Jurisprudence

The Supreme Court Moves the Shadow Docket Out Into the Light

The Supreme Court building at sunset.
Samuel Corum/Getty Images

On a recent episode of Amicus, Dahlia Lithwick and Erwin Chemerinsky, the dean of Berkeley Law School, discussed the sneaky significance of the Supreme Court’s unanimous decision in the major religious freedom case Fulton v. City of Philadelphia. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: I think probably in the umbrella of things John Roberts has pulled off more deftly than any of us expected, we have to talk about Fulton. Fulton is as savvy a piece of work as I’ve ever seen from the chief justice. This is a much-anticipated case, Fulton v. City of Philadelphia. We’ve talked about it a lot on this show, but it seems to me that getting the court to 9–0 on a case that pits these very, very crucial civil liberties versus religious freedom values is a master stroke. I wonder if you could, first and foremost, set the table of what the claim was, and then we can talk about the ruling.

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Erwin Chemerinsky: Philadelphia contracts with social service agencies to do inspections and placements with regard to foster care. Philadelphia says in order for a social service agency to contract, it has to agree to not discriminate on the basis of race, sex, religion, sexual orientation. Catholic Social Services brought a challenge to this and said because of its religious beliefs, it wouldn’t attest that it would not discriminate, and in fact, it could not place children with same-sex couples. The lower court, the district court in the United States Court of Appeals to the 3rd Circuit, ruled in favor of Philadelphia and against Catholic Social Services.

For me, the template for what the ruling is is just a very, very fact specific answer. It looks like Masterpiece Cakeshop. It looks like we’re not going to get to any of the big First Amendment issues. We’re not going to get really into the weeds at all beyond saying essentially what the case said in Masterpiece Cakeshop, which is LGBTQ interests matter, so do religious liberty interests. We don’t so much like the way the city handled that. So this is not in any way a sort of epic ruling on religious liberty. It is not an epic ruling on civil rights. It’s an extremely narrow decision that goes to, in some sense, one right only, correct?

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I don’t think so. Like Masterpiece Cakeshop, ultimately those who want to discriminate on the basis of religion prevail; the anti-discrimination provision loses. But in terms of what Roberts says, Chief Justice John Roberts focuses on a 1990 Supreme Court precedent, Employment Division v. Smith, which is that generally religions don’t get exceptions from laws. So long as the law is neutral, not motivated by desire to interfere with religion, and so long as there’s general applicability, religion doesn’t get an exception. As you know, that case involved whether Native Americans could have an exception to an Oregon law that prohibited consumption of peyote.

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What Roberts says on Thursday is that under the Philadelphia law, there was discretion to give exceptions. And he says because there’s discretion to give exceptions, this doesn’t meet the requirements of the law of general applicability. Therefore, because there’s the possibility of discrimination on the grounds of religion, it has to be necessary to achieve a compelling interest, strict scrutiny, and it fails that.

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So I think this is a bit less narrow than you described, because I think what the court is saying is that any law that has the possibility of exceptions is going to have to be amenable to a challenge based on free exercise of religion and is going to have to meet strict scrutiny. And I don’t think the Supreme Court ever said that before.

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Well, in some sense, they said it in the COVID cases, right? I mean, this feels as though this is laying out in black and white what happened on the shadow docket during the pandemic: If there’s an exception for anything, now there’s an exception for religion.

That is exactly the right analogy. I don’t think that’s minor or narrow. What it’s saying is that religion has a most-favored-nation status. So in the COVID cases, they said, because a bike shop is open, religion has to be treated the same way. And here the court’s taking that a step further and saying, “If the law even has the possibility of exceptions granted, it doesn’t meet the standard for a law of general applicability.” And what laws don’t have the possibility of exceptions? What I thought was striking here is it’s not that the court said that Philadelphia is giving exceptions to others but not giving exceptions to the Catholic church. The court’s saying the very possibility of exceptions is what makes this religious discrimination. And that to me is a very troubling holding.

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I was really struck by the ways in which it’s an attempt to map this onto that most-favored-nation status analysis from the COVID cases. It’s an attempt to say, “If there’s an exemption, then there has to be an exemption.” There’s no exemption; there’s discretion. That’s a difference, but now it’s a difference that has disappeared.

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That’s exactly right. It’s one thing to say that any exemption that’s given to a law has to be given to religion, even if religion is not really the same as the secular entity that gets the exception. But now the court’s saying, “If there’s discretion, that’s enough by itself, regardless how it’s exercised to trigger strict scrutiny.” And as I said, what’s the law that doesn’t have some discretion?

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So when I read the opinion, I read it as much more troubling than you did, in terms of expanding the protections of free excess religion—ultimately, the ability to discriminate on grounds of religion against gays, and lesbians, and others.

I a little bit succumb to the Masterpiece Cakeshop two-step here, Erwin, which is expecting a much more serious outcome and possibly expecting that Employment Division goes away. That didn’t happen. In a strange way, what you’re saying is that the court just did something that it had already done on the shadow docket. It’s now done it very explicitly, and it’s done it without announcing that it’s doing it, which is the thing that you are, I think, troubled by and that I may have elided in my first question.

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I agree with that characterization. To start with, I think there was real concern that the court was going to overrule Employment Division v. Smith, which would then say that any time a law burdens religion, the law has to be justified as necessary to achieve a compelling purpose to meet strict scrutiny. And there was a cert denial a couple of years ago, a case called Kennedy v. Bremerton School District, where four justices indicated that they were willing to overrule Employment Division v. Smith. And on Thursday, Justice Alito wrote a concurrence joined by Justices Thomas and Gorsuch. It’s 77 pages long. It read to me like it may have initially been drafted as a majority opinion, and it made clear that it wanted to overrule Employment Division v. Smith.

