Andrew Lavender


In Fulton v. City of Philadelphia, the Supreme Court, for the second time in three years, considered a case involving the conflict between First Amendment religious, speech, and associational freedoms and the civil rights of the LGBTQ community. And, for the second time, the Court arrived at an apparent compromise, issuing a narrow, factual ruling in favor of the party seeking an exception from antidiscrimination law while avoiding any firm precedent that might create a broader exception.

In addition to this substantive dodge, the Court also “sidestep[ped] the question on which certiorari had been granted: whether to overrule Employment Division, Department of Human Resources of Oregon v. Smith. In Smith, the Court ruled, in upholding the denial of unemployment benefits to the respondents on the basis of their religiously motivated peyote usage, that a “generally applicable and otherwise valid” law does not offend the Free Exercise Clause of the First Amendment when the law incidentally burdens religious activity.

Despite granting certiorari, months of briefing, and oral argument on the question of whether to overturn Smith, the Court ultimately avoided the question altogether. Perhaps the most intriguing aspect of Fulton was Justice Barrett’s concurrence, joined by Justice Kavanaugh in full and Justice Breyer except for a single paragraph. In the opinion, the newest Justice agreed that Smith’s neutrality rule was problematic, but mused that proposed alternatives did not satisfactorily capture the nuance of free exercise claims involving neutral and generally applicable laws. Justice Barrett also noted questions that might arise if Smith were overturned before concluding that the case did not require resolving those questions because the discretionary exception provision rendered the city’s actions non-neutral. This Article will argue from a legalistic standpoint that overturning Smith does not require addressing any of the questions that Justice Barrett posed. Some of the issues raised would not be affected one way or the other, while others may even be brought into greater clarity if Smith—which is incongruous with much other First Amendment law—were cast aside. In fact, almost all the questions would be answered by other case law that would no longer need to be read for consistency with Smith.