felt compelled by Smith to reverse his previous decision holding the state
medical examiner liable for performing the autopsy of a young Hmong
man who had been killed in a car accident. The young man’s parents
were tortured by the thought that the autopsy would prevent their son
Cite as: 593 U. S. ____ (2021) 19
ALITO, J., concurring in judgment
House, then-Representative Charles Schumer introduced a
bill that made a version of that test applicable to all actions
taken by the Federal Government or the States. H. R. 1308,
103d Cong., 1st Sess. (1993). This bill, which eventually
became the Religious Freedom Restoration Act (RFRA),
passed in the House without dissent, was approved in the
Senate by a vote of 97 to 3, and was enthusiastically signed
into law by President Clinton. 139 Cong. Rec. 27239–27341
(1993) (House voice vote); id., at 26416 (Senate vote); Re-
marks on Signing the Religious Freedom Restoration Act of
1993, 29 Weekly Comp. of Pres. Doc. 2377 (1993). And
when this Court later held in City of Boerne, 521 U. S. 507,
that Congress lacked the power under the 14th Amendment
to impose these rules on the States, Congress responded by
enacting the Religious Land Use and Institutionalized Per-
sons Act (RLUIPA) under its spending power and its power
to regulate interstate commerce. See 114 Stat. 803. Intro-
duced in the Senate by Sen. Orrin Hatch and cosponsored
by Sen. Edward Kennedy, RLUIPA imposed the same rules
as RFRA on land use and prison regulations. S. 2869, 106th
Cong., 2d Sess. (2000); 42 U. S. C. §2000cc et seq; 146 Cong.
Rec. 16698 (2000). RLUIPA passed both Houses of Con-
gress without a single negative vote and, like RFRA, was
signed by President Clinton. Id., at 16703, 16623; State-
ment on Signing the Religious Land Use and Institutional-
ized Persons Act of 2000, 36 Weekly Comp. of Pres. Doc.
——————
from entering the afterlife. See Yang v. Sturner, 750 F. Supp. 558, 560
(RI 1990); see also 139 Cong. Rec. 9681 (1993) (remarks of Rep. Ed-
wards). Members of Congress were also informed that veterans’ ceme-
teries had refused to allow burial on weekends even when that was re-
quired by the deceased’s religion, id., at 9687 (remarks of Rep. Cardin),
and that churches were prohibited from conducting services in areas
zoned for commercial and industrial uses, id., at 9684 (remarks of Rep.
Schumer). In just the first three years after Smith, more than 50 cases
were decided against religious claimants. 139 Cong. Rec., at 9685 (re-
marks of Rep. Hoyer); see also id., at 9684 (remarks of Rep. Schumer)
(“Smith was a devastating blow to religious freedom”).
20 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
2168 (2000).
RFRA and RLUIPA have restored part of the protection
that Smith withdrew, but they are both limited in scope and
can be weakened or repealed by Congress at any time. They
are no substitute for a proper interpretation of the Free Ex-
ercise Clause.
III
A
That project must begin with the constitutional text. In
Martin v. Hunter’s Lessee, 1 Wheat. 304, 338–339 (1816),
Justice Story laid down the guiding principle: “If the text be
clear and distinct, no restriction upon its plain and obvious
import ought to be admitted, unless the inference be irre-
sistible.” And even though we now have a thick body of
precedent regarding the meaning of most provisions of the
Constitution, our opinions continue to respect the primacy
of the Constitution’s text. See, e.g., Chiafalo v. Washington,
591 U. S. ___, ___–___ (2020) (slip op., at 9–13) (starting
with the text of Art. II, §1, before considering historical
practice); Knick v. Township of Scott, 588 U. S. ___, ___
(2019) (slip op., at 6) (beginning analysis with the text of
the Takings Clause); Gamble v. United States, 587 U. S.
___, ___–___ (2019) (slip op., at 3–4) (starting with the text
of the Fifth Amendment before turning to history and prec-
edent); City of Boerne, 521 U. S., at 519 (“In assessing the
breadth of §5’s enforcement power, we begin with its text”).
Smith, however, paid shockingly little attention to the
text of the Free Exercise Clause. Instead of examining
what readers would have understood its words to mean
when adopted, the opinion merely asked whether it was
“permissible” to read the text to have the meaning that the
majority favored. 494 U. S., at 878. This strange treatment
of the constitutional text cannot be justified—and is espe-
cially surprising since it clashes so sharply with the way in
which Smith’s author, Justice Scalia, generally treated the
Cite as: 593 U. S. ____ (2021) 21
ALITO, J., concurring in judgment
text of the Constitution (and, indeed, with his entire theory
of legal interpretation). As he put it, “What I look for in the
Constitution is precisely what I look for in a statute: the
original meaning of the text.” A. Scalia, A Matter of Inter-
pretation 38 (1997). See also NLRB v. Noel Canning, 573
U. S. 513, 575–583 (2014) (Scalia, J., concurring in judg-
ment); Stop the Beach Renourishment, Inc. v. Florida Dept.
of Environmental Protection, 560 U. S. 702, 722 (2010) (plu-
rality opinion of Scalia, J.); Maryland v. Craig, 497 U. S.
836, 860–861 (1990) (Scalia, J., dissenting).
Justice Scalia’s opinion for the Court in District of Colum-
bia v. Heller, 554 U. S. 570 (2008), is a prime example of his
usual approach, and it is a model of what a reexamination
of the Free Exercise Clause should entail. In Heller, after
observing that the “Constitution was written to be under-
stood by the voters,” Justice Scalia’s opinion begins by
presuming that the “words and phrases” of the Second
Amendment carry “their normal and ordinary . . . mean-
ing.” Id., at 576 (internal quotation marks omitted). The
opinion then undertakes a careful examination of all the
Amendment’s key terms. It does not simply ask whether
its interpretation of the text is “permissible.” Smith, 494
U. S., at 878.
B
Following the sound approach that the Court took in Hel-
ler, we should begin by considering the “normal and ordi-
nary” meaning of the text of the Free Exercise Clause: “Con-
gress shall make no law . . . prohibiting the free exercise [of
religion].” Most of these terms and phrases—“Congress,”27
——————
27 Although the First Amendment refers to “Congress,” we have held
that the Fourteenth Amendment—which references the entire “State,”
not just a legislature—makes the rights protected by the Amendment
applicable to the States. Gitlow v. New York, 268 U. S. 652 (1925); Ham-
ilton v. Regents of Univ. of Cal., 293 U. S. 245 (1934); Cantwell, 310 U. S.
22 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
——————
296; Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947). And we have
long applied that Amendment to actions taken by those responsible for
enforcing the law. See, e.g., Lyng v. Northwest Indian Cemetery Protec-
tive Assn., 485 U. S. 439 (1988) (considering First Amendment claim
based on federal agency’s decision); Thomas v. Review Bd. of Ind. Em-
ployment Security Div., 450 U. S. 707 (1981) (applying First Amendment
against a state agency); Pickering v. Board of Ed. of Township High
School Dist. 205, Will Cty., 391 U. S. 563 (1968) (applying First Amend-
ment against local board of education); see also U. S. Const., Amdt. 14,
§1 (“No State shall make or enforce any law which shall abridge the priv-
ileges or immunities of citizens of the United States” (emphasis added)).
Cite as: 593 U. S. ____ (2021) 23
ALITO, J., concurring in judgment
“shall make,” “no law,”28 and “religion”29—do not require
discussion for present purposes, and we can therefore focus
on what remains: the term “prohibiting” and the phrase
“the free exercise of religion.”
Those words had essentially the same meaning in 1791
——————
28 The phrase “no law” applies to the freedom of speech and the freedom
of the press, as well as the right to the free exercise of religion, and there
is no reason to believe that its meaning with respect to all these rights is
not the same. With respect to the freedom of speech, we have long held
that “no law” does not mean that every restriction on what a person may
say or write is unconstitutional. See, e.g., Miller v. California, 413 U. S.
15, 23 (1973); see also Federal Election Comm’n v. Wisconsin Right to
Life, Inc., 551 U. S. 449, 482 (2007) (opinion of ROBERTS, C. J.); Times
Film Corp. v. Chicago, 365 U. S. 43, 47–49 (1961). Many restrictions on
what a person could lawfully say or write were well established at the
time of the adoption of the First Amendment and have continued to this
day. Fraudulent speech, speech integral to criminal conduct, speech so-
liciting bribes, perjury, speech threatening physical injury, and obscenity
are examples. See, e.g., Donaldson v. Read Magazine, Inc., 333 U. S. 178,
190–191 (1948) (fraud); Giboney v. Empire Storage & Ice Co., 336 U. S.
490, 498 (1949) (speech integral to criminal conduct); McCutcheon v. Fed-
eral Election Comm’n, 572 U. S. 185, 191–192 (2014) (plurality opinion)
(quid pro quo bribes); United States v. Dunnigan, 507 U. S. 87, 96–97
(1993) (perjury); Virginia v. Black, 538 U. S. 343, 359 (2003) (threats);
Miller, 413 U. S., at 23 (obscenity). The First Amendment has never
been thought to have done away with all these rules. Alexander Mei-
klejohn reconciled this conclusion with the constitutional text: The First
Amendment “does not forbid the abridging of speech. But, at the same
time, it does forbid the abridging of the freedom of speech.” Free Speech
and Its Relation to Self-Government 19 (1948) (emphasis deleted). In
other words, the Free Speech Clause protects a right that was understood
at the time of adoption to have certain defined limits. See Konigsberg v.
State Bar of Cal., 366 U. S. 36, 49, and n. 10 (1961). As explained below,
the same is true of the Free Exercise Clause. See infra, at 28–36. No
one has ever seriously argued that the Free Exercise Clause protects
every conceivable religious practice or even every conceivable form of
worship, including such things as human sacrifice.
29 Whatever the outer boundaries of the term “religion” as used in the
First Amendment, there can be no doubt that CSS’s contested policy rep-
resents an exercise of “religion.”
24 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
as they do today. “To prohibit” meant either “[t]o forbid” or
“to hinder.” 2 S. Johnson, A Dictionary of the English Lan-
guage (1755) (Johnson (1755)).30 The term “exercise” had
both a broad primary definition (“[p]ractice” or “outward
performance”) and a narrower secondary one (an “[a]ct of
divine worship whether publick or private”). 1 id.31 (The
Court long ago declined to give the First Amendment’s ref-
erence to “exercise” this narrow reading. See, e.g., Cantwell
v. Connecticut, 310 U. S. 296, 303–304 (1940).) And “free,”
in the sense relevant here, meant “unrestrained.” 1 John-
son (1755).32
——————
30 See also N. Bailey, Universal Etymological English Dictionary (22d
ed. 1770) (Bailey) (“to forbid, to bar, to keep from”); T. Dyche & W. Par-
don, A New General English Dictionary (14th ed. 1771) (Dyche & Par-
don) (“to forbid, bar, hinder, or keep from any thing”); 2 Johnson (6th ed.
1785) (“1. To forbid, to interdict by authority. . . . 2. To debar; to hinder”);
2 J. Ash, The New & Complete Dictionary of the English Language (2d
ed. 1795) (Ash) (“To forbid, to interdict by authority; to debar, to hinder”);
2 N. Webster, An American Dictionary of the English Language (1828)
(Webster) (“1. To forbid; to interdict by authority; . . . 2. To hinder; to
debar; to prevent; to preclude”); 2 J. Boag, The Imperial Lexicon of the
English Language 275 (1850) (Boag) (“To forbid; to interdict by authority.
To hinder; to debar; to prevent; to preclude”).
31 See also Bailey (“to practice”); Dyche & Pardon (“to practice or do a
thing often; to employ one’s self frequently in the same thing”); 1 Ash
(“Practise, use, employment, a task, an act of divine worship”); 2 Johnson
(9th ed. 1805) (“Practice; outward performance”; “Act of divine worship,
whether publick or private”); 1 Webster (“1. Use, practice; . . . 2. Practice;
performance; as the exercise of religion . . . 10. Act of divine worship”); 1
Boag 503 (“Use; practice; . . . Practice; performance . . . Act of divine wor-
ship”).
32 See also Dyche & Pardon (“at liberty, that can do or refuse at his
pleasure, that is under no restraint”); 1 Ash (“Having liberty,” “unre-
strained,” ”exempt”); 1 Webster (“1. Being at liberty; not being under ne-
cessity or restraint, physical or moral . . . 5. Unconstrained; unre-
strained; not under compulsion or control”); 1 Boag 567–568 (“Being at
liberty; not being under necessity or restraint, physical or moral . . . Un-
constrained; unrestrained, not under compulsion or control. Permitted;
allowed; open; not appropriated. Not obstructed”).
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ALITO, J., concurring in judgment
If we put these definitions together, the ordinary mean-
ing of “prohibiting the free exercise of religion” was (and
still is) forbidding or hindering unrestrained religious prac-
tices or worship. That straightforward understanding is a
far cry from the interpretation adopted in Smith. It cer-
tainly does not suggest a distinction between laws that are
generally applicable and laws that are targeted.
As interpreted in Smith, the Clause is essentially an anti-
discrimination provision: It means that the Federal Gov-
ernment and the States cannot restrict conduct that consti-
tutes a religious practice for some people unless it imposes
the same restriction on everyone else who engages in the
same conduct. Smith made no real attempt to square that
equal-treatment interpretation with the ordinary meaning
of the Free Exercise Clause’s language, and it is hard to see
how that could be done.
The key point for present purposes is that the text of the
Free Exercise Clause gives a specific group of people (those
who wish to engage in the “exercise of religion”) the right to
do so without hindrance. The language of the Clause does
not tie this right to the treatment of persons not in this
group.
The oddity of Smith’s interpretation can be illustrated by
considering what the same sort of interpretation would
mean if applied to other provisions of the Bill of Rights.
Take the Sixth Amendment, which gives a specified group
of people (the “accused” in criminal cases) a particular right
(the right to the “Assistance of Counsel for [their] defence”).
Suppose that Congress or a state legislature adopted a law
banning counsel in all litigation, civil and criminal. Would
anyone doubt that this law would violate the Sixth Amend-
ment rights of criminal defendants?
Or consider the Seventh Amendment, which gives a spec-
ified group of people (parties in most civil “Suits at common
law”) “the right of trial by jury.” Would there be any ques-
26 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
tion that a law abolishing juries in all civil cases would vi-
olate the rights of parties in cases that fall within the Sev-
enth Amendment’s scope?
Other examples involving language similar to that in the
Free Exercise Clause are easy to imagine. Suppose that the
amount of time generally allotted to complete a state bar
exam is 12 hours but that applicants with disabilities se-
cure a consent decree allowing them an extra hour. Sup-
pose that the State later adopts a rule requiring all appli-
cants to complete the exam in 11 hours. Would anyone
argue that this was consistent with the decree?
Suppose that classic car enthusiasts secure the passage
of a state constitutional amendment exempting cars of a
certain age from annual safety inspections, but the legisla-
ture later enacts a law requiring such inspections for all ve-
hicles regardless of age. Can there be any doubt that this
would violate the state constitution?
It is not necessary to belabor this point further. What all
these examples show is that Smith’s interpretation conflicts
with the ordinary meaning of the First Amendment’s terms.
C
Is there any way to bring about a reconciliation? The
short answer is “no.” Survey all the briefs filed in support
of respondents (they total more than 40) and three decades
of law review articles, and what will you find? Philadel-
phia’s brief refers in passing to one possible argument—and
the source it cites is a law review article by one of Smith’s
leading academic critics, Professor Michael W. McConnell.
See Brief for City Respondents 49 (citing McConnell, Free
Exercise Revisionism 1115). Trying to see if there was any
way to make Smith fit with the constitutional text, Profes-
sor McConnell came up with this argument—but then re-
jected it. McConnell, Free Exercise Revisionism 1115–
1116.
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ALITO, J., concurring in judgment
The argument goes as follows: Even if a law prohibits con-
duct that constitutes an essential religious practice, it can-
not be said to “prohibit” the free exercise of religion unless
that was the lawmakers’ specific object.
This is a hair-splitting interpretation. It certainly does
not represent the “normal and ordinary” meaning of the
Free Exercise Clause’s terms. See Heller, 554 U. S., at 576.
Consider how it would play out if applied to some of the hy-
pothetical laws discussed at the beginning of this opinion.