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Justice Barrett wrote an opinion that was concurring that was joined by Justices Kavanaugh and Breyer, though Breyer didn’t join a key part of it. It clearly indicated discomfort with Employment Division v. Smith but said there’d be a lot of hard questions in overruling it. I wonder if there’s then five justices down the road, to overrule Employment Division v. Smith.

In fact, I was wondering on Thursday morning, why was it that Justices Sotomayor, Kagan, and Breyer went along with the majority opinion? It’s the majority opinion that I find very troubling. It may be that they were much happier for the reasons you describe, with what seemed a narrow ruling than the alternative, overruling Employment Division v. Smith. And just so that everyone’s clear what this means: If Employment Division v. Smith is overruled, then any law that burdens religion is going to have to meet strict scrutiny. So any law that prohibits discrimination can be challenged by those who want to discriminate on account of their religious beliefs.

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Or maybe another way to put this is there’s always a tension between liberty and equality. Any law that prohibits discrimination limits the freedom to discriminate. Our society, for decades, has made the choice that stopping discrimination is more important than the freedom to discriminate. What’s troubling about the case Thursday is I think they’re saying discrimination is fine, especially against gays and lesbians, if it’s in the name of religion.

And it’s so important what you’re saying, Erwin, because I want to agree wholeheartedly. When I read it, I thought to myself, I understand why Justices Kagan and Breyer very persistently sign off on these troubling religious liberty cases, on these troubling First Amendment cases. I think there’s this question of it could have been so much worse. Let’s do this thing of centering how narrow this is. And I agreed with you. I was quite surprised actually, that Justice Sotomayor seemed to be willing to jump in that pool too. And I also agree, by the way, that if I were looking down the barrel of Sam Alito’s 77-page concurrence and thought that was going to be the majority opinion, I might have signed on to Justice Roberts’ far narrower opinion.

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But I do want to say one of the things that troubled me, even with my slightly less alarmist read of the John Roberts majority opinion, is the degree to which it absolutely and completely decentered the dignitary harms of LGBTQ couples. At least in Masterpiece Cakeshop, there was real, I almost want to say, anguish on Justice Kennedy’s part. That he understood there were real dignitary harms to gay couples seeking to have their marriage celebrated the way they wanted and being refused service. That all but disappears. And it does worry me, in terms of the ever-disappearing, third-party harms doctrine, the ever disappearing contraction of who is being hurt and who we see, which is Catholic Social Services, and who we don’t see at all, which is these foster parents.

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And there’s really interesting language where the chief justice says the whole reason CSS objects to certifying these couples isn’t even because they’re LGBTQ couples. It’s just because they’re single sex and they can’t support that. It writes the entirety of the LGBTQ claims out of the opinion.

You’re right. And of course, you’ve got to remember who wrote Masterpiece Cakeshop versus who wrote the decision on Thursday. Anthony Kennedy was the author of every Supreme Court opinion in history expanding rights for gays and lesbians. And his opinions did express compassion and the need to stop sexual orientation discrimination. John Roberts has dissented in those cases. John Roberts dissented in Obergefell v. Hodges, the case that protected the right to same-sex marriage. John Roberts has always been on the side of free exercise of religion when there’s a tension, but there’s also a real line-drawing issue.

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If somebody can discriminate against gays and lesbians on account of religion, why can’t they discriminate against Blacks on account of religion? Why can’t they discriminate against women on account of religion? Once the court has opened this door, they really then said, “We favor religious liberty over stopping discrimination against gays, lesbians, or any other group.”

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And just to button this down, am I right to say that all of this actually happened on the shadow docket, it happened in the COVID cases? We saw it happen in late-night orders. This most-favored-nation status, which I think effectively ends Employment Division, whether or not you overrule it, that’s happened. In a sense, this is less than what we saw happening on the shadow docket.

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And I wonder if you want to talk for a minute about what it means that the court has one track in which it’s having these conversations openly, another track in which it’s handing down orders with perfunctory thinking on these issues?

What you’re referring to is especially two cases. One that was the night before Thanksgiving and one in the beginning of April, where the Supreme Court—and they’re both 5-to-4—ruled in favor of injunctions for religious entities or religious observances, saying it violated free access of religion, invalidating restrictions that were imposed, respectively, by the governor of New York and the governor of California. And when you read the opinions in those cases, the shadow docket, because there was no full briefing and oral argument—they came in a request for an injunction. What the court was saying is religion has to be treated not only the same as comparable activities but the same as virtually all activities. In the former case, the justice said, “Well, since New York allows bike shops to open, it’s got to be able to allow religion to open in the same way.” In the latter case, it was a restriction on the number of households that could gather together, and it applied equally to religious worship or secular gatherings like watching a football game. But the court said, “But there’re stores that can open. And since that’s allowed, religion needs to have the same benefit.” And so it really was what you and I were both referring to as this most-favored-nations idea that religion has to be treated as well as the very best in our society are treated with regard to certain benefits. It elevates religion over other secular activities.

I think what the court did on Thursday in the Fulton case goes further than that, because the court wasn’t saying here that Catholic Social Services is being treated differently than other social service agencies. None were allowed to discriminate. Instead, what the court said is since there’s discretion under Philadelphia law, the existence of that discretion is enough basis for a challenge. I think this goes not just one but several steps further than those shadow docket cases.

To hear their entire discussion, including analysis of the Affordable Care Act decision and why Chemerinsky thinks Justice Breyer should retire, listen below, or subscribe to the show on Apple PodcastsOvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.

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