(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 contracts with the agencies to place children with foster families. One of 

the responsibilities of the agencies is certifying prospective foster families 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 endorsement of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples. 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 investigation followed, and the City ultimately informed CSS that unless it

agreed to certify same-sex couples the City would no longer refer children 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

married 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 contractual non-discrimination requirement and the Fair Practices Ordinance 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 forbidding 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 parents 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 Amendment. 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 parents in violation of its religious beliefs. Smith held that laws incidentally 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. Hialeah, 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 exemptions 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 foster care contract is not generally applicable. Section 3.21 of the contract 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 private contractors, but the result here is the same under any level of 
 

 

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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 certify 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 sexual orientation discrimination, the contract as a whole contains no generally applicable non-discrimination requirement. Pp. 7–10. 

(2) Philadelphia’s Fair Practices Ordinance, which as relevant forbids 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, advantages or accommodations are extended, offered, sold, or otherwise 

made available to the public.” Phila. Code §9–1102(1)(w). Certification 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 restaurant, or riding a bus. The District Court’s contrary conclusion did not 

take into account the uniquely selective nature of foster care certification. 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 interests 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 contract 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. 
 

 

 

 

 

_________________ 

_________________ 

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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, Washington, 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 Philadelphia. The City stopped referring children to CSS upon

discovering that the agency would not certify same-sex couples 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 Philadelphia 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 orphaned and destitute youth. T. Hacsi, Second Home: Orphan 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 
 

 

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Opinion of the Court 

Children’s Bureau to place children in foster homes. Petitioner CSS continues that mission today.

The Philadelphia foster care system depends on cooperation 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 private 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 certify foster families to state-licensed foster agencies like 

CSS. 55 Pa. Code §3700.61 (2020). Before certifying a family, 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 provisionally 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 certified 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 understands the certification of prospective foster families to be 

an endorsement of their relationships, it will not certify unmarried 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 placing 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 parents in same-sex marriages. The City Council called for an 

investigation, saying that the City had “laws in place to protect 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 Human 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 Commission. The Support Center for Child Advocates and Philadelphia Family Pride intervened as defendants. As relevant here, CSS alleged that the referral freeze violated the

Free Exercise and Free Speech Clauses of the First Amendment. CSS sought a temporary restraining order and preliminary 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 concluded that the contractual non-discrimination requirement and the Fair Practices Ordinance were neutral and 

generally applicable under Employment Division, Department of Human Resources of Oregon v. Smith, 494 U. S. 872 

(1990), and that the free exercise claim was therefore unlikely 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 certifications as part of a government program. Id., at 

695–700. 

The Court of Appeals for the Third Circuit affirmed. Because the contract between the parties had expired, the 

court focused on whether the City could insist on the inclusion 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 proposed contractual terms were a neutral and generally applicable 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 challenged the Third Circuit’s determination that the City’s actions 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, applicable to the States under the Fourteenth Amendment, provides that “Congress shall make no law . . . prohibiting the

free exercise” of religion. As an initial matter, it is plain 
 

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Opinion of the Court 

that the City’s actions have burdened CSS’s religious exercise 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 comprehensible to others in order to merit First Amendment 

protection.” Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707, 714 (1981). Our task is to decide 

whether the burden the City has placed on the religious exercise of CSS is constitutionally permissible. 

Smith held that laws incidentally burdening religion are 

ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable. 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 decision 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 generally 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 government to consider the particular reasons for a person’s 
 

6 FULTON v. PHILADELPHIA 

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conduct by providing “‘a mechanism for individualized exemptions.’” 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 justified 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 application. 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 individual 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 religious conduct while permitting secular conduct that undermines 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 
 

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Opinion of the Court 

not regulate hunters’ disposal of their kills or improper garbage 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 ordinances were not generally applicable. Id., at 545–546. 

B 

The City initially argued that CSS’s practice violated section 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 specifies in pertinent part: 

“Rejection of Referral. Provider shall not reject a 

child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based 

upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’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 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. 