A law categorically banning all wine would not “prohibit”
the celebration of a Catholic Mass? A law categorically for-
bidding the slaughter of a conscious animal would not “pro-
hibit” kosher and halal slaughterhouses? A rule categori-
cally banning any head covering in a courtroom would not
“prohibit” appearances by orthodox Jewish men, Sikh men,
and Muslim women who wear hijabs? It is no wonder that
Smith’s many defenders have almost uniformly forgone
this argument.
D
Not only is it difficult to square Smith’s interpretation
with the terms of the Free Exercise Clause, the absence of
any language referring to equal treatment is striking. If
equal treatment was the objective, why didn’t Congress say
that? And since it would have been simple to cast the Free
Exercise Clause in equal-treatment terms, why would the
state legislators who voted for ratification have read the
Clause that way?
It is not as if there were no models that could have been
used. Other constitutional provisions contain non-discrim-
ination language. For example, Art. I, §9, cl. 6, provides
that “[n]o Preference shall be given by any Regulation of
Commerce or Revenue to the Ports of one State over those
of another.” Under Art. IV, §2, cl. 1, “[t]he Citizens of each
State shall be entitled to all Privileges and Immunities of
Citizens in the several States.” Article V provides that “no
28 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
State, without its Consent, shall be deprived of its equal
Suffrage in the Senate.” Language mandating equal treat-
ment of one sort or another also appeared in the religious
liberty provisions of colonial charters and state constitu-
tions.33 But Congress eschewed those models. The contrast
between these readily available anti-discrimination models
and the language that appears in the First Amendment
speaks volumes.
IV
A
While we presume that the words of the Constitution
carry their ordinary and normal meaning, we cannot disre-
gard the possibility that some of the terms in the Free Ex-
ercise Clause had a special meaning that was well under-
stood at the time. Heller, again, provides a helpful example.
Heller did not hold that the right to keep and bear arms
means that everyone has the right to keep and bear every
type of weaponry in all places and at all times. Instead, it
held that the Second Amendment protects a known right
that was understood to have defined dimensions. 554 U. S.,
at 626–628.
Following Heller’s lead, we must ask whether the Free
Exercise Clause protects a right that was known at the time
——————
33 See, e.g., Del. Declaration of Rights §3 (1776), in The Complete Bill
of Rights 15 (N. Cogan ed. 1997) (Cogan) (“That all persons professing
the Christian religion ought forever to enjoy equal rights and privileges
in this state” (emphasis added)); Md. Declaration of Rights, Art. 33
(1776), in id., at 17 (“[A]ll persons professing the christian religion are
equally entitled to protection in their religious liberty” (emphasis
added)); N. Y. Const., Art. XXXVIII (1777), in id., at 26 (“[T]he free Ex-
ercise and Enjoyment of religious Profession and Worship, without Dis-
crimination or Preference, shall forever hereafter be allowed within this
State to all Mankind” (emphasis added)); S. C. Const., Art. VIII, §1
(1790), in id., at 41 (“The free exercise and enjoyment of religious profes-
sion and worship, without discrimination or preference, shall, forever
hereafter, be allowed within this state to all mankind” (emphasis
added)).
Cite as: 593 U. S. ____ (2021) 29
ALITO, J., concurring in judgment
of adoption to have defined dimensions. But in doing so, we
must keep in mind that there is a presumption that the
words of the Constitution are to be interpreted in accord-
ance with their “normal and ordinary” sense. Id., at 576
(internal quotation marks omitted). Anyone advocating a
different reading must overcome that presumption.
B
1
What was the free-exercise right understood to mean
when the Bill of Rights was ratified? And in particular, was
it clearly understood that the right simply required equal
treatment for religious and secular conduct? When Smith
was decided, scholars had not devoted much attention to
the original meaning of the Free Exercise Clause, and the
parties’ briefs ignored this issue, as did the opinion of the
Court. Since then, however, the historical record has been
plumbed in detail,34 and we are now in a good position to
——————
34 See, e.g., McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990) (McConnell, Or-
igins); McConnell, Free Exercise Revisionism 1109; McConnell, Freedom
From Persecution or Protection of the Rights of Conscience?: A Critique
of Justice Scalia’s Historical Arguments in City of Boerne v. Flores, 39
Wm. & Mary L. Rev. 819 (1998) (McConnell, Freedom From Persecution);
Hamburger, A Constitutional Right of Religious Exemption: An Histori-
cal Perspective, 60 Geo. Wash. L. Rev. 915 (1992) (Hamburger, Religious
Exemption); Hamburger, More Is Less, 90 Va. L. Rev. 835 (2004) (Ham-
burger, More Is Less); Laycock, Religious Liberty as Liberty, 7 J. Con-
temp. Legal Issues 313 (1996); Bradley, Beguiled: Free Exercise Exemp-
tions and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245 (1991);
Campbell, Note, A New Approach to Nineteenth Century Religious Ex-
emption Cases, 63 Stan. L. Rev. 973 (2011) (Campbell, A New Approach);
Kmiec, The Original Understanding of the Free Exercise Clause and Re-
ligious Diversity, 59 UMKC L. Rev. 591 (1991); Lash, The Second Adop-
tion of the Free Exercise Clause: Religious Exemptions Under the Four-
teenth Amendment, 88 Nw. U. L. Rev. 1106 (1994); Lombardi,
Nineteenth-Century Free Exercise Jurisprudence and the Challenge of
30 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
examine how the free-exercise right was understood when
the First Amendment was adopted.
By that date, the right to religious liberty already had a
long, rich, and complex history in this country. What ap-
pears to be the first “free exercise” provision was adopted in
1649. Prompted by Lord Baltimore,35 the Maryland Assem-
bly enacted a provision protecting the right of all Christians
to engage in “the free exercise” of religion.36 Rhode Island’s
1663 Charter extended the right to all. See Charter of
Rhode Island and Providence Plantations (1663), in Cogan
34. Early colonial charters and agreements in Carolina,
Delaware, New Jersey, New York, and Pennsylvania also
recognized the right to free exercise,37 and by 1789, every
——————
Polygamy: The Relevance of Nineteenth-Century Cases and Commen-
taries for Contemporary Debates About Free Exercise Exemptions, 85
Ore. L. Rev. 369 (2006) (Lombardi, Free Exercise); Muñoz, The Original
Meaning of the Free Exercise Clause: The Evidence From the First Con-
gress, 31 Harv. J. L. & Pub. Pol’y 1083 (2008) (Muñoz, Original Mean-
ing); Nestor, Note, The Original Meaning and Significance of Early State
Provisos to the Free Exercise of Religion, 42 Harv. J. L. & Pub. Pol’y 971
(2019) (Nestor); M. Nussbaum, Liberty of Conscience 120–130 (2008);
Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004)
(Walsh).
35 McConnell, Origins 1425 (describing Lord Baltimore’s directive to
the new Protestant governor and councilors of Maryland to refrain from
interfering with the “free exercise” of Christians, particularly Roman
Catholics).
36 Act Concerning Religion (1649), in Cogan 17; see also McConnell,
Origins 1425.
37 See Second Charter of Carolina (1665), in Cogan 27–28 (recognizing
the right of persons to “freely and quietly have and enjoy . . . their Judg-
ments and Consciences, in Matters of Religion” and declaring that “no
Person . . . shall be in any way molested, punished, disquieted, or called
in Question, for any Differences in Opinion, or Practice in Matters of re-
ligious Concernments, who do not actually disturb the Civil Peace”);
Charter of Delaware, Art. I (1701), in id., at 15 (ensuring “[t]hat no per-
son . . . who shall confess and acknowledge One Almighty God . . . shall
be in any case molested or prejudiced, in his . . . person or estate, because
of his . . . consciencious persuasion or practice, nor . . . to do or suffer any
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ALITO, J., concurring in judgment
State except Connecticut had a constitutional provision pro-
tecting religious liberty. McConnell, Origins 1455. In fact,
the Free Exercise Clause had more analogs in State Consti-
tutions than any other individual right. See Calabresi,
Agudo, & Dore, State Bills of Rights in 1787 and 1791: What
Individual Rights Are Really Deeply Rooted in American
History and Tradition? 85 S. Cal. L. Rev. 1451, 1463–1464,
——————
other act or thing, contrary to their religious persuasion”); Concession
and Agreement of the Lords Proprietors of the Province of New Caesarea,
or New-Jersey (1664), in id., at 23 (declaring the right of all persons to
“freely and fully have and enjoy . . . their Judgments and Consciences in
matters of Religion throughout the said Province” and ensuring “[t]hat
no person . . . at any Time shall be any ways molested, punished, disqui-
eted or called in question for any Difference in Opinion or Practice in
matter of Religious Concernments, who do not actually disturb the civil
Peace of the said Province”); Concessions and Agreements of West New-
Jersey, ch. XVI (1676), in id., at 24 (providing that “no Person . . . shall
be any ways upon any pretence whatsoever, called in Question, or in the
least punished or hurt, either in Person, Estate, or Priviledge, for the
sake of his Opinion, Judgment, Faith or Worship towards God in Matters
of Religion”); Laws of West New-Jersey, Art. X (1681), ibid. (“That Lib-
erty of Conscience in Matters of Faith and Worship towards God, shall
be granted to all People within the Province aforesaid; who shall live
peacably and quietly therein”); Fundamental Constitutions for East
New-Jersey, Art. XVI (1683), ibid. (“All Persons living in the Province
who confess and acknowledge the one Almighty and Eternal God, and
holds themselves obliged in Conscience to live peacably and quietly in a
civil Society, shall in no way be molested or prejudged for their Religious
Perswasions and Exercise in matters of Faith and Worship”); New York
Act Declaring . . . Rights & Priviledges (1691), in id., at 25 (“That no Per-
son . . . shall at any time be any way molested, punished, disturbed, dis-
quieted or called in question for any Difference in Opinion, or matter of
Religious Concernment, who do not under that pretence disturb the Civil
Peace of the Province”); Charter of Privileges Granted by William Penn
(1701), in id., at 31–32 (declaring that “no Person . . . who shall confess
and acknowledge One almighty God . . . and profess . . . themselves
obliged to live quietly under the Civil Government, shall be in any Case
molested or prejudiced . . . because of . . . their consciencious [sic] Per-
suasion or Practice, nor . . . suffer any other Act or Thing, contrary to
their religious Persuasion”).
32 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
1472–1473 (2012). In all of those State Constitutions, free-
dom of religion enjoyed broad protection, and the right “was
universally said to be an unalienable right.” McConnell,
Origins 1456.38
——————
38 See infra, at 34, and n. 43; N. J. Const., Art. XVIII (1776), in Cogan
25 (“THAT no Person shall ever within this Colony be deprived of the in-
estimable Privilege of worshipping Almighty GOD in a Manner agreeable
to the Dictates of his own Conscience; nor under any Pretence whatso-
ever compelled to attend any Place of Worship contrary to his own Faith
and Judgment”); N. C. Decl. of Rights §XIX (1776), in id., at 30 (“That all
Men have a natural and unalienable Right to worship Almighty God ac-
cording to the Dictates of their own Conscience”); Pa. Const., Declaration
of Rights of the Inhabitants of the State of Pa., Art. II (1776), in id., at
32 (“That all men have a natural and unalienable right to worship Al-
mighty God according to the dictates of their own consciences and under-
standing: And that no man ought to or of right can be compelled to attend
any religious worship, or erect or support any place of worship, or main-
tain any ministry, contrary to, or against, his own free will and consent:
Nor can any man, who acknowledges the being of a God, be justly de-
prived or abridged of any civil right as a citizen, on account of his reli-
gious sentiments or peculiar mode of religious worship: And that no au-
thority can or ought to be vested in, or assumed by any power whatever,
that shall in any case interfere with, or in any manner controul, the right
of conscience in the free exercise of religious worship”); Va. Declaration
of Rights, Art. XVI (1776), in id., at 44 (“THAT religion, or the duty which
we owe to our Creator, and the manner of discharging it, can be directed
only by reason and conviction, not by force or violence, and therefore all
men are equally entitled to the free exercise of religion, according to the
dictates of conscience; and that it is the mutual duty of all to practise
Christian forbearance, love, and charity, towards each other”); see also
Vt. Const., ch. 1, §3 (1777), in id., at 41 (“THAT all Men have a natural
and unalienable Right to worship ALMIGHTY GOD according to the Dic-
tates of their own Consciences and Understanding . . . and that no Man
ought or of Right can be compelled to attend any religious Worship, or
erect, or support any Place of Worship, or maintain any Minister con-
trary to the Dictates of his Conscience; nor can any Man who professes
the Protestant Religion, be justly deprived or abridged of any civil Right,
as a Citizen, on Account of his religious Sentiment, or peculiar Mode of
religious Worship, and that no Authority can, or ought to be vested in, or
assumed by any Power whatsoever, that shall in any Case interfere with,
or in any Manner control the Rights of Conscience, in the free Exercise
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ALITO, J., concurring in judgment
2
What was this right understood to protect? In seeking to
discern that meaning, it is easy to get lost in the voluminous
discussion of religious liberty that occurred during the long
period from the first British settlements to the adoption of
the Bill of Rights. Many different political figures, religious
leaders, and others spoke and wrote about religious liberty
and the relationship between the authority of civil govern-
ments and religious bodies. The works of a variety of think-
ers were influential, and views on religious liberty were in-
formed by religion, philosophy, historical experience,
particular controversies and issues, and in no small meas-
ure by the practical task of uniting the Nation. The picture
is complex.
For present purposes, we can narrow our focus and con-
centrate on the circumstances that relate most directly to
the adoption of the Free Exercise Clause. As has often been
recounted, critical state ratifying conventions approved the
Constitution on the understanding that it would be
amended to provide express protection for certain funda-
mental rights,39 and the right to religious liberty was un-
questionably one of those rights. As noted, it was expressly
protected in 12 of the 13 State Constitutions, and these
state constitutional provisions provide the best evidence of
the scope of the right embodied in the First Amendment.
When we look at these provisions, we see one predomi-
nant model. This model extends broad protection for reli-
gious liberty but expressly provides that the right does not
protect conduct that would endanger “the public peace” or
“safety.”
——————
of religious Worship”).
39 See McDonald v. Chicago, 561 U. S. 742, 769 (2010); see also Creat-
ing the Bill of Rights 281, 282 (H. Veit., K. Bowling, & C. Bickford eds.
1991); 1 A. Kelly, W. Harbison, & H. Belz, The American Constitution:
Its Origins and Development 110, 118 (7th ed. 1991).
34 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
This model had deep roots in early colonial charters. It
appeared in the Rhode Island Charter of 1663,40 the Second
Charter of Carolina in 1665,41 and the New York Act De-
claring Rights & Priviledges in 1691.42
By the founding, more than half of the State Constitu-
tions contained free-exercise provisions subject to a “peace
and safety” carveout or something similar. The Georgia
Constitution is a good example. It provided that “[a]ll per-
sons whatever shall have the free exercise of their religion;
provided it be not repugnant to the peace and safety of the
State.” Ga. Const., Art. LVI (1777), in Cogan 16 (emphasis
added). The founding era Constitutions of Delaware, Mar-
yland, Massachusetts, New Hampshire, New York, Rhode
Island, and South Carolina all contained broad protections
for religious exercise, subject to limited peace-and-safety
carveouts.43
——————
40 See Charter of Rhode Island and Providence Plantations (1663), in
Cogan 34 (protecting the free exercise of religion so long as residents “do
not Actually disturb the Civil Peace of Our said Colony” and “Behav[e]
themselves Peaceably and Quietly, And not Using This Liberty to Licen-
tiousness and Prophaneness; nor to the Civil Injury, or outward Disturb-
ance of others” (emphasis deleted)).
41 See Second Charter of Carolina (1665), in id., at 27–28 (guaranteeing
free exercise to persons “who do not actually disturb the Civil Peace” and
who “behav[e] themselves peaceably, and [do] not us[e] this Liberty to
Licentiousness, nor to the Civil Injury, or outward Disturbance of oth-
ers”).
42 New York Act Declaring . . . Rights & Priviledges (1691), in id., at 25
(protecting the right to free exercise for all persons “who do not under
that pretence disturb the Civil Peace” and who “behav[e] themselves
peaceably, quietly, modestly and Religiously, and [do] not us[e] this Lib-
erty to Licentiousness, nor to the civil Injury or outward Disturbance of
others”).
