Smith’s Last Stand? Free Exercise and Foster Care Exceptionalism
James G. Dwyer * | 24.4 | Article | Citation: James G. Dwyer, Smith’s Last Stand? Free Exercise and Foster Care Exceptionalism, 24 U. Pa. J. Const. L. 856 (2022).
Fulton v. City of Philadelphia postpones the apparent inevitable—the demise of Employment Division v. Smith—with its deflationary view of the Free Exercise Clause and return to application of heightened judicial scrutiny even to laws neutral as to religion and of general applicability. In Fulton, the Court held unanimously in favor of a Catholic agency the City had expelled from its foster care system because of its refusal to certify same-sex couples, but the majority found a way to reach that outcome without answering calls to overturn Smith. Two Justices, in a concurring opinion authored by Justice Barrett, signaled disapproval of Smith while also expressing uncertainty about what should replace it. Three other Justices, in a concurring opinion authored by Justice Alito, made clear their determination to overturn Smith and begin applying strict scrutiny to any law “that imposes a substantial burden on religious exercise.” They chided the majority for skirting the big question of Smith’s survival by deciding the Philadelphia dispute on the basis of facts the City can readily change (details of its contract with private agencies and of its public accommodation law) and interpretations of state and local law that Pennsylvania courts can readily override (applicability of public accommodation law). Alito’s seventy-seven page concurrence reads like an advance draft of a Fulton II majority opinion.
While free-exercise scholars endeavor to expose or fill the holes in Justice Alito’s ostensibly originalist analysis, or to answer Justices Barrett and Kavanaugh’s uncertainties, this Article offers a path to permanent avoidance of the Smith question in the foster care context, as well as in other child welfare contexts, a path down which Justice Robert’s majority opinion in Fulton took a first step by holding that foster care in Philadelphia is not a public accommodation. In fact, the Article shows this alternative path is the only constitutionally appropriate one, because of the distinctive nature of the state child welfare system relative to other public and private operations where similar conflicts arise—in short, that it is a function the state carries out in a parens patriae rather than police power capacity. The Article thus explains why the path to victory for Catholic Social Services (“CSS”) in Philadelphia, and for religious agencies in similar circumstances elsewhere, should be one lit by rights of children, which the agencies should have standing to assert, rather than any rights of their own. Courts should dismiss religious foster-care agencies’ First Amendment claims as simply inapposite, a category error, because the state is not constrained by First Amendment rights of third parties when acting in the fiduciary capacity that parens patriae authority entails. It should also recognize, however, that children have Fourth and Fourteenth Amendment rights against the government’s seizing them and then treating them as distributable goods whose fate is influenced by solicitude for the sentiments and equality claims of aspiring foster parents.
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* Arthur B. Hanson Professor of Law, William & Mary School of Law. This Article greatly benefited from input by Elizabeth Bartholet, Evan Criddle, Neal Devins, and Timothy Zick.