The City has made clear that the Commissioner “has no intention 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 conclusion on several grounds. They first argue that governments 

should enjoy greater leeway under the Free Exercise Clause 
 

 

 

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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 freedom 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 government should have a freer hand when dealing with contractors like CSS. 

These considerations cannot save the City here. As Philadelphia 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 discriminate against religion when acting in its managerial 

role. And Smith itself drew support for the neutral and generally applicable standard from cases involving internal 

government affairs. See 494 U. S., at 883–885, and n. 2 (citing 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 apply 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 discretionary exceptions in section 3.21 renders the contractual nondiscrimination 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 samesex couples after all. Contrast App. to Pet. for Cert. 167a–

168a with Brief for City Respondents 35–36. Instead, the 
 

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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, forbidding 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 unavailing. See A. Scalia & B. Garner, Reading Law: The Interpretation 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 future contracts, App. to Pet. for Cert. 170a, confirming our 

understanding of the text of the provision.

The City and intervenor-respondents add that, notwithstanding the system of exceptions in section 3.21, a separate provision in the contract independently prohibits discrimination 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 exceptions. See Supp. App. to Brief for City Respondents 31. 

But state law makes clear that “one part of a contract cannot 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 govern the prohibition in section 15.1, lest the City’s reservation 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. 
 

 

 

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Finally, the City and intervenor-respondents contend

that the availability of exceptions under section 3.21 is irrelevant 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 arguments 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 alterations in original); see also Brief for Petitioners 26–27 (section 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 violation of the Fair Practices Ordinance. That ordinance forbids “deny[ing] or interfer[ing] with the public accommodations opportunities of an individual or otherwise 

discriminat[ing] based on his or her race, ethnicity, color, 

sex, sexual orientation, . . . disability, marital status, familial status,” or several other protected categories. Phila. 

Code §9–1106(1) (2016). The City contends that foster care 
 

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agencies are public accommodations and therefore forbidden 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 Petitioners 13. In any event, CSS adds, the ordinance cannot 

qualify as generally applicable because the City allows exceptions 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 certifications. 

The ordinance defines a public accommodation in relevant part as “[a]ny place, provider or public conveyance, 

whether licensed or not, which solicits or accepts the patronage or trade of the public or whose goods, services, facilities, privileges, advantages or accommodations are extended, 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, obtainable.” 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 hotels, restaurants, drug stores, swimming pools, barbershops, 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-
 

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Opinion of the Court 

eral public to avail themselves of that benefit if they so desire.” 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 selective 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 background checks and a medical exam. Foster agencies are required 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 relationships, 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 contrary determination that CSS qualifies as a public accommodation 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 
 

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Opinion of the Court 

process, which must inform the applicability of the ordinance. We agree with CSS’s position, which it has maintained 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 precedents. Lukumi, 508 U. S., at 546. Because the City’s actions 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 ensuring 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 precise 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 Wisconsin 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 particular religious claimants.” O Centro, 546 U. S., at 431. The 

question, then, 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. 

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 certify 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 couples 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 interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under

the contract undermines the City’s contention that its nondiscrimination 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 compelling 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 violate 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, scholars, and Justices of this Court have made serious arguments 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 founding 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 Amendment freedoms—offers nothing more than protection from

discrimination. 

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever

a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical 
 

2 FULTON v. PHILADELPHIA 

BARRETT, J., concurring 

strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and

other First Amendment rights—like speech and assembly—has been much more nuanced. There would be a number 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 differently than individuals? Cf. Hosanna-Tabor Evangelical Lutheran 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 interest is “‘compelling’”), with Gillette v. United States, 401 

U. S. 437, 462 (1971) (assessing whether government’s interest 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 heightened scrutiny because exemptions lay in discretion of government official). As the Court’s opinion today explains, the 

government contract at issue provides for individualized exemptions 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. 
ALITO, J., concurring

_________________ 

_________________ 

Cite as: 593 U. S. ____ (2021) 1 

ALITO, 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 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 governing 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 40 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 reexamination. 