43 Del. Declaration of Rights §§2–3 (1776), in id., at 15 (“That all men
have a natural and unalienable right to worship Almighty God according
to the dictates of their own consciences and understandings . . . . That
all persons professing the Christian religion ought forever to enjoy equal
rights and privileges in this state, unless, under colour of religion, any
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ALITO, J., concurring in judgment
——————
man disturb the peace, the happiness or safety of society” (emphasis
added)); Md. Declaration of Rights, Art. 33 (1776), in id., at 17 (“That as
it is the duty of every man to worship God in such manner as he thinks
most acceptable to him, all persons professing the christian religion are
equally entitled to protection in their religious liberty, wherefore no per-
son ought by any law to be molested in his person or estate on account of
his religious persuasion or profession, or for his religious practice, unless
under colour of religion any man shall disturb the good order, peace or
safety of the state, or shall infringe the laws of morality, or injure others,
in their natural, civil or religious rights” (emphasis added)); Mass.
Const., pt. I, Art. II (1780), in id., at 20–21 (“It is the right as well as the
duty of all men in society, publickly, and at stated seasons, to worship
the SUPREME BEING, the Great Creator and Preserver of the Uni-
verse. And no subject shall be hurt, molested, or restrained, in his per-
son, liberty, or estate, for worshipping GOD in the manner and season
most agreeable to the dictates of his own conscience; or for his religious
profession or sentiments; provided he doth not disturb the publick peace,
or obstruct others in their religious worship” (emphasis added)); N. H.
Const., pt. I, Art. V (1783), in id., at 22–23 (“Every individual has a nat-
ural and unalienable right to worship GOD according to the dictates of
his own conscience, and reason; and no subject shall be hurt, molested,
or restrained in his person, liberty or estate for worshipping GOD in the
manner and season most agreeable to the dictates of his own conscience,
. . . provided he doth not disturb the public peace, or disturb others in
their religious worship” (emphasis added)); N. Y. Const., Art. XXXVIII
(1777), in id., at 26 (“[T]he free Exercise and Enjoyment of religious Pro-
fession and Worship, without Discrimination or Preference, shall forever
hereafter be allowed within this State to all Mankind. Provided, That
the Liberty of Conscience hereby granted, shall not be so construed, as
to excuse Acts of Licentiousness, or justify Practices inconsistent with the
Peace or Safety of this State” (some emphasis added)); Charter of Rhode
Island and Providence Plantations (1663), in id., at 34 (guaranteeing free
exercise for matters that “do not Actually disturb the Civil Peace of Our
said Colony” so long as persons “[b]ehav[e] themselves Peaceably and
Quietly, And [do] not Us[e] This Liberty to Licentiousness and Prophane-
ness; nor to the Civil Injury, or outward Disturbance of others” (some
emphasis added)); S. C. Const., Art. VIII, §1 (1790), in id., at 41 (“The
free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall, forever hereafter, be allowed within
this state to all mankind; provided that the liberty of conscience thereby
declared shall not be so construed as to excuse acts of licentiousness, or
justify practices inconsistent with the peace or safety of this state” (em-
phasis added)).
36 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
The predominance of this model is highlighted by its use
in the laws governing the Northwest Territory. In the
Northwest Ordinance of 1787, the Continental Congress
provided that “[n]o person, demeaning himself in a peacea-
ble and orderly manner, shall ever be molested on account
of his mode of worship, or religious sentiments, in the said
territory.” Art. I (emphasis added). After the ratification
of the Constitution, the First Congress used similar lan-
guage in the Northwest Ordinance of 1789. See Act of Aug.
7, 1789, 1 Stat. 52 (reaffirming Art. I of Northwest Ordi-
nance of 1787). Since the First Congress also framed and
approved the Bill of Rights, we have often said that its ap-
parent understanding of the scope of those rights is entitled
to great respect. See, e.g., Town of Greece v. Galloway, 572
U. S. 565, 575–578 (2014); Harmelin v. Michigan, 501 U. S.
957, 980 (1991) (opinion of Scalia, J.); Marsh v. Chambers,
463 U. S. 783, 786–792 (1983); Carroll v. United States, 267
U. S. 132, 150–151 (1925).
3
The model favored by Congress and the state legisla-
tures—providing broad protection for the free exercise of re-
ligion except where public “peace” or “safety” would be en-
dangered—is antithetical to Smith. If, as Smith held, the
free-exercise right does not require any religious exemp-
tions from generally applicable laws, it is not easy to imag-
ine situations in which a public-peace-or-safety carveout
would be necessary. Legislatures enact generally applica-
ble laws to protect public peace and safety. If those laws
are thought to be sufficient to address a particular type of
conduct when engaged in for a secular purpose, why
wouldn’t they also be sufficient to address the same type of
conduct when carried out for a religious reason?
Smith’s defenders have no good answer. Their chief re-
sponse is that the free-exercise provisions that included
these carveouts were tantamount to the Smith rule because
Cite as: 593 U. S. ____ (2021) 37
ALITO, J., concurring in judgment
any conduct that is generally prohibited or generally re-
quired can be regarded as necessary to protect public peace
or safety. See City of Boerne, 521 U. S., at 539 (Scalia, J.,
concurring in part) (“At the time these provisos were
enacted, keeping ‘peace’ and ‘order’ seems to have meant,
precisely, obeying the laws”).
This argument gives “public peace and safety” an unnat-
urally broad interpretation. Samuel Johnson’s 1755 dic-
tionary defined “peace” as: “1. Respite from war. . . . 2.
Quiet from suits or disturbances. . . . 3. Rest from any com-
motion. 4. Stil[l]ness from riots or tumults. . . . 5. Reconcil-
iation of differences. . . . 6. A state not hostile. . . . 7. Rest;
quiet; content; freedom from terrour; heavenly rest. . . .” 2
Johnson.44
In ordinary usage, the term “safety” was understood to
mean: “1. Freedom from danger. . . . 2. Exemption from
hurt. 3. Preservation from hurt. . . .” Ibid.45
When “peace” and “safety” are understood in this way, it
cannot be said that every violation of every law imperils
public “peace” or “safety.” In 1791 (and today), violations of
——————
44 See also 2 Webster (“1. In a general sense, a state of quiet or tran-
quility; freedom from disturbance or agitation. . . . 2. Freedom from war
with a foreign nation; public quiet. 3. Freedom from internal commotion
or civil war. 4. Freedom from private quarrels, suits or disturbance. 5.
Freedom from agitation or disturbance by the passions, as from fear, ter-
ror, anger, anxiety or the like; quietness of mind; tranquillity; calmness;
quiet of conscience. . . . 6. Heavenly rest; the happiness of heaven. . . . 7.
Harmony; concord; a state of reconciliation between parties at variance.
8. Public tranquility; that quiet, order and security which is guarauteed
by the laws; as, to keep the peace; to break the peace”); 2 Ash (“Rest,
quiet, respite from war, respite from tumult; reconciliation, an accommo-
dation of differences”).
45 See also Bailey (“Freedom from Danger, Custody, Security”); 2 Ash
(“Security from danger, freedom from hurt; custody, security from es-
cape”); 2 Webster (“[1.] Freedom from danger or hazard . . . . 2. Exemp-
tion from hurt, injury or loss. . . . 3. Preservation from escape; close cus-
tody. . . . 4. Preservation from hurt”).
38 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
many laws do not threaten “war,” “disturbances,” “commo-
tion,” “riots,” “terrour,” “danger,” or “hurt.” Blackstone cat-
alogs numerous violations that do not threaten any such
harms, including “cursing”;46 refusing to pay assessments
for “the repairs of sea banks and sea walls” and the “cleans-
ing of rivers, public streams, ditches and other conduits”;47
“retaining a man’s hired servant before his time is ex-
pired”;48 an attorney’s failure to show up for a trial;49 the
unauthorized “solemniz[ing of a] marriage in any other
place besides a church, or public chapel wherein banns have
been usually published”;50 “transporting and seducing our
artists to settle abroad”;51 engaging in the conduct of “a
common scold”;52 and “exercis[ing] a trade in any town,
without having previously served as an apprentice for seven
years.”53
In contrast to these violations, Blackstone lists “offences
against the public peace.” 4 Commentaries on the Laws of
England 142–153 (1769). Those include: riotous assem-
bling of 12 persons or more; unlawful hunting; anonymous
threats and demands; destruction of public floodgates,
locks, or sluices on a navigable river; public fighting; riots
or unlawful assemblies; “tumultuous” petitioning; forcible
entry or detainer; riding or “going armed” with dangerous
or unusual weapons; spreading false news to “make discord
between the king and nobility, or concerning any great man
of the realm”; spreading “false and pretended” prophecies
to disturb the peace; provoking breaches of the peace; and
——————
46 4 W. Blackstone, Commentaries on the Laws of England 59 (1769).
47 3 id., at 73–74 (1768).
48 Id., at 141–142.
49 Id., at 164.
50 4 id., at 163.
51 Id., at 160 (emphasis deleted).
52 Id., at 169 (emphasis deleted).
53 Id., at 160 (emphasis deleted).
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ALITO, J., concurring in judgment
libel “to provoke . . . wrath, or expose [an individual] to pub-
lic hatred, contempt, and ridicule.” Ibid. (emphasis de-
leted); see also McConnell, Freedom from Persecution 835–
836. These offenses might inform what constitutes actual
or threatened breaches of public peace or safety in the ordi-
nary sense of those terms.54 But the ordinary meaning of
offenses that threaten public peace or safety must be
stretched beyond the breaking point to encompass all viola-
tions of any law.55
——————
54 Some late 18th century and early 19th century dictionaries provided
special definitions of the term “peace” as used in the law, and these def-
initions fit the offenses on Blackstone’s list. See, e.g., 1 Johnson (6th ed.
1785) (“That general security and quiet which the king warrants to his
subjects, and of which he therefore avenges the violation; every forcible
injury is a breach of the king’s peace” (emphasis deleted)); 5 G. Jacob,
Law-Dictionary (1811) (“[P]articularly in law, [‘peace’] intends a quiet
behaviour towards the King and his Subjects”); Bailey (defining “peace”
in the “Law Sense” as “quiet and inoffensive Behaviour towards King and
Subject”).
55 Such an interpretation would also clash with the way in which the
scope of state legislative power was understood. If any violation of the
law had been regarded as a breach of public peace or safety, there would
have been no need for the lawmaking authority of a state legislature to
extend any further, but there is no evidence that state legislative author-
ity was understood that way. New York’s 1777 Constitution demon-
strates the point. As noted above, it protected free exercise unless a per-
son invoked that protection to “excuse Acts of Licentiousness, or justify
Practices inconsistent with the Peace or Safety of this State.” Art.
XXXVIII, in Cogan 26. But the New York Constitution authorized the
legislature to enact laws to further broader aims, including “good gov-
ernment, welfare, and prosperity.” Art. XIX, in 5 Federal and State Con-
stitutions 2633 (F. Thorpe ed. 1909). That authority obviously goes well
beyond the prohibition of “Practices inconsistent with” the “Peace” and
“Safety” (or “Licentiousness”). See McConnell, Freedom from Persecu-
tion 835–836. In like manner, State Constitutions and other declara-
tions of rights commonly proclaimed that government should pursue
broader goals, such as the promotion of “prosperity” and “happiness.”
See Nestor, Table III: Comparing the Provisos to the Scope of Legislative
Power (online source archived at www.supremecourt.gov).
40 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
C
That the free-exercise right included the right to certain
religious exemptions is strongly supported by the practice
of the Colonies and States. When there were important
clashes between generally applicable laws and the religious
practices of particular groups, colonial and state legisla-
tures were willing to grant exemptions—even when the
generally applicable laws served critical state interests.
Oath exemptions are illustrative. Oath requirements
were considered “indispensable” to civil society because
they were thought to ensure that individuals gave truthful
testimony and fulfilled commitments. McConnell, Origins
1467. Quakers and members of some other religious groups
refused to take oaths, ibid., and therefore a categorical oath
requirement would have resulted in the complete exclusion
of these Americans from important civic activities, such as
testifying in court and voting, see ibid.
Tellingly, that is not what happened. In the 1600s, Car-
olina allowed Quakers to enter a pledge rather than swear-
ing an oath. Ibid. In 1691, New York permitted Quakers
to give testimony after giving an affirmation. Ibid. Massa-
chusetts did the same in 1743. Id., at 1467–1468. In 1734,
New York also allowed Quakers to qualify to vote by mak-
ing an affirmation, and in 1740, Georgia granted an exemp-
tion to Jews, allowing them to omit the phrase “ ‘on the faith
of a Christian’ ” from the State’s naturalization oath. Id., at
1467. By 1789, almost all States had passed oath exemp-
tions. Id., at 1468.
Some early State Constitutions and declarations of rights
formally provided oath exemptions for religious objectors.
For instance, the Maryland Declaration of Rights of 1776
declared that Quakers, Mennonites, and members of some
other religious groups “ought to be allowed to make their
solemn affirmation” instead of an oath. §36, in Cogan 18.
Similarly, the Massachusetts Constitution of 1780 permit-
Cite as: 593 U. S. ____ (2021) 41
ALITO, J., concurring in judgment
ted Quakers holding certain government positions to de-
cline to take the prescribed oath of office, allowing affirma-
tions instead. Pt. II, ch. VI, Art. I, in id., at 22. The Federal
Constitution likewise permits federal and state officials to
make either an “Oath or Affirmation, to support this Con-
stitution.” Art. VI, cl. 3 (emphasis added); see also Art. I,
§3, cl. 6; Art. II, §1, cl. 8.
Military conscription provides an even more revealing ex-
ample. In the Colonies and later in the States, able-bodied
men of a certain age were required to serve in the militia,
see Heller, 554 U. S., at 595–596, but Quakers, Mennonites,
and members of some other religious groups objected to mi-
litia service on religious grounds, see McConnell, Origins
1468. The militia was regarded as essential to the security
of the State and the preservation of freedom, see Heller, 554
U. S., at 597–598, but colonial governments nevertheless
granted religious exemptions, see McConnell, Origins 1468.
Rhode Island, Maryland, North Carolina, and New Hamp-
shire did so in the founding era. Ibid. In 1755, New York
permitted a conscientious objector to obtain an exemption
if he paid a fee or sent a substitute. Ibid. Massachusetts
adopted a similar law two years later, and Virginia followed
suit in 1776. Ibid., and n. 297.
The Continental Congress also granted exemptions to re-
ligious objectors because conscription would do “violence to
their consciences.” Resolution of July 18, 1775, in 2 Jour-
nals of the Continental Congress, 1774–1789, p. 189 (W.
Ford ed. 1905) (quoted in McConnell, Origins 1469, and n.
299). This decision is especially revealing because during
that time the Continental Army was periodically in desper-
ate need of soldiers,56 the very survival of the new Nation
——————
56 Mayer, The Continental Army, in A Companion to the American Rev-
olution 309 (J. Greene & J. Pole eds. 2000); R. Wright, The Continental
Army 153–154, 163 (1983).
42 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
often seemed in danger,57 and the Members of Congress
faced bleak personal prospects if the war was lost.58 Yet
despite these stakes, exemptions were granted.
Colonies with established churches also permitted non-
members to decline to pay special taxes dedicated to the
support of ministers of the established church. McConnell,
Origins 1469. Massachusetts and Connecticut exempted
Baptists and Quakers in 1727. Ibid. Virginia provided ex-
emptions to Huguenots in 1700, German Lutherans in
1730, and dissenters from the Church of England in 1776.
Ibid.; see also S. Cobb, The Rise of Religious Liberty in
America 98, 492 (1902). Beginning in 1692, New Hamp-
shire exempted those who could prove they were “ ‘conscien-
tiously’ ” of a “ ‘different persuasion,’ ” regularly attended
their own religious services, and contributed financially to
their faith. McConnell, Origins 1469.
Various other religious exemptions were also provided.
North Carolina and Maryland granted exemptions from the
requirement that individuals remove their hats in court, a
gesture that Quakers viewed as an impermissible showing
of respect to a secular authority. Id., at 1471–1472. And
Rhode Island exempted Jews from some marriage laws. Id.,
at 1471.
In an effort to dismiss the significance of these legislative
——————
57 See The Oxford Companion to American Military History 606–608,
611 (J. Chambers ed. 1999).
58 See Declaration of Independence ¶ 31 (“[W]e mutually pledge to each
other our Lives, our Fortunes and our sacred Honor”); see also P. Maier,
American Scripture 152–153 (1997); Boyd, The Declaration of Independ-
ence: The Mystery of the Lost Original, 100 Pa. Mag. Hist. & Bio. 438,
445 (1976); L. Montross, The Reluctant Rebels 165 (1970); E. Burnett,
The Continental Congress 196–197 (1941). Of the 56 signers of the Dec-
laration of Independence, 9 were taken as prisoners of war; 2 had sons
who died; 3 had sons who were taken captive; 9 had their homes de-
stroyed; and 13 saw their homes occupied, confiscated, or damaged. M.