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 sacramental wine. See Pub. L. 66, §3, 41 Stat. 308–309. The Act 

would have been consistent with Smith even though it 
 

 

 

ALITO, J., concurring in judgment

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 Francisco ballot initiative in 2010 proposed just that.5 A categorical ban would be allowed by Smith even though it would 

prohibit an ancient and important Jewish and Muslim practice.6 Or suppose that this Court or some other court enforced a rigid rule prohibiting attorneys from wearing any 

—————— 1Code of Canon Law, Canon §924 (Eng. transl. 1998). 

2See 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. 4See 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”). 5See Initiative Measure To Be Submitted Directly to the Voters: Genital 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 Francisco Cty., Cal., Apr. 6, 2012) (ordering that the proposed initiative be 

removed from the ballot because it was preempted by California law). 6See 4 Encyclopaedia Judaica 730 (2d ed. 2007) (“Jewish circumcision 

originated, according to the biblical account, with Abraham”); The Shengold Jewish Encyclopedia 62 (3d ed. 2003) (“[Circumcision] has become a

basic law among Jews. In times of persecution, Jews risked their lives 
ALITO, J., concurring in judgment

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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 rulemaking 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 traditional 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 Compilation 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 marriage and is required of male converts”); H. Gibb & J. Kramers, Shorter

Encyclopaedia of Islam 254 (1953). 7See Holy Bible, Deuteronomy 10:18, 16:11, 26:12–13; James 1:27. 8See 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)). 
 

 

ALITO, J., concurring in judgment

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 orphanages 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 Awakening.”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 abandoned 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 

—————— 9Ransel, Orphans and Foundlings, in 3 Encyclopedia of European Social History 497, 498 (2001). 10T. 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 Encylopedia 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. 15Brief for Annie E. Casey Foundation et al. as Amici Curiae 4–5. 16See Social Security Act, §521, 49 Stat. 627, 633; Social Security Act 
ALITO, J., concurring in judgment

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ALITO, J., concurring in judgment 

and local governments to take a more active role, and today

many governments administer what is essentially a licensing 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 cities 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 slightest 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 newspaper publicized CSS’s policy, the City barred CSS from continuing its foster care work. Remarkably, the City took this 

—————— 

Amendments of 1961, 75 Stat. 131. 17See United States Conference of Catholic Bishops, Discrimination

Against Catholic Adoption Services (2018), https://www.usccb.org/issuesand-action/religious-liberty/upload/Discrimination-against-Catholicadoption-services.pdf. 
 

ALITO, J., concurring in judgment

6 FULTON v. PHILADELPHIA 

ALITO, J., concurring in judgment 

step even though it threatens the welfare of children awaiting 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 major sources of foster homes. And that’s not all. The City 

—————— 18See 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-thefoster-children-growing-up-inside-detention-centers/2019/12/30/97f65f3aeaa2-11e9-9c6d-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 children 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-phillychild-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-caseload-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-placementcrisis/ (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 AllTime High, Fox 59 (Mar. 7, 2017), https://fox59.com/news/indianaagencies-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-forprofit child services agency was able to place 3 children out of 150 to 200 
ALITO, J., concurring in judgment

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. Exemplary 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 foster parents than to allow CSS to follow its religiously dictated 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 Archdiocese’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 Philadelphia’s ultimatum restricts CSS’s ability to do what it believes the Catholic faith requires.

Philadelphia argues that its stance is allowed by Smith 

because, it claims, a City policy categorically prohibits foster care agencies from discriminating against same-sex couples. Bound by Smith, the lower courts accepted this argument, 320 F. Supp. 3d 661, 682–684 (ED Pa. 2018), 922

F. 3d 140, 156–159 (CA3 2019), and we then granted certiorari, 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-crisisdue-to-shortage-of-foster-homes (reporting on a county in Georgia with

116 children in need of care but only 14 foster families). 19See 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 commissioner’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”). 
 