Novak, On Two Wings: Humble Faith and Common Sense at the Ameri-
can Founding 157–158 (2002).
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ALITO, J., concurring in judgment
exemptions, it has been argued that they show only what
the Constitution permits, not what it requires. City of
Boerne, 521 U. S., at 541 (opinion of Scalia, J.). But legis-
latures provided those accommodations before the concept
of judicial review took hold, and their actions are therefore
strong evidence of the founding era’s understanding of the
free-exercise right. See McConnell, Free Exercise Revision-
ism 1119. Cf. Heller, 554 U. S., at 600–603 (looking to state
constitutions that preceded the adoption of the Second
Amendment).
D
Defenders of Smith have advanced historical arguments
of their own, but they are unconvincing, and in any event,
plainly insufficient to overcome the ordinary meaning of the
constitutional text.
1
One prominent argument points to language in some
founding-era charters and constitutions prohibiting laws or
government actions that were taken “for” or “on account” of
religion. See City of Boerne, 521 U. S., at 538–539 (opinion
of Scalia, J.). That phrasing, it is argued, reaches only
measures that target religion, not neutral and generally ap-
plicable laws. This argument has many flaws.
No such language appears in the Free Exercise Clause,
and in any event, the argument rests on a crabbed reading
of the words “for” or “on account of ” religion. As Professor
McConnell has explained, “[i]f a member of the Native
American Church is arrested for ingesting peyote during a
religious ceremony, then he surely is molested ‘for’ or ‘on
account of ’ his religious practice—even though the law un-
der which he is arrested is neutral and generally applica-
ble.” Freedom From Persecution 834.
This argument also ignores the full text of many of the
provisions on which it relies. Id., at 833–834. While some
44 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
protect against government actions taken “for” or “on ac-
count of ” religion, they do not stop there. Instead, they go
on to provide broader protection for religious liberty. See,
e.g., Maryland Act Concerning Religion (1649), in Cogan 17
(guaranteeing residents not be “troubled . . . in the free ex-
ercise [of religion]”); New York Constitution (1777), in id.,
at 26 (guaranteeing “the free Exercise and Enjoyment of re-
ligious Profession and Worship”).
2
Another argument advanced by Smith’s defenders relies
on the paucity of early cases “refusing to enforce a generally
applicable statute because of its failure to make accommo-
dation,” City of Boerne, 521 U. S., at 542 (opinion of Scalia,
J.). If exemptions were thought to be constitutionally re-
quired, they contend, we would see many such cases.
There might be something to this argument if there were
a great many cases denying exemptions and few granting
them, but the fact is that diligent research has found only a
handful of cases going either way. Commentators have dis-
cussed the dearth of cases, and as they note, there are many
possible explanations.59 Early 19th century legislation im-
posed only limited restrictions on private conduct, and this
minimized the chances of conflict between generally appli-
cable laws and religious practices. The principal conflicts
that arose—involving oaths, conscription, and taxes to sup-
port an established church—were largely resolved by state
constitutional provisions and laws granting exemptions.
And the religious demographics of the time decreased the
likelihood of conflicts. The population was overwhelmingly
——————
59 See Barclay, The Historical Origins of Judicial Religious Exemp-
tions, 96 Notre Dame L. Rev. 55, 69–73 (2020); McConnell, Free Exercise
Revisionism 1118; Campbell, A New Approach 978, 987; Lombardi, Free
Exercise 385; Campbell, Religious Neutrality in the Early Republic, 24
Regent U. L. Rev. 311, 314–315, n. 20 (2012).
Cite as: 593 U. S. ____ (2021) 45
ALITO, J., concurring in judgment
Christian and Protestant, the major Protestant denomina-
tions made up the great bulk of the religious adherents,60
and other than with respect to the issue of taxes to support
an established church, it is hard to think of conflicts be-
tween the practices of the members of these denominations
and generally applicable laws that a state legislature might
have enacted.
Members of minority religions are most likely to en-
counter such conflicts, and the largest minority group, the
Quakers, who totaled about 10% of religious adherents,61
had received exemptions for the practices that conflicted
with generally applicable laws. As will later be shown, see
infra, at 46–50, the small number of religious-exemption
cases that occurred during the early 19th century involved
members of what were then tiny religious groups—such as
Catholics, Jews, and Covenanters.62 Given the size of these
groups, one would not expect a large number of cases. And
where cases arose, the courts’ decisions may not have al-
ways been reported. Barclay, The Historical Origins of Ju-
dicial Religious Exemptions, 96 Notre Dame L. Rev. 55, 70
(2020).
3
When the body of potentially relevant cases is examined,
they provide little support for Smith’s interpretation of the
——————
60 W. Newman & P. Halvorson, Atlas of American Religion 18 (2000).
61 Ibid.62 The Covenanters originated in Scotland, where they opposed the
Stuart kings’ right to rule over the Presbyterian Church. See Emery,
Church and State in the Early Republic: The Covenanters’ Radical Cri-
tique, 25 J. L. & Religion 487, 488 (2009). They immigrated to the United
States and, in the 1790s, organized a branch of the Reformed Presbyter-
ian Church. Id., at 489. Members subscribe to two foundational docu-
ments—the Scottish National Covenant of 1638 and the Solemn League
and Covenant of 1643—and believe in the supremacy of God over man in
both civil and ecclesiastical matters. Id., at 488; see also J. McFeeters,
The Covenanters in America: The Voice of Their Testimony on Present
Moral Issues 57 (1892).
46 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
free-exercise right. Not only are these decisions few in
number, but they reached mixed results. In addition, some
are unreasoned; some provide ambiguous explanations; and
many of the cases denying exemptions were based on
grounds that do not support Smith.
The most influential early case granting an exemption
was People v. Philips, 1 W. L. J. 109, 112–113 (Gen. Sess.,
N. Y. 1813), where the court held that a Catholic priest
could not be compelled to testify about a confession. The
priest’s refusal, the court reasoned, was protected by the
state constitutional right to the free exercise of religion and
did not fall within the exception for “acts of licentiousness”
and “practices inconsistent with the peace or safety of th[e]
State.”63 This, of course, is exactly the understanding of the
free-exercise right that is seen in the founding era State
Constitutions.
Although Philips was not officially reported, knowledge
of the decision appears to have spread widely. Four years
later, another New York court implicitly reaffirmed the
principle Philips recognized but found the decision inappli-
cable because the Protestant minister who was called to tes-
tify did not feel a religious obligation to refuse. See Smith’s
Case, 2 N. Y. City-Hall Recorder 77, 80, and n. (1817);
McConnell, Origins 1505–1506; Walsh 40–41.
In 1827, a South Carolina court relied on Philips as sup-
port for its decision to grant an exemption from a state law
relied on to bar the testimony of a witness who denied a
belief in punishment after death for testifying falsely, and
the State’s newly constituted high court approved that opin-
ion. Farnandis v. Henderson, 1 Carolina L. J. 202, 213, 214
(1827).64
In Commonwealth v. Cronin, 2 Va. Cir. 488, 498, 500, 505
——————
63 Privileged Communications to Clergymen, 1 Cath. Law. 199, 207–
209 (1955).
64 See also Walsh 41; Campbell, A New Approach 992, n. 99; Lombardi,
Free Exercise 408, and n. 152.
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ALITO, J., concurring in judgment
(1855), a Virginia court followed Philips and held that a
priest’s free-exercise right required an exemption from the
general common law rule compelling a witness to “disclose
all he may know” when giving testimony.
On the other side of the ledger, the most prominent oppo-
nent of exemptions was John Bannister Gibson of the Penn-
sylvania Supreme Court. Today, Gibson is best known for
his dissent in Eakin v. Raub, 12 Serg. & Rawle 330, 355–
356 (1825), which challenged John Marshall’s argument for
judicial review in Marbury v. Madison, 1 Cranch 137(1803). See McConnell, Origins 1507. Three years after
Eakin, Gibson’s dissent in Commonwealth v. Lesher, 17
Serg. & Rawle 155 (Pa. 1828), advanced a related argument
against decisions granting religious exemptions. Gibson
agreed that the state constitutional provision protecting re-
ligious liberty conferred the right to do or forbear from do-
ing any act “not prejudicial to the public weal,” but he ar-
gued that judges had no authority to override legislative
judgments about what the public weal required. Id., at
160–161 (emphasis deleted).
Three years later, he made a similar argument in dicta in
Philips’s Executors v. Gratz, 2 Pen. & W. 412, 412–413 (Pa.
1831), where a Jewish plaintiff had taken a non-suit
(agreed to a dismissal) in a civil case scheduled for trial on
a Saturday. Gibson’s opinion for the Court set aside the
non-suit on other grounds but rejected the plaintiff ’s reli-
gious objection to trial on Saturday. Id., at 416–417. He
proclaimed that a citizen’s obligation to the State must al-
ways take precedence over any religious obligation, and he
expressly registered disagreement with the New York
court’s decision in Philips. Id., at 417.
In South Carolina, an exemption claim was denied in
State v. Willson, 13 S. C. L. 393, 394–397 (1823), where the
court refused to exempt a member of the Covenanters reli-
gious movement from jury service. Because Covenanters
opposed the Constitution on religious grounds, they refused
48 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
to engage in activities, such as jury service and voting, that
required an oath to support the Constitution or otherwise
enlisted their participation in the Nation’s scheme of gov-
ernment.65 It is possible to read the opinion in Willson as
embodying something like the Smith rule—or as concluding
that granting the exemption would have opened the flood-
gates and undermined public peace and safety. See 13 S.
C. L., at 395 (“who could distinguish . . . between the pious
asseveration of a holy man and that of an accomplished vil-
lain”). But if Willson is read as rejecting religious exemp-
tions, South Carolina’s reconstituted high court reversed
that position in Farnandis.66
Other cases denying exemptions are even less helpful to
Smith’s defenders. Three decisions rejected challenges to
Sunday closing laws by merchants who celebrated Satur-
day as the Sabbath, but at least two of these were based on
the court’s conclusion that the asserted religious belief was
unfounded. See City Council of Charleston v. Benjamin, 33
S. C. L. 508, 529 (1846) (“There is . . . no violation of the
Hebrew’s religion, in requiring him to cease from labor on
another day than his Sabbath, if he be left free to observe
——————
65 See McFeeters, The Covenanters in America 121–129; id., at 122
(Covenanters “must refuse upon the grounds of honor, conscience, and
consistency, to be identified by oath or ballot with such a political sys-
tem”); id., at 129 (Covenanters “decline to take any responsible part in
the administration of civil power”); W. Gibson & A. McLeod, Reformation
Principles Exhibited, by the Reformed Presbyterian Church in the
United States of America 138 (1807) (“The juror voluntarily places him-
self upon oath, under the direction of a law which is immoral. The Re-
formed Presbytery declare this practice inconsistent with their Testi-
mony, and warn Church-members against serving on juries under the
direction of the constituted courts of law”).
66 See O’Neall, Early History of the Judiciary of South Carolina, p. xi,
in 1 Biographical Sketches of the Bench and Bar of South Carolina
(1859); Walsh 41–42 (explaining that South Carolina “dismantled” the
“five-member constitutional court” that decided Willson and replaced it
with a new high court—the South Carolina Court of Appeals—which con-
curred in the opinion in Farnandis).
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ALITO, J., concurring in judgment
the latter according to his religion” (emphasis deleted));
Commonwealth v. Wolf, 3 Serg. & Rawle 47, 50, 51 (Pa.
1817) (“[T]he Jewish Talmud . . . asserts no such doctrine”
and the objection was made “out of mere caprice”). That
reasoning is contrary to a principle that Smith reaffirmed:
“Repeatedly and in many different contexts, we have
warned that courts must not presume to determine . . . the
plausibility of a religious claim.” 494 U. S., at 887.
A third Sunday closing law decision appears to rest at
least in part on a similar ground. See Specht v. Common-
wealth, 8 Pa. 312 (1848). The court observed that the mer-
chant’s conscience rights might have been violated if his re-
ligion actually required him to work on Sunday, but the
court concluded that the commandment to keep holy the
Sabbath had never been understood to impose “an impera-
tive obligation to fill up each day of the other six with some
worldly employment.” Id., at 326.
Other cases cited as denying exemptions were decided on
nebulous grounds. In Stansbury v. Marks, 2 Dall. 213 (Pa.
1793), a decision of the Pennsylvania Supreme Court, the
case report in its entirety states: “In this cause (which was
tried on Saturday, the 5th of April) the defendant offered
Jonas Phillips, a Jew, as a witness; but he refused to be
sworn, because it was his Sabbath. The Court, therefore,
fined him £10; but the defendant, afterwards, waving the
benefit of his testimony, he was discharged from the fine.”
(Emphasis deleted.) What can be deduced from this cryptic
summary? Was the issue mooted when the defendant
waived the benefit of Phillips’s testimony? Who can tell?
In Commonwealth v. Drake, 15 Mass. 161 (1818), the Su-
preme Judicial Court of Massachusetts summarily affirmed
the conviction of a criminal defendant who was convicted
after the trial court admitted the testimony of his fellow
church members before whom he had confessed. The State
argued that the defendant had voluntarily confessed, that
his confession was not required by any “ecclesiastical rule,”
50 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
and that he had confessed “not to the church” but “to his
friends and neighbours.” Id., at 162. Because the court pro-
vided no explanation of its decision, this case sheds no light
on the understanding of the free-exercise right.
All told, this mixed bag of antebellum decisions does little
to support Smith, and extending the search past the Civil
War does not advance Smith’s cause. One of the objectives
of the Fourteenth Amendment, it has been argued, was to
protect the religious liberty of African-Americans in the
South, where a combination of laws that did not facially tar-
get religious practice had been used to suppress religious
exercise by slaves. See generally Lash, The Second Adop-
tion of the Free Exercise Clause: Religious Exemptions Un-
der the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106(1994).
4
Some have claimed that the drafting history of the Bill of
Rights supports Smith. See Brief for First Amendment
Scholars as Amici Curiae 10–11; Muñoz, Original Meaning
1085. But as Professor Philip Hamburger, one of Smith’s
most prominent academic defenders, has concluded,
“[w]hat any of this [history] implies about the meaning of
the Free Exercise Clause is speculative.” Religious Exemp-
tion 928.
Here is the relevant history. The House debated a provi-
sion, originally proposed by Madison, that protected the
right to bear arms but included language stating that “no
person, religiously scrupulous, shall be compelled to bear
arms.” 1 Annals of Cong. 749, 766 (1789); see also Muñoz,
Original Meaning 1112. Some Members spoke in favor of
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ALITO, J., concurring in judgment
the proposal,67 others opposed it,68 and in the end, after add-
ing the words “in person” at the end of the clause, the House
adopted it.69 The Senate, however, rejected the proposal
(for reasons not provided on the public record), id., at 1116,
and the House acceded to the deletion.
Those who claim that this episode supports Smith argue
that the House would not have found it necessary to include
this proviso in the Second Amendment if it had thought
that the Free Exercise Clause already protected conscien-
tious objectors from conscription, Muñoz, Original Meaning
1120, but that conclusion is unfounded. Those who favored
Madison’s language might have thought it necessary, not
because the free-exercise right never required religious ex-
emptions but because they feared that exemption from mil-
itary service would be held to fall into the free-exercise
right’s carveout for conduct that threatens public safety.70
And of course, it could be argued that the willingness of the
House to constitutionalize this exemption despite its poten-
tial effect on national security shows the depth of the Mem-
bers’ commitment to the concept of religious exemptions.
As for the Senate’s rejection of the proviso, we have often
warned against drawing inferences from Congress’s failure
to adopt a legislative proposal. See Schneidewind v. ANR
Pipeline Co., 485 U. S. 293, 306 (1988) (“This Court gener-
ally is reluctant to draw inferences from Congress’ failure
to act”); Brecht v. Abrahamson, 507 U. S. 619, 632–633
(1993) (collecting cases). And in this instance, there are
——————
67 Hamburger, Religious Exemption 928, and n. 56 (quoting the state-
ment of Rep. Boudinot).
68 Id., at 928, and n. 57 (quoting the statement of Rep. Benson).
69 Muñoz, Original Meaning 1115.
70 Several State Constitutions contained both Free Exercise Clause an-
alogs and provisions protecting conscientious objectors, and this has been
cited as evidence that the free-exercise analogs did not confer any right
to exemptions. See id., at 1118–1119. This argument is unpersuasive
for the reasons explained above.
52 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
many possible explanations for what happened in the Sen-
ate. The rejection of the proviso could have been due to a
general objection to religious exemptions, but it could also
have been based on any of the following grounds: opposition
to this particular exemption, the belief that conscientious
objectors were already protected by the Free Exercise
Clause, a belief that military service fell within the public
safety carveout, or the view that Congress should be able to
decide whether to grant or withhold such exemptions based
on its assessment of what national security required at par-
ticular times.
* * *
In sum, based on the text of the Free Exercise Clause and
evidence about the original understanding of the free-exer-
cise right, the case for Smith fails to overcome the more nat-
ural reading of the text. Indeed, the case against Smith is
very convincing.
V
That conclusion cannot end our analysis. “We will not
overturn a past decision unless there are strong grounds for
doing so,” Janus v. State, County, and Municipal Employ-
ees, 585 U. S. ___, ___ (2018) (slip op., at 34), but at the same
time, stare decisis is “not an inexorable command.” Ibid.
(internal quotation marks omitted). It “is at its weakest
when we interpret the Constitution because our interpreta-
tion can be altered only by constitutional amendment or by
overruling our prior decisions.” Agostini v. Felton, 521 U. S.
203, 235 (1997). And it applies with “perhaps least force of
all to decisions that wrongly denied First Amendment
rights.” Janus, 585 U. S., at ___ (slip op., at 34); see also
Federal Election Comm’n v. Wisconsin Right to Life, Inc.,
551 U. S. 449, 500 (2007) (Scalia, J., concurring in part and
concurring in judgment) (“This Court has not hesitated to
overrule decisions offensive to the First Amendment (a
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ALITO, J., concurring in judgment
fixed star in our constitutional constellation, if there is
one)” (internal quotation marks omitted)); Citizens United
v. Federal Election Comm’n, 558 U. S. 310, 365 (2010) (over-
ruling Austin v. Michigan Chamber of Commerce, 494 U. S.
652 (1990)); West Virginia Bd. of Ed. v. Barnette, 319 U. S.
624, 642 (1943) (overruling Minersville School Dist. v. Go-
bitis, 310 U. S. 586 (1940)).
In assessing whether to overrule a past decision that ap-
pears to be incorrect, we have considered a variety of fac-
tors, and four of those weigh strongly against Smith: its rea-
soning; its consistency with other decisions; the workability
of the rule that it established; and developments since the
decision was handed down. See Janus, 585 U. S., at ___–
___ (slip op., at 34–35). No relevant factor, including reli-
ance, weighs in Smith’s favor.
A
Smith’s reasoning. As explained in detail above, Smith is
a methodological outlier. It ignored the “normal and ordi-
nary” meaning of the constitutional text, see Heller, 554
U. S., at 576, and it made no real effort to explore the un-
derstanding of the free-exercise right at the time of the
First Amendment’s adoption. And the Court adopted its
reading of the Free Exercise Clause with no briefing on the
issue from the parties or amici. Laycock, 8 J. L. & Religion,
at 101.
Then there is Smith’s treatment of precedent. It looked
for precedential support in strange places, and the many
precedents that stood in its way received remarkably rough
treatment.
Looking for a case that had endorsed its no-exemptions
view, Smith turned to Gobitis, 310 U. S., at 586, a decision
that Justice Scalia himself later acknowledged was “erro-
neous,” Wisconsin Right to Life, Inc., 551 U. S., at 500–501
54 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
(opinion concurring in part). William Gobitas, 71 a 10-year-
old fifth grader, and his 12-year-old sister Lillian refused to
salute the flag during the Pledge of Allegiance because,
along with other Jehovah’s Witnesses, they thought the sa-
lute constituted idolatry. 310 U. S., at 591–592. 72 Wil-
liam’s “teacher tried to force his arm up, but William held
on to his pocket and successfully resisted.” 73 The Gobitas
children were expelled from school, and the family grocery
was boycotted. 74
This Court upheld the children’s expulsion because, in
ringing rhetoric quoted by Smith, “[c]onscientious scruples
have not, in the course of the long struggle for religious tol-
eration, relieved the individual from obedience to a general
law not aimed at the promotion or restriction of religious
beliefs.” 310 U. S., at 594; see also Smith, 494 U. S., at 879(quoting this passage). This declaration was overblown
when issued in 1940. (As noted, many religious exemptions
had been granted by legislative bodies, and the 1940 statute
instituting the peacetime draft continued that tradition by
exempting conscientious objectors. Selective Training and
Service Act, 54 Stat. 885, 889.) By 1990, when Smith was
handed down, the pronouncement flew in the face of nearly
30 years of Supreme Court precedent.
But even if all that is put aside, Smith’s recourse to Go-
bitis was surprising because the decision was overruled just
three years later when three of the Justices in the majority
had second thoughts. See Barnette, 319 U. S. 642; id., at
643–644 (Black and Douglas, JJ., concurring); id., at 644–
646 (Murphy, J., concurring). Turning Gobitis’s words on
——————
71 The family name was apparently misspelled in the case caption. See
Sutton, Barnette, Frankfurter, and Judicial Review, 96 Marq. L. Rev.
133, 134 (2012).
72 See also N. Feldman, Scorpions 179 (2010).
73 Ibid.74 Id., at 180.
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ALITO, J., concurring in judgment
their head, Barnette held that students with religious objec-
tions to saluting the flag were indeed “relieved . . . from obe-
dience to a general [rule] not aimed at the promotion or re-
striction of religious beliefs.” Gobitis, 310 U. S., at 594.
After reviving Gobitis’s anti-exemption rhetoric, Smith
turned to Reynolds v. United States, 98 U. S. 145, an 1879
decision upholding the polygamy conviction of a member of
the Church of Jesus Christ of Latter-day Saints. Unlike
Gobitis, Reynolds at least had not been overruled,75 but the
decision was not based on anything like Smith’s interpreta-
tion of the Free Exercise Clause. It rested primarily on the
proposition that the Free Exercise Clause protects beliefs,
not conduct. 98 U. S., at 166–167. The Court had repudi-
ated that distinction a half century before Smith was de-
cided. See Cantwell, 310 U. S., at 303–304; Murdock v.
Pennsylvania, 319 U. S. 105, 110–111, 117 (1943). And
Smith itself agreed! See 494 U. S., at 877.
The remaining pre-Sherbert cases cited by Smith actually
cut against its interpretation. None was based on the rule
that Smith adopted. Although these decisions ended up
denying exemptions, they did so on other grounds. In
Prince v. Massachusetts, 321 U. S. 158 (1944), where a Je-
hovah’s Witness who enlisted a child to distribute religious
literature was convicted for violating a state child labor law,
the decision was based on the Court’s assessment of the
strength of the State’s interest. Id., at 159–160, 162, 169–
170; see also Yoder, 406 U. S., at 230–231 (describing the
Prince Court’s rationale).
In Braunfeld v. Brown, 366 U. S. 599, 601, 609 (1961)
(plurality opinion), which rejected a Jewish merchant’s
challenge to Pennsylvania’s Sunday closing laws, the Court
balanced the competing interests. The Court attached di-
minished weight to the burden imposed by the law (because
——————
75 This discussion does not suggest that Reynolds should be overruled.
56 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
it did not require work on Saturday), id., at 606,76 and on
the other side of the balance, the Court accepted the Com-
monwealth’s view that the public welfare was served by
providing a uniform day of rest, id., at 608–609; see Sher-
bert, 374 U. S., at 408–409 (discussing Braunfeld).
When Smith came to post-Sherbert cases, the picture did
not improve. First, in order to place Sherbert, Hobbie, and
Thomas in a special category reserved for cases involving
unemployment compensation, an inventive transformation
was required. None of those opinions contained a hint that
they were limited in that way. And since Smith itself in-
volved the award of unemployment compensation benefits
under a scheme that allowed individualized exemptions, it
is hard to see why that case did not fall into the same cate-
gory.
The Court tried to escape this problem by framing Alfred
Smith’s and Galen Black’s free-exercise claims as requests
for exemptions from the Oregon law criminalizing the pos-
session of peyote, see 494 U. S., at 876, but neither Smith
nor Black was prosecuted for that offense even though the
State was well aware of what they had done. The State had
the discretion to decline prosecution based on the facts of
particular cases, and that is presumably what it did regard-
ing Smith and Black. Why this was not sufficient to bring
the case within Smith’s rule about individualized exemp-
tions is unclear. See McConnell, Free Exercise Revisionism
1124.
Having pigeon-holed Sherbert, Hobbie, and Thomas as
unemployment compensation decisions, Smith still faced
problems. For one thing, the Court had previously applied
the Sherbert test in many cases not involving unemploy-
ment compensation, including Hernandez v. Commissioner,
490 U. S. 680 (1989) (disallowance of tax deduction); Lee,
——————
76 “The clear implication was that a ‘direct’ interference would have
been unconstitutional.” McConnell, Free Exercise Revisionism 1125.
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ALITO, J., concurring in judgment
455 U. S. 252 (payment of taxes); and Gillette, 401 U. S. 437(denial of conscientious objector status to person with reli-
gious objection to a particular war). To get these cases out
of the way, Smith claimed that, because they ultimately
found no free-exercise violations, they merely “purported to
apply the Sherbert test.” 494 U. S., at 883 (emphasis
added).
This was a curious observation. In all those cases, the
Court invoked the Sherbert test but found that it did not
require relief. See Hernandez, 490 U. S., at 699; Lee, 455
U. S., at 257–260; Gillette, 401 U. S., at 462. Was the Smith
Court questioning the sincerity of these earlier opinions? If
not, then in what sense did those decisions merely “purport”
to apply Sherbert?
Finally, having swept all these cases from the board,
Smith still faced at least one big troublesome precedent:
Yoder. Yoder not only applied the Sherbert test but held
that the Free Exercise Clause required an exemption to-
tally unrelated to unemployment benefits. 406 U. S., at220–221, 236. To dispose of Yoder, Smith was forced to in-
vent yet another special category of cases, those involving
“hybrid-rights” claims. Yoder fell into this category because
it implicated both the Amish parents’ free-exercise claim
and a parental-rights claim stemming from Pierce v. Society
of Sisters, 268 U. S. 510 (1925). See Smith, 494 U. S., at
881. And in such hybrid cases, Smith held, the Sherbert
test survived. See 494 U. S., at 881–882.
It is hard to see the justification for this curious doctrine.
The idea seems to be that if two independently insufficient
constitutional claims join forces they may merge into a sin-
gle valid hybrid claim, but surely the rule cannot be that
asserting two invalid claims, no matter how weak, is always
enough. So perhaps the doctrine requires the assignment
of a numerical score to each claim. If a passing grade is 70
and a party advances a free-speech claim that earns a grade
of 40 and a free-exercise claim that merits a grade of 31, the
58 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
result would be a (barely) sufficient hybrid claim. Such a
scheme is obviously unworkable and has never been recog-
nized outside of Smith.
And then there is the problem that the hybrid-rights ex-
ception would largely swallow up Smith’s general rule. A
great many claims for religious exemptions can easily be
understood as hybrid free-exercise/free-speech claims.
Take the claim in Smith itself. To members of the Native
American Church, the ingestion of peyote during a religious
ceremony is a sacrament. When Smith and Black partici-
pated in this sacrament, weren’t they engaging in a form of
expressive conduct? Their ingestion of peyote “communi-
cate[d], in a rather dramatic way, [their] faith in the tenets
of the Native American Church,” and the State’s prohibition
of that practice “interfered with their ability to communi-
cate this message” in violation of the Free Speech Clause.
McConnell, Free Exercise Revisionism 1122. And, “if a hy-
brid claim is one in which a litigant would actually obtain
an exemption from a formally neutral, generally applicable
law under another constitutional provision, then there
would have been no reason for the Court in [the so-called]
hybrid cases to have mentioned the Free Exercise Clause at
all.” Lukumi, 508 U. S., at 566–567 (opinion of Souter, J.);
see also Laycock, 8 J. L. & Religion, at 106 (noting that
Smith “reduces the free exercise clause to a cautious redun-
dancy, relevant only to ‘hybrid’ cases”). It is telling that this
Court has never once accepted a “hybrid rights” claim in the
more than three decades since Smith.
In addition to all these maneuvers—creating special cat-
egories for unemployment compensation cases, cases in-
volving individualized exemptions, and hybrid-rights
cases—Smith ignored the multiple occasions when the
Court had directly repudiated the very rule that Smith
adopted. See supra, at 13–14.
Smith’s rough treatment of prior decisions diminishes its
own status as a precedent.
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ALITO, J., concurring in judgment
B
Consistency with other precedents. Smith is also discord-
ant with other precedents. Smith did not overrule Sherbert
or any of the other cases that built on Sherbert from 1963
to 1990, and for the reasons just discussed, Smith is tough
to harmonize with those precedents.
The same is true about more recent decisions. In Ho-
sanna-Tabor Evangelical Lutheran Church and School v.
EEOC, 565 U. S. 171 (2012), the Court essentially held that
the First Amendment entitled a religious school to a special
exemption from the requirements of the Americans with
Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C.
§12101 et seq. When the school discharged a teacher, she
claimed that she had been terminated because of disability.
565 U. S., at 178–179. Since the school considered her a
“minister” and she provided religious instruction for her
students, the school argued that her discharge fell within
the so-called “ministerial exception” to generally applicable
employment laws. Id., at 180. The Equal Employment Op-
portunity Commission maintained that Smith precluded
recognition of this exception because “the ADA’s prohibition
on retaliation, like Oregon’s prohibition on peyote use, is a
valid and neutral law of general applicability.” Id., at 190;
see id., at 189–190. We nevertheless held that the excep-
tion applied. Id., at 190.77 Similarly, in Our Lady of Gua-
dalupe School v. Morrissey-Berru, 591 U. S. ___, ___–___
——————
77 Our strained attempt to square the ministerial exception with Smith
highlights the tension between the two decisions. Smith held that a gen-
erally applicable law satisfies the First Amendment if “prohibiting the
exercise of religion . . . is not the object of the [government action] but
merely the incidental effect.” 494 U. S., at 878. But the ADA’s effect on
religion in Hosanna-Tabor was “incidental” in the sense in which the
term was used in Smith. The opinion in Hosanna-Tabor tried to distin-
guish Smith as involving only “outward physical acts” instead of “the
faith and mission of the church itself.” 565 U. S., at 190. But a prohibi-
tion of peyote use surely affected “the faith and mission” of the Native
American Church, which regards the ingestion of peyote as a sacrament.
60 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
(2020) (slip op., at 21–22), we found that other religious
schools were entitled to similar exemptions from both the
ADA and the Age Discrimination in Employment Act of
1967.
There is also tension between Smith and our opinion in
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Comm’n, 584 U. S. ___ (2018). In that case, we observed
that “[w]hen it comes to weddings, it can be assumed that a
member of the clergy who objects to gay marriage on moral
and religious grounds could not be compelled to perform the
ceremony without denial of his or her right to the free exer-
cise of religion.” Id., at ___ (slip op., at 10). The clear import
of this observation is that such a member of the clergy
would be entitled to a religious exemption from a state law
restricting the authority to perform a state-recognized mar-
riage to individuals who are willing to officiate both oppo-
site-sex and same-sex weddings.
Other inconsistencies exist. Smith declared that “a pri-
vate right to ignore generally applicable laws” would be a
“constitutional anomaly,” 494 U. S., at 886, but this Court
has often permitted exemptions from generally applicable
laws in First Amendment cases. For instance, in Boy
Scouts of America v. Dale, 530 U. S. 640, 656 (2000), we
granted the Boy Scouts an exemption from an otherwise
generally applicable state public accommodations law. In
Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc., 515 U. S. 557, 573 (1995), parade sponsors’
speech was exempted from the requirements of a similar
law.