ALITO, J., concurring in judgment

8 FULTON v. PHILADELPHIA 

ALITO, J., concurring in judgment 

Smith should be revisited.” We should confront that question. 

Regrettably, the Court declines to do so. Instead, it reverses based on what appears to be a superfluous (and 

likely to be short-lived) feature of the City’s standard annual contract with foster care agencies. Smith’s holding

about categorical rules does not apply if a rule permits individualized exemptions, 494 U. S., at 884, and the majority 

seizes on the presence in the City’s standard contract of language 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; 

—————— 21The Court’s decision also depends on its own contested interpretation 

of local and state law. See post, at 2–7 (GORSUCH, J., concurring in judgment). Instead of addressing whether the City’s Fair Practices Ordinance 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 arbiters of their own state law”). Should the Pennsylvania courts interpret 

the FPO differently, they would effectively abrogate the Court’s decision

in this case. 
 

ALITO, J., concurring in judgment

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 prohibiting 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-

—————— 22See 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). 23See, e.g., Cal. Welf. & Inst. Code Ann. §16013(a) (West 2018) (declaring that “all persons engaged in providing care and services to foster children, 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-
 

ALITO, J., concurring in judgment

10 FULTON v. PHILADELPHIA 

ALITO, J., concurring in judgment 

cision will be of no help in other cases involving the exclusion 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 question 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 decades of established precedent, and it has not aged well. Its 

interpretation has been undermined by subsequent scholarship 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 experience 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 discrimination 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 orientation . . . 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”). 
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joining the Court, Justice Souter called for Smith to be reexamined. 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. Kennedy 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 country’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 Religious Land Use and Institutionalized Persons Act of 2000,

114 Stat. 803 (codified at 42 U. S. C. §2000cc et seq.), Congress tried to restore the constitutional rule in place before 

Smith was handed down. Those laws, however, do not apply 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 necessary to recall the substantial body of precedent that it displaced. 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 
 

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12 FULTON v. PHILADELPHIA 

ALITO, J., concurring in judgment 

nearly four decades when Smith was decided. In that earlier 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 unemployment 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 reversed. 

In an opinion authored by Justice Brennan, the Court began 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 corresponds 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 between following the precepts of her religion and forfeiting

benefits, on the one hand, and abandoning one of the precepts 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 ‘compelling state interest.’” Id., at 403, 406. The State argued

that its law was needed to prevent “the filing of fraudulent 
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claims by unscrupulous claimants feigning religious objections,” but Justice Brennan’s opinion found this justification 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 narrowly tailored to serve a compelling interest—was the governing rule for the next 37 years. Applying that test, the 

Court sometimes vindicated free-exercise claims. In Wisconsin 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 acknowledged 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 adversely 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 interpretation of the Free Exercise Clause that was later embraced 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 regulations of general applicability”; “[a] regulation neutral on 

its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion”; insisting that 

Amish children abide by the compulsory attendance requirement 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). 
 

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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. Employment 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 requirement 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 application’” 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 fiscal vitality of the social security system.” In Gillette v. 

United States, 401 U. S. 437, 462 (1971), denying conscientious-objector status to men whose opposition to war was 

limited to one particular conflict was held to be “strictly justified 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 individual seeking an exemption, see Bowen v. Roy, 476 U. S. 

693, 700 (1986); Lyng v. Northwest Indian Cemetery Protective 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) 
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(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 religion (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 Sherbert framework. It argued that it had a compelling interest 

in combating the use of dangerous drugs and that accommodating 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 

—————— 24This 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). 
 

 

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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., dissenting). 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 otherwise 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 argument that South Carolina law did not recognize any exemptions from the 

general eligibility requirement for unemployment benefits. 374 U. S., at 

419–420 (Harlan, J., dissenting). The footnote expressed skepticism

about this interpretation of South Carolina law, but it did not suggest 
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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 interpretation 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 suggested. Sherbert, Thomas, and Hobbie were placed in a special category because they concerned the award of unemployment 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 support 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 expressive 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 interpretation were correct. 

In Cantwell, the Court addressed the constitutionality of a state statute that generally prohibited the solicitation of funds for religious purposes unless a public official found in advance that the cause was authentically 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 solicitation 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”). 
 

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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 prospect of constitutionally required religious exemptions from 

civic obligations of almost every conceivable kind.” 494 

U. S., at 888. The majority recognized that its new interpretation 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 retained. 494 U. S., at 890. 

Four Justices emphatically disagreed with Smith’s reinterpretation of the Free Exercise Clause. Justice O’Connor 

wrote that this new reading “dramatically depart[ed] from 

well-settled First Amendment jurisprudence” and was “incompatible with our Nation’s fundamental commitment to 

individual religious liberty.” 494 U. S., at 891 (opinion concurring in judgment). Justices Brennan, Marshall, and 

Blackmun protested that the majority had “mischaracteriz[ed]” and “discard[ed]” the Court’s free-exercise jurisprudence on its way to “perfunctorily dismiss[ing]” the “settled and inviolate principle” that state laws burdening

religious freedom may stand only if “justified by a compelling 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 inundated with reports of the decision’s consequences.26 In response, it attempted to restore the Sherbert test. In the 

—————— 

26A 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 
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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); Remarks 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 Persons Act (RLUIPA) under its spending power and its power 

to regulate interstate commerce. See 114 Stat. 803. Introduced 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 Congress without a single negative vote and, like RFRA, was 

signed by President Clinton. Id., at 16703, 16623; Statement on Signing the Religious Land Use and Institutionalized 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. Edwards). Members of Congress were also informed that veterans’ cemeteries had refused to allow burial on weekends even when that was required 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 (remarks of Rep. Hoyer); see also id., at 9684 (remarks of Rep. Schumer)

(“Smith was a devastating blow to religious freedom”). 
 

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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 Exercise 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 irresistible.” 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 precedent); 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 especially surprising since it clashes so sharply with the way in

which Smith’s author, Justice Scalia, generally treated the 
 

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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 Interpretation 38 (1997). See also NLRB v. Noel Canning, 573 

U. S. 513, 575–583 (2014) (Scalia, J., concurring in judgment); Stop the Beach Renourishment, Inc. v. Florida Dept. 

of Environmental Protection, 560 U. S. 702, 722 (2010) (plurality 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 Columbia 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 understood by the voters,” Justice Scalia’s opinion begins by 

presuming that the “words and phrases” of the Second

Amendment carry “their normal and ordinary . . . meaning.” 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 Heller, we should begin by considering the “normal and ordinary” meaning of the text of the Free Exercise Clause: “Congress shall make no law . . . prohibiting the free exercise [of 

religion].” Most of these terms and phrases—“Congress,”27 

—————— 27Although 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); Hamilton 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 Protective Assn., 485 U. S. 439 (1988) (considering First Amendment claim 

based on federal agency’s decision); Thomas v. Review Bd. of Ind. Employment 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 Amendment 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 privileges or immunities of citizens of the United States” (emphasis added)). 
 

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“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 

—————— 28The 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 soliciting 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. Federal 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 Meiklejohn 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. 29Whatever the outer boundaries of the term “religion” as used in the 

First Amendment, there can be no doubt that CSS’s contested policy represents an exercise of “religion.” 
 