The granting of an exemption from a generally applicable
law is tantamount to a holding that a law is unconstitu-
tional as applied to a particular set of facts, see Barclay &
Rienzi, Constitutional Anomalies or As-Applied Chal-
lenges? A Defense of Religious Exemptions, 59 Boston Col-
lege L. Rev. 1595, 1611 (2018), and cases holding generally
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ALITO, J., concurring in judgment
applicable laws unconstitutional as applied are unremark-
able. “[T]he normal rule is that partial, rather than facial,
invalidation is the required course, such that a statute may
. . . be declared invalid to the extent that it reaches too far,
but otherwise left intact.” Ayotte v. Planned Parenthood of
Northern New Eng., 546 U. S. 320, 329 (2006) (internal quo-
tation marks omitted; emphasis added). Thus, in Brown v.
Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87(1982), we held that a law requiring disclosure of campaign
contributions and expenditures could not be “constitution-
ally applied” to a minor party whose members and contrib-
utors would face “threats, harassment or reprisals.” Id., at
101–102. Cf. NAACP v. Alabama ex rel. Patterson, 357
U. S. 449, 466 (1958) (exempting the NAACP from a disclo-
sure order entered to purportedly investigate compliance
with a generally applicable statute). In Hustler Magazine,
Inc. v. Falwell, 485 U. S. 46, 56 (1988), and Snyder v.
Phelps, 562 U. S. 443, 459 (2011), the Court held that an
established and generally applicable tort claim (the inten-
tional infliction of emotional distress) could not constitu-
tionally be applied to the particular expression at issue.
Similarly, breach-of-the-peace laws, although generally
valid, have been held to violate the Free Speech Clause un-
der certain circumstances. See Cohen v. California, 403
U. S. 15, 16, 26 (1971); Cantwell, 310 U. S., at 300, 311; see
also Bartnicki v. Vopper, 532 U. S. 514, 517, 535 (2001) (re-
spondents not liable under law prohibiting disclosure of il-
legally intercepted communications because their speech
was protected by the First Amendment); United States v.
Treasury Employees, 513 U. S. 454, 477 (1995) (respondents
not subject to the honoraria ban because it would violate
their First Amendment rights); United States v. Grace, 461
U. S. 171, 175, 179, 183 (1983) (respondents engaging in ex-
pressive conduct on public sidewalks not subject to law gen-
erally regulating conduct on Supreme Court grounds).
Finally, Smith’s treatment of the free-exercise right is
62 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
fundamentally at odds with how we usually think about lib-
erties guaranteed by the Bill of Rights. As Justice Jackson
famously put it, “[t]he very purpose of a Bill of Rights was
to withdraw certain subjects from the vicissitudes of politi-
cal controversy, to place them beyond the reach of majori-
ties and officials.” Barnette, 319 U. S., at 638. Smith, by
contrast, held that protection of religious liberty was better
left to the political process than to courts. 494 U. S., at 890.
In Smith’s view, the Nation simply could not “afford the lux-
ury” of protecting the free exercise of religion from gener-
ally applicable laws. Id., at 888. Under this interpretation,
the free exercise of religion does not receive the judicial pro-
tection afforded to other, favored rights.
C
Workability. One of Smith’s supposed virtues was ease of
application, but things have not turned out that way. In-
stead, at least four serious problems have arisen and con-
tinue to plague courts when called upon to apply Smith.
1
“Hybrid-rights” cases. The “hybrid rights” exception,
which was essential to distinguish Yoder, has baffled the
lower courts. They are divided into at least three camps.
See Combs v. Homer-Center School Dist., 540 F. 3d 231,
244–247 (CA3 2008) (describing Circuit split). Some courts
have taken the extraordinary step of openly refusing to fol-
low this part of Smith’s interpretation. The Sixth Circuit
was remarkably blunt: “[H]old[ing] that the legal standard
under the Free Exercise Clause depends on whether a free-
exercise claim is coupled with other constitutional rights
. . . is completely illogical.” Kissinger v. Board of Trustees
of Ohio State Univ., 5 F. 3d 177, 180 (1993). The Second
and Third Circuits have taken a similar approach. See
Leebaert v. Harrington, 332 F. 3d 134, 144 (CA2 2003) (“We
. . . can think of no good reason for the standard of review
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ALITO, J., concurring in judgment
to vary simply with the number of constitutional rights that
the plaintiff asserts have been violated”); Knight v. Con-
necticut Dept. of Pub. Health, 275 F. 3d 156, 167 (CA2 2001);
Combs, 540 F. 3d, at 247 (“Until the Supreme Court pro-
vides direction, we believe the hybrid-rights theory to be
dicta”).
A second camp holds that the hybrid-rights exception ap-
plies only when a free-exercise claim is joined with some
other independently viable claim. See Archdiocese of Wash-
ington v. WMATA, 897 F. 3d 314, 331 (CADC 2018) (A “hy-
brid rights claim . . . requires independently viable free
speech and free exercise claims”); Gary S. v. Manchester
School Dist., 374 F. 3d 15, 19 (CA1 2004) (adopting District
Court’s reasoning that “the [hybrid-rights] exception can be
invoked only if the plaintiff has joined a free exercise chal-
lenge with another independently viable constitutional
claim,” 241 F. Supp. 2d 111, 121 (NH 2003)); Brown v. Hot,
Sexy and Safer Productions, 68 F. 3d 525, 539 (CA1 1995).
But this approach essentially makes the free-exercise claim
irrelevant. See Axson-Flynn v. Johnson, 356 F. 3d 1277,
1296–1297 (CA10 2004) (“[I]t makes no sense to adopt a
strict standard that essentially requires a successful com-
panion claim because such a test would make the free exer-
cise claim unnecessary”); see also Lukumi, 508 U. S., at 567(opinion of Souter, J.) (making the same point).
The third group requires that the non-free-exercise claim
be “colorable.” See Cornerstone Christian Schools v. Uni-
versity Interscholastic League, 563 F. 3d 127, 136, n. 8 (CA5
2009); San Jose Christian College v. Morgan Hill, 360 F. 3d
1024, 1032–1033 (CA9 2004); Axson-Flynn, 356 F. 3d, at1295–1297. But what that means is obscure. See, e.g., id.,
at 1295 (referring to “helpful” analogies such as the “ ‘like-
lihood of success on the merits’ standard for preliminary in-
junctions” or the pre-Antiterrorism and Effective Death
Penalty Act standard for obtaining an evidentiary hearing,
64 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
i.e., a “ ‘colorable showing of factual innocence’ ”).78
It is rare to encounter a holding of this Court that has so
thoroughly stymied or elicited such open derision from the
Courts of Appeals.
2
Rules that “target” religion. Post-Smith cases have also
struggled with the task of determining whether a pur-
portedly neutral rule “targets” religious exercise or has the
restriction of religious exercise as its “object.” Lukumi, 508
U. S., at 534; Smith, 494 U. S., at 878. A threshold question
is whether “targeting” calls for an objective or subjective in-
quiry. Must “targeting” be assessed based solely on the
terms of the relevant rule or rules? Or can evidence of the
rulemakers’ motivation be taken into account? If subjective
motivations may be considered, does it matter whether the
challenged state action is an adjudication, the promulga-
tion of a rule, or the enactment of legislation? Should courts
consider the motivations of only the officials who took the
challenged action, or may they also take into account com-
ments by superiors and others in a position of influence?
And what degree of hostility to religion or a religious group
is required to prove “targeting”?
The genesis of this problem was Smith’s holding that a
rule is not neutral “if prohibiting the exercise of religion” is
its “object.” 494 U. S., at 878. Smith did not elaborate on
what that meant, and later in Lukumi, which concerned
city ordinances that burdened the practice of Santeria, 508
U. S., at 525–528, Justices in the Smith majority adopted
different interpretations. Justice Scalia and Chief Justice
——————
78 Recently, some lower courts have proceeded under yet another ap-
proach, which analyzes whether the claims presented are sufficiently
similar to those raised in the cases that this Court purported to distin-
guish in Smith. See Henderson v. McMurray, 987 F. 3d 997, 1006–1007
(CA11 2021); see also Illinois Bible Colleges Assn. v. Anderson, 870 F. 3d
631, 641 (CA7 2017).
Cite as: 593 U. S. ____ (2021) 65
ALITO, J., concurring in judgment
Rehnquist took the position that the “object” of a rule must
be determined by its terms and that evidence of the rule-
makers’ motivation should not be considered. 508 U. S., at557–559. This interpretation had the disadvantage of al-
lowing skillful rulemakers to target religious exercise by de-
vising a facially neutral rule that applies to both the tar-
geted religious conduct and a slice of secular conduct that
can be burdened without eliciting unacceptable opposition
from those whose interests are affected.
The alternative to this approach takes courts into the dif-
ficult business of ascertaining the subjective motivations of
rulemakers. In Lukumi, Justices Kennedy and Stevens
took that path and relied on numerous statements by coun-
cil members showing that their object was to ban the prac-
tice of Santeria within the city’s borders. Id., at 540–542.
Thus, Lukumi left the meaning of a rule’s “object” up in the
air.
When the issue returned in Masterpiece Cakeshop, the
question was only partially resolved. Holding that the Col-
orado Civil Rights Commission violated the free-exercise
rights of a baker who refused for religious reasons to create
a cake for a same-sex wedding, the Court pointed to dispar-
aging statements made by commission members, and the
Court noted that these comments, “by an adjudicatory body
deciding a particular case,” “were made in a very different
context” from the remarks by the council members in
Lukumi. Masterpiece Cakeshop, 584 U. S., at ___ (slip op.,
at 14). That is as far as this Court’s decisions have gone on
the question of targeting, and thus many important ques-
tions remain open.
The present case highlights two—specifically, which offi-
cials’ motivations are relevant and what degree of dispar-
agement must be shown to establish unconstitutional tar-
geting. In Masterpiece Cakeshop, the commissioners’
statements—comparing the baker’s actions to the Holo-
caust and slavery and suggesting that his beliefs were just
66 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
an excuse for bigotry—went too far. Id., at ___–___ (slip op.,
at 12–14). But what about the comments of Philadelphia
officials in this case? The city council labeled CSS’s policy
“discrimination that occurs under the guise of religious
freedom.” App. to Pet. for Cert. 147a. The mayor had said
that the Archbishop’s actions were not “Christian,” and he
once called on the Pope “to kick some ass here.” Id., at 173a,
177a–178a. In addition, the commissioner of the Depart-
ment of Human Services (DHS), who serves at the mayor’s
pleasure,79 disparaged CSS’s policy as out of date and out of
touch with Pope Francis’s teachings.80
The Third Circuit found this evidence insufficient. Alt-
hough the mayor conferred with the DHS commissioner
both before and after her meeting with CSS representa-
tives, the mayor’s remarks were disregarded because there
was no evidence “that he played a direct role, or even a sig-
nificant role, in the process.” 922 F. 3d, at 157 (emphasis
added). The city council’s suggestion that CSS’s religious
liberty claim was a “guise” for discrimination was found to
“fal[l] into [a] grey zone,” and the commissioner’s debate
with a CSS representative about up-to-date Catholic teach-
ing, which “some might think . . . improper” “if taken out of
context” was “best viewed as an effort to reach common
——————
79 App. 367–369 (Commissioner Figueora testifying that she was ap-
pointed by the mayor, reports ultimately to him, and considers herself
part of his administration); Phila. Home Rule Charter, Art. IX, ch. 2, §9–
200 (Removal of Appointive Officers).
80 App. 182, 365–366. Apart from the statements made by City offi-
cials, other evidence suggested that the City was targeting CSS. For in-
stance, the City changed its justification for the closure of intake to CSS
numerous times. Brief for Petitioners 12–15 (describing six different jus-
tifications). And although the City’s stated harm was that CSS’s process
for certifying new families was discriminatory, it responded by prohibit-
ing placement with all CSS families, including those already certified.
The City’s response therefore appears to “proscribe more religious con-
duct than is necessary to achieve [its] stated ends.” Lukumi, 508 U. S.,
at 538.
Cite as: 593 U. S. ____ (2021) 67
ALITO, J., concurring in judgment
ground with [CSS] by appealing to an authority within their
shared religious tradition.” Ibid. One may agree or disa-
gree with the Third Circuit’s characterization and evalua-
tion of the statements of the City officials, but the court’s
analysis highlights the extremely impressionistic inquiry
that Smith’s targeting requirement may entail.
Confusion and disagreement about “targeting” have sur-
faced in other cases. Recently in Roman Catholic Diocese of
Brooklyn v. Cuomo, 592 U. S. ___ (2020) (per curiam), there
were conflicting views about comments made by the Gover-
nor of New York. On the day before he severely restricted
religious services in Brooklyn, the Governor “said that if the
‘ultra-Orthodox [Jewish] community’ would not agree to en-
force the rules, ‘then we’ll close the institutions down.’ ”
Agudath Israel of America v. Cuomo, 980 F. 3d 222, 229
(CA2 2020) (Park, J., dissenting). A dissenting judge on the
Second Circuit thought the Governor had crossed the line,
ibid., and we ultimately enjoined enforcement of the rules,
Roman Catholic Diocese, 592 U. S., at ___. But two Justices
who dissented found the Governor’s comments inconse-
quential. Id., at ___–___ (slip op., at 4–5) (opinion of
SOTOMAYOR, J., joined by KAGAN, J.).
In Stormans, Inc. v. Wiesman, 579 U. S. ___ (2016) (deny-
ing certiorari), there was similar disagreement. That case
featured strong evidence that pro-life Christian pharma-
cists who refused to dispense emergency contraceptives
were the object of a new rule requiring every pharmacy to
dispense every Food and Drug Administration-approved
drug. A primary drafter of the rule all but admitted that
the rule was aimed at these pharmacists, and the Governor
took unusual steps to secure adoption of the rule. Stor-
mans, Inc. v. Selecky, 854 F. Supp. 2d 925, 937–943 (WD
Wash. 2012). After a 12-day trial, the District Court found
that Christian pharmacists had been targeted, id., at 966,
987, but the Ninth Circuit refused to accept that finding,
68 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
Stormans, Inc., 794 F. 3d 1064, 1079 (2015). Compare Stor-
mans, Inc., 579 U. S., at ___–___, and n. 3 (ALITO, J., joined
by ROBERTS, C. J., and THOMAS, J., dissenting from denial
of certiorari) (slip op., at 8–9, and n. 3) (questioning Ninth
Circuit’s finding).
Decisions of the lower courts on the issue of targeting re-
main in disarray. Compare F. F. v. State, 66 Misc. 3d 467,
479–482, 114 N. Y. S. 3d 852, 865–867 (2019) (declining to
consider individual legislators’ comments); Tenafly Eruv
Assn., Inc. v. Tenafly, 309 F. 3d 144, 168, n. 30 (CA3 2002)
(declining to reach issue), with Commack Self-Service Ko-
sher Meats, Inc. v. Hooker, 680 F. 3d 194, 211 (CA2 2012)
(considering legislative history); St. John’s United Church
of Christ v. Chicago, 502 F. 3d 616, 633 (CA7 2007) (“[W]e
must look at . . . the ‘historical background of the decision
under challenge’ ” (quoting Lukumi, 508 U. S., at 540));
Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle,
212 F. 3d 1084, 1090 (CA8 2000) (targeting can be evi-
denced by legislative history).
3
The nature and scope of exemptions. There is confusion
about the meaning of Smith’s holding on exemptions from
generally applicable laws. Some decisions apply this spe-
cial rule if multiple secular exemptions are granted. See,
e.g., Horen v. Commonwealth, 23 Va. App. 735, 743–744,
479 S. E. 2d 553, 557 (1997); Rader v. Johnston, 924
F. Supp. 1540, 1551–1553 (Neb. 1996). Others conclude
that even one secular exemption is enough. See, e.g., Mid-
rash Sephardi, Inc. v. Surfside, 366 F. 3d 1214, 1234–1235
(CA11 2004); Fraternal Order of Police Newark Lodge No.
12 v. Newark, 170 F. 3d 359, 365 (CA3 1999). And still oth-
ers have applied the rule where the law, although allowing
no exemptions on its face, was widely unenforced in cases
involving secular conduct. See, e.g., Tenafly Eruv Assn.,
309 F. 3d, at 167–168.
Cite as: 593 U. S. ____ (2021) 69
ALITO, J., concurring in judgment
4
Identifying appropriate comparators. To determine
whether a law provides equal treatment for secular and re-
ligious conduct, two steps are required. First, a court must
identify the secular conduct with which the religious con-
duct is to be compared. Second, the court must determine
whether the State’s reasons for regulating the religious con-
duct apply with equal force to the secular conduct with
which it is compared. See Lukumi, 508 U. S., at 543. In
Smith, this inquiry undoubtedly seemed straightforward:
The secular conduct and the religious conduct prohibited by
the Oregon criminal statute were identical. But things are
not always that simple.
Cases involving rules designed to slow the spread of
COVID–19 have driven that point home. State and local
rules adopted for this purpose have typically imposed dif-
ferent restrictions for different categories of activities.
Sometimes religious services have been placed in a category
with certain secular activities, and sometimes religious ser-
vices have been given a separate category of their own. To
determine whether COVID–19 rules provided neutral
treatment for religious and secular conduct, it has been nec-
essary to compare the restrictions on religious services with
the restrictions on secular activities that present a compa-
rable risk of spreading the virus, and identifying the secu-
lar activities that should be used for comparison has been
hotly contested.
In South Bay United Pentecostal Church v. Newsom, 590
U. S. ___ (2020), where the Court refused to enjoin re-
strictions on religious services, THE CHIEF JUSTICE’s con-
currence likened religious services to lectures, concerts,
movies, sports events, and theatrical performances. Id., at
___ (slip op., at 2). The dissenters, on the other hand, fo-
cused on “supermarkets, restaurants, factories, and of-
fices.” Id., at ___ (opinion of KAVANAUGH, J., joined by
THOMAS and GORSUCH, JJ.) (slip op., at 3).
70 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
In Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___
(2020), Nevada defended a rule imposing severe limits on
attendance at religious services and argued that houses of
worship should be compared with “movie theaters, muse-
ums, art galleries, zoos, aquariums, trade schools, and tech-
nical schools.” Response to Emergency Application for In-
junction, O. T. 2019, No. 19A1070, pp. 7, 14–15. Members
of this Court who would have enjoined the Nevada rule
looked to the State’s more generous rules for casinos, bowl-
ing alleys, and fitness facilities. 591 U. S., at ___–___
(ALITO, J., joined by THOMAS and KAVANAUGH, JJ., dissent-
ing) (slip op., at 6–7).
In Roman Catholic Diocese of Brooklyn, 592 U. S. ___,
Justices in the majority compared houses of worship with
large retail establishments, factories, schools, liquor stores,
bicycle repair shops, and pet shops, id., at ___ (slip op., at
3); id., at ___ (GORSUCH, J., concurring) (slip op., at 2), id.,at ___ (KAVANAUGH, J., concurring) (slip op., at 2), while
dissenters cited theaters and concert halls, id., at ___ (opin-
ion of SOTOMAYOR, J., joined by KAGAN, J.) (slip op., at 2).
In Danville Christian Academy, Inc. v. Beshear, 592 U. S.
___ (2020), the District Court enjoined enforcement of an
executive order that compelled the closing of a religiously
affiliated school, reasoning that the State permitted pre-
schools, colleges, and universities to stay open and also al-
lowed attendance at concerts and lectures. Danville Chris-
tian Academy, Inc. v. Beshear, ___ F. Supp. 3d ___, 2020 WL
6954650, *4 (ED Ky., Nov. 25, 2020). The Sixth Circuit re-
versed, concluding that the rule was neutral and generally
applicable because it applied to all elementary and second-
ary schools, whether secular or religious. Kentucky ex rel.
Danville Christian Academy, Inc. v. Beshear, 981 F. 3d 505,
509 (2020).
Much of Smith’s initial appeal was likely its apparent
simplicity. Smith seemed to offer a relatively simple and
clear-cut rule that would be easy to apply. Experience has
Cite as: 593 U. S. ____ (2021) 71
ALITO, J., concurring in judgment
shown otherwise.
D
Subsequent developments. Developments since Smith
provide additional reasons for changing course. The Smith
majority thought that adherence to Sherbert would invite
“anarchy,” 494 U. S., at 888, but experience has shown that
this fear was not well founded. Both RFRA and RLUIPA
impose essentially the same requirements as Sherbert, and
we have observed that the courts are well “up to the task”
of applying that test. Gonzales v. O Centro Espírita Benef-
icente União do Vegetal, 546 U. S. 418, 436 (2006). See also
Cutter v. Wilkinson, 544 U. S. 709, 722 (2005) (noting “no
cause to believe” the test could not be “applied in an appro-
priately balanced way”).
Another significant development is the subsequent pro-
fusion of studies on the original meaning of the Free Exer-
cise Clause. When Smith was decided, the available schol-
arship was thin, and the Court received no briefing on the
subject. Since then, scholars have explored the subject in
great depth.81
* * *
Multiple factors strongly favor overruling Smith. Are
there countervailing factors?
E
None is apparent. Reliance is often the strongest factor
favoring the retention of a challenged precedent, but no
strong reliance interests are cited in any of the numerous
——————
81 See, e.g., McConnell, Origins 1409; McConnell, Free Exercise Revi-
sionism 1109; McConnell, Freedom From Persecution 819; Hamburger,
Religious Exemption 915; Hamburger, More Is Less 835; Laycock, 7 J.
Contemp. Legal Issues 313; Bradley, 20 Hofstra L. Rev. 245; Campbell,
A New Approach 973; Kmiec, 59 UMKC L. Rev. 591; Lash, 88 Nw. U. L.
Rev. 1106; Lombardi, Free Exercise 369; Muñoz, Original Meaning 1083;
Nestor 971; Nussbaum, Liberty of Conscience, at 120–130; Walsh 1.
72 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
briefs urging us to preserve Smith. Indeed, the term is
rarely even mentioned.
All that the City has to say on the subject is that overrul-
ing Smith would cause “substantial regulatory . . . disrup-
tion” by displacing RFRA, RLUIPA, and related state laws,
Brief for City Respondents 51 (internal quotation marks
omitted), but this is a baffling argument. How would over-
ruling Smith disrupt the operation of laws that were en-
acted to abrogate Smith?
One of the City’s amici, the New York State Bar Associa-
tion, offers a different reliance argument. It claims that
some individuals, relying on Smith, have moved to juris-
dictions with anti-discrimination laws that do not permit
religious exemptions. Brief for New York State Bar Associ-
ation as Amicus Curiae 11. The bar association does not
cite any actual examples of individuals who fall into this
category, and there is reason to doubt that many actually
exist.
For the hypothesized course of conduct to make sense, all
of the following conditions would have to be met. First, it
would be necessary for the individuals in question to believe
that a religiously motivated party in the jurisdiction they
left or avoided might engage in conduct that harmed them.
Second, this conduct would have to be conduct not already
protected by Smith in that it (a) did not violate a generally
applicable state law, (b) that law did not allow individual
exemptions, and (c) there was insufficient proof of religious
targeting. Third, the feared conduct would have to fall out-
side the scope of RLUIPA. Fourth, the conduct, although
not protected by Smith, would have to be otherwise permit-
ted by local law, for example, through a state version of
RFRA. Fifth, this fear of harm at the hands of a religiously
motivated actor would have to be a but-for cause of the de-
cision to move. Perhaps there are individuals who fall into
the category that the bar association hypothesizes, but we
should not allow violations of the Free Exercise Clause in
perpetuity based on such speculation.
Cite as: 593 U. S. ____ (2021) 73
ALITO, J., concurring in judgment
Indeed, even if more substantial reliance could be shown,
Smith’s dubious standing would weigh against giving this
factor too much weight. Smith has been embattled since
the day it was decided, and calls for its reexamination have
intensified in recent years. See Masterpiece Cakeshop, 584
U. S., at ___ (GORSUCH, J., joined by ALITO, J., concurring)
(slip op., at 1); Kennedy, 586 U. S., at ___–___ (ALITO, J.,
joined by THOMAS, GORSUCH, and KAVANAUGH, JJ., concur-
ring in denial of certiorari) (slip op., at 5–6); City of Boerne
521 U. S., at 566 (BREYER, J., dissenting) (“[T]he Court
should direct the parties to brief the question whether
[Smith] was correctly decided”); id., at 565 (O’Connor, J.,
joined by BREYER, J., dissenting) (“[I]t is essential for the
Court to reconsider its holding in Smith”); Lukumi, 508
U. S., at 559 (Souter, J., concurring in part and concurring
in judgment) (“[I]n a case presenting the issue, the Court
should reexamine the rule Smith declared”). Thus, parties
have long been on notice that the decision might soon be
reconsidered. See Janus, 585 U. S., at ___ (slip op., at 45).
* * *
Smith was wrongly decided. As long as it remains on the
books, it threatens a fundamental freedom. And while prec-
edent should not lightly be cast aside, the Court’s error in
Smith should now be corrected.
VI
A
If Smith is overruled, what legal standard should be ap-
plied in this case? The answer that comes most readily to
mind is the standard that Smith replaced: A law that im-
poses a substantial burden on religious exercise can be sus-
tained only if it is narrowly tailored to serve a compelling
government interest.
Whether this test should be rephrased or supplemented
with specific rules is a question that need not be resolved
74 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
here because Philadelphia’s ouster of CSS from foster care
work simply does not further any interest that can properly
be protected in this case. As noted, CSS’s policy has not
hindered any same-sex couples from becoming foster par-
ents, and there is no threat that it will do so in the future.
CSS’s policy has only one effect: It expresses the idea that
same-sex couples should not be foster parents because only
a man and a woman should marry. Many people today find
this idea not only objectionable but hurtful. Nevertheless,
protecting against this form of harm is not an interest that
can justify the abridgment of First Amendment rights.
We have covered this ground repeatedly in free speech
cases. In an open, pluralistic, self-governing society, the ex-
pression of an idea cannot be suppressed simply because
some find it offensive, insulting, or even wounding. See
Matal v. Tam, 582 U. S. ___, ___–___ (2017) (slip op., at 1–
2) (“Speech may not be banned on the ground that it ex-
presses ideas that offend”); Hurley, 515 U. S., at 579 (“[T]he
law . . . is not free to interfere with speech for no better rea-
son than promoting an approved message or discouraging a
disfavored one, however enlightened either purpose may
strike the government”); Johnson, 491 U. S., at 414 (“If
there is a bedrock principle underlying the First Amend-
ment, it is that the government may not prohibit the ex-
pression of an idea simply because society finds the idea it-
self offensive or disagreeable”); FCC v. Pacifica Foundation,
438 U. S. 726, 745 (1978) (opinion of Stevens, J.) (“[T]he fact
that society may find speech offensive is not a sufficient rea-
son for suppressing it. Indeed, if it is the speaker’s opinion
that gives offense, that consequence is a reason for accord-
ing it constitutional protection”); Street v. New York, 394
U. S. 576, 592 (1969) (“[T]he public expression of ideas may
not be prohibited merely because the ideas are themselves
offensive to some of their hearers”); Cf. Coates v. Cincinnati,
402 U. S. 611, 615 (1971) (“Our decisions establish that
mere public intolerance or animosity cannot be the basis for
Cite as: 593 U. S. ____ (2021) 75
ALITO, J., concurring in judgment
abridgment of . . . constitutional freedoms”).
The same fundamental principle applies to religious prac-
tices that give offense. The preservation of religious free-
dom depends on that principle. Many core religious beliefs
are perceived as hateful by members of other religions or
nonbelievers. Proclaiming that there is only one God is of-
fensive to polytheists, and saying that there are many gods
is anathema to Jews, Christians, and Muslims. Declaring
that Jesus was the Son of God is offensive to Judaism and
Islam, and stating that Jesus was not the Son of God is in-
sulting to Christian belief. Expressing a belief in God is
nonsense to atheists, but denying the existence of God or
proclaiming that religion has been a plague is infuriating to
those for whom religion is all-important.
Suppressing speech—or religious practice—simply be-
cause it expresses an idea that some find hurtful is a zero-
sum game. While CSS’s ideas about marriage are likely to
be objectionable to same-sex couples, lumping those who
hold traditional beliefs about marriage together with racial
bigots is insulting to those who retain such beliefs. In Ober-
gefell v. Hodges, 576 U. S. 644 (2015), the majority made a
commitment. It refused to equate traditional beliefs about
marriage, which it termed “decent and honorable,” id., at
672, with racism, which is neither. And it promised that
“religions, and those who adhere to religious doctrines, may
continue to advocate with utmost, sincere conviction that,
by divine precepts, same-sex marriage should not be con-
doned.” Id., at 679. An open society can keep that promise
while still respecting the “dignity,” “worth,” and fundamen-
tal equality of all members of the community. Masterpiece
Cakeshop, 584 U. S., at ___ (slip op., at 9).
B
One final argument must be addressed. Philadelphia and
many of its amici contend that preservation of the City’s
policy is not dependent on Smith. They argue that the City
76 FULTON v. PHILADELPHIA
ALITO, J., concurring in judgment
is simply asserting the right to control its own internal op-
erations, and they analogize CSS to either a City employee
or a contractor hired to perform an exclusively governmen-
tal function.
This argument mischaracterizes the relationship be-
tween CSS and the City. The members of CSS’s staff are
not City employees; the power asserted by the City goes far
beyond a refusal to enter into a contract; and the function
that CSS and other private foster care agencies have been
performing for decades has not historically been an exclu-
sively governmental function. See, e.g., Leshko v. Servis,
423 F. 3d 337, 343–344 (CA3 2005) (“No aspect of providing
care to foster children in Pennsylvania has ever been the
exclusive province of the government”); Rayburn v. Hogue,
241 F. 3d 1341, 1347 (CA11 2001) (acknowledging that fos-
ter care is not traditionally an exclusive state prerogative);
Milburn v. Anne Arundel Cty. Dept. of Social Servs., 871 F.
2d 474, 479 (CA4 1989) (same); Malachowski v. Keene, 787
F. 2d 704, 711 (CA1 1986) (same); see also Ismail v. County
of Orange, 693 Fed. Appx. 507, 512 (CA9 2017) (concluding
that foster parents were not state actors). On the contrary,
States and cities were latecomers to this field, and even to-
day, they typically leave most of the work to private agen-
cies.
The power that the City asserts is essentially the power
to deny CSS a license to continue to perform work that it
has carried out for decades and that religious groups have
performed since time immemorial. Therefore, the cases
that provide the basis for the City’s argument—such as
Garcetti v. Ceballos, 547 U. S. 410 (2006), and Board of
Comm’rs, Wabounsee Cty. v. Umbehr, 518 U. S. 668(1996)—are far afield. A government cannot “reduce a
group’s First Amendment rights by simply imposing a li-
censing requirement.” National Institute of Family and
Life Advocates v. Becerra, 585 U. S. ___, ___ (2018) (slip op.,
at 14).
Cite as: 593 U. S. ____ (2021) 77
ALITO, J., concurring in judgment
* * *
For all these reasons, I would overrule Smith and reverse
the decision below. Philadelphia’s exclusion of CSS from
foster care work violates the Free Exercise Clause, and CSS
is therefore entitled to an injunction barring Philadelphia
from taking such action.
After receiving more than 2,500 pages of briefing and af-
ter more than a half-year of post-argument cogitation, the
Court has emitted a wisp of a decision that leaves religious
liberty in a confused and vulnerable state. Those who count
on this Court to stand up for the First Amendment have
every right to be disappointed—as am I.
Cite as: 593 U. S. ____ (2021) 1
GORSUCH, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–123
_________________
SHARONELL FULTON, ET AL., PETITIONERS v.
CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 17, 2021]
JUSTICE GORSUCH, with whom JUSTICE THOMAS and
JUSTICE ALITO join, concurring in the judgment.
The Court granted certiorari to decide whether to over-
rule Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990). As JUSTICE ALITO’s opinion
demonstrates, Smith failed to respect this Court’s prece-
dents, was mistaken as a matter of the Constitution’s orig-
inal public meaning, and has proven unworkable in prac-
tice. A majority of our colleagues, however, seek to sidestep
the question. They agree that the City of Philadelphia’s
treatment of Catholic Social Services (CSS) violates the
Free Exercise Clause. But, they say, there’s no “need” or
“reason” to address the error of Smith today. Ante, at 5
(majority opinion); ante, at 2 (BARRETT, J., concurring).
On the surface it may seem a nice move, but dig an inch
deep and problems emerge. Smith exempts “neutral” and
“generally applicable” laws from First Amendment scru-
tiny. 494 U. S., at 878–881. The City argues that its chal-
lenged rules qualify for that exemption because they re-
quire all foster-care agencies—religious and non-religious
alike—to recruit and certify same-sex couples interested in
serving as foster parents. For its part, the majority as-
sumes (without deciding) that Philadelphia’s rule is indeed
“neutral” toward religion. Ante, at 5. So to avoid Smith’s
exemption and subject the City’s policy to First Amendment
2 FULTON v. PHILADELPHIA
GORSUCH, J., concurring in judgment
scrutiny, the majority must carry the burden of showing
that the policy isn’t “generally applicable.”
*
That path turns out to be a long and lonely one. The dis-
trict court held that the City’s public accommodations law
(its Fair Practices Ordinance or FPO) is both generally ap-
plicable and applicable to CSS. At least initially, the ma-
jority chooses to bypass the district court’s major premise—
that the FPO qualifies as “generally applicable” under
Smith. It’s a curious choice given that the FPO applies only
to certain defined entities that qualify as public accommo-
dations while the “generally applicable law” in Smith was
“an across-the-board criminal prohibition” enforceable
against anyone. 494 U. S., at 884. But if the goal is to turn
a big dispute of constitutional law into a small one, the ma-
jority’s choice to focus its attack on the district court’s minor
premise—that the FPO applies to CSS as a matter of mu-
nicipal law—begins to make some sense. Still, it isn’t ex-
actly an obvious path. The Third Circuit did not address
the district court’s interpretation of the FPO. And not one
of the over 80 briefs before us contests it. To get to where
it wishes to go, then, the majority must go it alone. So much
for the adversarial process and being “a court of review, not
of first view.” Brownback v. King, 592 U. S. ___, ___, n. 4
(2021) (slip op., at 5, n. 4) (internal quotation marks omit-
ted).
Trailblazing through the Philadelphia city code turns out
to be no walk in the park either. As the district court ob-
served, the City’s FPO defines “public accommodations” ex-
pansively to include “[a]ny provider” that “solicits or accepts
patronage” of “the public or whose . . . services [or] facili-
ties” are “made available to the public.” App. to Pet. for
Cert. 77a (alteration omitted; emphasis deleted). And, the
district court held, this definition covers CSS because
(among other things) it “publicly solicits prospective foster
Cite as: 593 U. S. ____ (2021) 3
GORSUCH, J., concurring in judgment
parents” and “provides professional ‘services’ to the public.”
Id., at 78a. All of which would seem to block the majority’s
way. So how does it get around that problem?
It changes the conversation. The majority ignores the
FPO’s expansive definition of “public accommodations.” It
ignores the reason the district court offered for why CSS
falls within that definition. Instead, it asks us to look to a
different public accommodations law—a Commonwealth of
Pennsylvania public accommodations statute. See ante, at
10–11 (discussing Pa. Stat. Ann., Tit. 43, §954(l) (Purdon
Cum. Supp. 2009)). And, the majority promises, CSS fails
to qualify as a public accommodation under the terms of
that law. But why should we ignore the City’s law and look
to the Commonwealth’s? No one knows because the major-
ity doesn’t say.
Even playing along with this statutory shell game doesn’t
solve the problem. The majority highlights the fact that the
state law lists various examples of public accommoda-
tions—including hotels, restaurants, and swimming pools.
Ante, at 11. The majority then argues that foster agencies
fail to qualify as public accommodations because, unlike
these listed entities, foster agencies “involv[e] a customized
and selective assessment.” Ibid. But where does that dis-
tinction come from? Not the text of the state statute, not
state case law, and certainly not from the briefs. The ma-
jority just declares it—a new rule of Pennsylvania common
law handed down by the United States Supreme Court.
The majority’s gloss on state law isn’t just novel, it’s prob-
ably wrong. While the statute lists hotels, restaurants, and
swimming pools as examples of public accommodations, it
also lists over 40 other kinds of institutions—and the stat-
ute emphasizes that these examples are illustrative, not ex-
haustive. See §954(l). Among its illustrations, too, the stat-
ute offers public “colleges and universities” as examples of
public accommodations. Ibid. Often these institutions do
engage in a “customized and selective assessment” of their
4 FULTON v. PHILADELPHIA
GORSUCH, J., concurring in judgment
clients (students) and employees (faculty). And if they can
qualify as public accommodations under the state statute,
it isn’t exactly clear why foster agencies cannot. What does
the majority have to say about this problem? Again, silence.
If anything, the majority’s next move only adds to the
confusion. It denies cooking up any of these arguments on
its own. It says it merely means to “agree with CSS’s posi-
tion . . . that its ‘foster services do not constitute a “public
accommodation” under the City’s Fair Practices Ordi-
nance.’ ” Ante, at 13 (quoting App. to Pet. for Cert. 159a).
But CSS’s cited “position”—which comes from a letter it
sent to the City before litigation even began—includes
nothing like the majority’s convoluted chain of reasoning
involving a separate state statute. Id., at 159a–160a. In-
stead, CSS’s letter contends that the organization’s services
do not qualify as “public accommodations” because they are
“only available to at-risk children who have been removed
by the state and are in need of a loving home.” Ibid. The
majority tells us with assurance that it “agree[s] with” this
position, adding that it would be “incongru[ous]” to “dee[m]
a private religious foster agency a public accommodation.”
Ante, at 12.
What to make of all this? Maybe this part of the majority
opinion should be read only as reaching for something—an-
ything—to support its curious separate-statute move. But
maybe the majority means to reject the district court’s ma-
jor premise after all—suggesting it would be incongruous
for public accommodations laws to qualify as generally ap-
plicable under Smith because they do not apply to everyone.
Or maybe the majority means to invoke a canon of consti-
tutional avoidance: Before concluding that a public accom-
modations law is generally applicable under Smith, courts
must ask themselves whether it would be “incongru[ous]”
to apply that law to religious groups. Maybe all this ambi-
guity is deliberate, maybe not. The only thing certain here
Cite as: 593 U. S. ____ (2021) 5
GORSUCH, J., concurring in judgment
is that the majority’s attempt to cloak itself in CSS’s argu-
ment introduces more questions than answers.
*
Still that’s not the end of it. Even now, the majority’s
circumnavigation of Smith remains only half complete. The
City argues that, in addition to the FPO, another generally
applicable nondiscrimination rule can be found in §15.1 of
its contract with CSS. That provision independently in-
structs that foster service providers “shall not discriminate
or permit discrimination against any individual on the ba-
sis of . . . sexual orientation.” Supp. App. to Brief for City
Respondents 31. This provision, the City contends,
amounts to a second and separate rule of general applica-
bility exempt from First Amendment scrutiny under Smith.
Once more, the majority must find some way around the
problem. Its attempt to do so proceeds in three steps.
First, the majority directs our attention to another provi-
sion of the contract—§3.21. See ante, at 7–9. Entitled “Re-
jection of Referral,” this provision prohibits discrimination
based on sexual orientation, race, religion, or other grounds
“unless an exception is granted” in the government’s “sole
discretion.” Supp. App. to Brief for City Respondents 16–
17. Clearly, the majority says, that provision doesn’t state
a generally applicable rule against discrimination because
it expressly contemplates “exceptions.” Ante, at 8.
But how does that help? As §3.21’s title indicates, the
provision contemplates exceptions only when it comes to
the referral stage of the foster process—where the govern-
ment seeks to place a particular child with an available fos-
ter family. See A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 221 (2012) (“The title and
headings are permissible indicators of meaning” (boldface
deleted)). So, for example, the City has taken race into ac-
count when placing a child who “used racial slurs” to avoid
placing him with parents “of that race.” Tr. of Oral Arg. 61.
6 FULTON v. PHILADELPHIA
GORSUCH, J., concurring in judgment
Meanwhile, our case has nothing to do with the referral—
or placement—stage of the foster process. This case con-
cerns the recruitment and certification stages—where fos-
ter agencies like CSS screen and enroll adults who wish to
serve as foster parents. And in those stages of the foster
process, §15.1 seems to prohibit discrimination absolutely.
That difficulty leads the majority to its second step. It
asks us to ignore §3.21’s title and its limited application to
the referral stage. See ante, at 9. Instead, the majority
suggests, we should reconceive §3.21 as authorizing excep-
tions to the City’s nondiscrimination rule at every stage of
the foster process. Once we do that, the majority stresses,
§3.21’s reservation of discretion is irreconcilable with
§15.1’s blanket prohibition against discrimination. See
ante, at 9.
This sets up the majority’s final move—where the real
magic happens. Having conjured a conflict within the con-
tract, the majority devises its own solution. It points to
some state court decisions that, it says, set forth the “rule”
that Pennsylvania courts shouldn’t interpret one provision
in a contract “to annul” another part. Ibid. To avoid nulli-
fying §3.21’s reservation of discretion, the majority insists,
it has no choice but to rewrite §15.1. All so that—voila—
§15.1 now contains its own parallel reservation of discre-
tion. See ante, at 9. As rewritten, the contract contains no
generally applicable rule against discrimination anywhere
in the foster process.
From start to finish, it is a dizzying series of maneuvers.
The majority changes the terms of the parties’ contract,
adopting an uncharitably broad reading (really revision) of
§3.21. It asks us to ignore the usual rule that a more spe-
cific contractual provision can comfortably coexist with a
more general one. And it proceeds to resolve a conflict it
created by rewriting §15.1. Once more, too, no party, ami-
cus, or lower court argued for any of this.
Cite as: 593 U. S. ____ (2021) 7
GORSUCH, J., concurring in judgment
To be sure, the majority again claims otherwise—repre-
senting that it merely adopts the arguments of CSS and the
United States. See ante, at 10. But here, too, the majority’s
representation raises rather than resolves questions. In-
stead of pursuing anything like the majority’s contract ar-
guments, CSS and the United States suggest that §3.21
“alone triggers strict scrutiny,” Reply Brief 5 (emphasis
added), because that provision authorizes the City “to grant
formal exemptions from its policy” of nondiscrimination,
Brief for United States as Amicus Curiae 26 (emphasis
added). On this theory, it’s irrelevant whether §3.21 or
§15.1 reserve discretion to grant exemptions at all stages of
the process or at only one stage. Instead, the City’s power
to grant exemptions from its nondiscrimination policy any-
where “undercuts its asserted interests” and thus “trig-
ger[s] strict scrutiny” for applying the policy everywhere.
Id., at 21. Exceptions for one means strict scrutiny for all.
See, e.g., Tandon v. Newsom, ante, at 1–2 (per curiam). All
of which leaves us to wonder: Is the majority just stretching
to claim some cover for its novel arguments? Or does it ac-
tually mean to adopt the theory it professes to adopt?
*
Given all the maneuvering, it’s hard not to wonder if the
majority is so anxious to say nothing about Smith’s fate that
it is willing to say pretty much anything about municipal
law and the parties’ briefs. One way or another, the major-
ity seems determined to declare there is no “need” or “rea-
son” to revisit Smith today. Ante, at 5 (majority opinion);
ante, at 2 (BARRETT, J., concurring).
But tell that to CSS. Its litigation has already lasted
years—and today’s (ir)resolution promises more of the
same. Had we followed the path JUSTICE ALITO outlines—
holding that the City’s rules cannot avoid strict scrutiny
even if they qualify as neutral and generally applicable—
this case would end today. Instead, the majority’s course
8 FULTON v. PHILADELPHIA
GORSUCH, J., concurring in judgment
guarantees that this litigation is only getting started. As
the final arbiter of state law, the Pennsylvania Supreme
Court can effectively overrule the majority’s reading of the
Commonwealth’s public accommodations law. The City can
revise its FPO to make even plainer still that its law does
encompass foster services. Or with a flick of a pen, munic-
ipal lawyers may rewrite the City’s contract to close the
§3.21 loophole.
Once any of that happens, CSS will find itself back where
it started. The City has made clear that it will never toler-
ate CSS carrying out its foster-care mission in accordance
with its sincerely held religious beliefs. To the City, it
makes no difference that CSS has not denied service to a
single same-sex couple; that dozens of other foster agencies
stand willing to serve same-sex couples; or that CSS is com-
mitted to help any inquiring same-sex couples find those
other agencies. The City has expressed its determination
to put CSS to a choice: Give up your sincerely held religious
beliefs or give up serving foster children and families. If
CSS is unwilling to provide foster-care services to same-sex
couples, the City prefers that CSS provide no foster-care
services at all. This litigation thus promises to slog on for
years to come, consuming time and resources in court that
could be better spent serving children. And throughout it
all, the opacity of the majority’s professed endorsement of
CSS’s arguments ensures the parties will be forced to de-
vote resources to the unenviable task of debating what it
even means.
Nor will CSS bear the costs of the Court’s indecision
alone. Individuals and groups across the country will pay
the price—in dollars, in time, and in continued uncertainty
about their religious liberties. Consider Jack Phillips, the
baker whose religious beliefs prevented him from creating
custom cakes to celebrate same-sex weddings. See Master-
piece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584
U. S. ___ (2018). After being forced to litigate all the way to
Cite as: 593 U. S. ____ (2021) 9
GORSUCH, J., concurring in judgment
the Supreme Court, we ruled for him on narrow grounds
similar to those the majority invokes today. Because cer-
tain government officials responsible for deciding Mr. Phil-
lips’s compliance with a local public accommodations law
uttered statements exhibiting hostility to his religion, the
Court held, those officials failed to act “neutrally” under
Smith. See 584 U. S., at ___–___ (slip op., at 16–18). But
with Smith still on the books, all that victory assured Mr.
Phillips was a new round of litigation—with officials now
presumably more careful about admitting their motives.
See Associated Press, Lakewood Baker Jack Phillips
Sued for Refusing Gender Transition Cake (Mar. 22, 2021),
https : / / denver . cbslocal. com / 2021 / 03 / 22 / jack - phillips -
masterpiece-cakeshop-lakewood-transgender/. A nine-year
odyssey thus barrels on. No doubt, too, those who cannot
afford such endless litigation under Smith’s regime have
been and will continue to be forced to forfeit religious free-
dom that the Constitution protects.
The costs of today’s indecision fall on lower courts too. As
recent cases involving COVID–19 regulations highlight,
judges across the country continue to struggle to under-
stand and apply Smith’s test even thirty years after it was
announced. In the last nine months alone, this Court has
had to intervene at least half a dozen times to clarify how
Smith works. See, e.g., Tandon, ante, at p. 1; Roman Cath-
olic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020)
(per curiam); High Plains Harvest Church v. Polis, 592 U. S
___ (2020). To be sure, this Court began to resolve at least
some of the confusion surrounding Smith’s application in
Tandon. But Tandon treated the symptoms, not the under-
lying ailment. We owe it to the parties, to religious believ-
ers, and to our colleagues on the lower courts to cure the
problem this Court created.
It’s not as if we don’t know the right answer. Smith has
been criticized since the day it was decided. No fewer than
10 FULTON v. PHILADELPHIA
GORSUCH, J., concurring in judgment
ten Justices—including six sitting Justices—have ques-
tioned its fidelity to the Constitution. See ante, at 9–10
(ALITO, J., concurring in judgment); ante, at 1 (BARRETT, J.,
concurring). The Court granted certiorari in this case to
resolve its fate. The parties and amici responded with over
80 thoughtful briefs addressing every angle of the problem.
JUSTICE ALITO has offered a comprehensive opinion ex-
plaining why Smith should be overruled. And not a single
Justice has lifted a pen to defend the decision. So what are
we waiting for?
We hardly need to “wrestle” today with every conceivable
question that might follow from recognizing Smith was
wrong. See ante, at 2 (BARRETT, J., concurring). To be sure,
any time this Court turns from misguided precedent back
toward the Constitution’s original public meaning, chal-
lenging questions may arise across a large field of cases and
controversies. But that’s no excuse for refusing to apply the
original public meaning in the dispute actually before us.
Rather than adhere to Smith until we settle on some “grand
unified theory” of the Free Exercise Clause for all future
cases until the end of time, see American Legion v. Ameri-
can Humanist Assn., 588 U. S. ___, ___ (2019) (plurality
opinion) (slip op., at 24), the Court should overrule it now,
set us back on the correct course, and address each case as
it comes.
What possible benefit does the majority see in its studi-
ous indecision about Smith when the costs are so many?
The particular appeal before us arises at the intersection of
public accommodations laws and the First Amendment; it
involves same-sex couples and the Catholic Church. Per-
haps our colleagues believe today’s circuitous path will at
least steer the Court around the controversial subject mat-
ter and avoid “picking a side.” But refusing to give CSS the
benefit of what we know to be the correct interpretation of
the Constitution is picking a side. Smith committed a con-
stitutional error. Only we can fix it. Dodging the question
Cite as: 593 U. S. ____ (2021) 11
GORSUCH, J., concurring in judgment
today guarantees it will recur tomorrow. These cases will
keep coming until the Court musters the fortitude to supply
an answer. Respectfully, it should have done so today.