 

 

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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 Language (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 reference 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 Johnson (1755).32 

—————— 30See also N. Bailey, Universal Etymological English Dictionary (22d 

ed. 1770) (Bailey) (“to forbid, to bar, to keep from”); T. Dyche & W. Pardon, A New General English Dictionary (14th ed. 1771) (Dyche & Pardon) (“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”). 31See 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 worship”). 32See also Dyche & Pardon (“at liberty, that can do or refuse at his 

pleasure, that is under no restraint”); 1 Ash (“Having liberty,” “unrestrained,” ”exempt”); 1 Webster (“1. Being at liberty; not being under necessity or restraint, physical or moral . . . 5. Unconstrained; unrestrained; not under compulsion or control”); 1 Boag 567–568 (“Being at 

liberty; not being under necessity or restraint, physical or moral . . . Unconstrained; unrestrained, not under compulsion or control. Permitted; 

allowed; open; not appropriated. Not obstructed”). 
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If we put these definitions together, the ordinary meaning of “prohibiting the free exercise of religion” was (and

still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a

far cry from the interpretation adopted in Smith. It certainly 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 antidiscrimination provision: It means that the Federal Government and the States cannot restrict conduct that constitutes 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 Amendment rights of criminal defendants? 

Or consider the Seventh Amendment, which gives a specified group of people (parties in most civil “Suits at common 

law”) “the right of trial by jury.” Would there be any ques-
 

 

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26 FULTON v. PHILADELPHIA 

ALITO, J., concurring in judgment 

tion that a law abolishing juries in all civil cases would violate the rights of parties in cases that fall within the Seventh 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 secure a consent decree allowing them an extra hour. Suppose that the State later adopts a rule requiring all applicants 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 legislature later enacts a law requiring such inspections for all vehicles 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? Philadelphia’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, Professor McConnell came up with this argument—but then rejected it. McConnell, Free Exercise Revisionism 1115– 

1116. 
 

 

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The argument goes as follows: Even if a law prohibits conduct that constitutes an essential religious practice, it cannot 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 hypothetical 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 forbidding the slaughter of a conscious animal would not “prohibit” kosher and halal slaughterhouses? A rule categorically 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 foregone

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-discrimination 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 
 

 

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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 treatment of one sort or another also appeared in the religious

liberty provisions of colonial charters and state constitutions.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 disregard the possibility that some of the terms in the Free Exercise Clause had a special meaning that was well understood 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 

—————— 33See, 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 Exercise and Enjoyment of religious Profession and Worship, without Discrimination 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 profession and worship, without discrimination or preference, shall, forever 

hereafter, be allowed within this state to all mankind” (emphasis

added)). 
 

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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 accordance 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 

—————— 

34See, e.g., McConnell, The Origins and Historical Understanding of 

Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990) (McConnell, Origins); 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 Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992) (Hamburger, Religious

Exemption); Hamburger, More Is Less, 90 Va. L. Rev. 835 (2004) (Hamburger, More Is Less); Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313 (1996); Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245 (1991);

Campbell, Note, A New Approach to Nineteenth Century Religious Exemption Cases, 63 Stan. L. Rev. 973 (2011) (Campbell, A New Approach); 

Kmiec, The Original Understanding of the Free Exercise Clause and Religious Diversity, 59 UMKC L. Rev. 591 (1991); Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106 (1994); Lombardi,

Nineteenth-Century Free Exercise Jurisprudence and the Challenge of 
 

 

 

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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 appears to be the first “free exercise” provision was adopted in

1649. Prompted by Lord Baltimore,35 the Maryland Assembly 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 Commentaries 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 Congress, 31 Harv. J. L. & Pub. Pol’y 1083 (2008) (Muñoz, Original Meaning); 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 Judgments 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 religious Concernments, who do not actually disturb the Civil Peace”);

Charter of Delaware, Art. I (1701), in id., at 15 (ensuring “[t]hat no person . . . 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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State except Connecticut had a constitutional provision protecting religious liberty. McConnell, Origins 1455. In fact, 

the Free Exercise Clause had more analogs in State Constitutions 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, disquieted 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 NewJersey, 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 Liberty 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 Person . . . shall at any time be any way molested, punished, disturbed, disquieted 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] Persuasion 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, freedom of religion enjoyed broad protection, and the right “was

universally said to be an unalienable right.” McConnell, 

Origins 1456.38 

—————— 38See 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 inestimable Privilege of worshipping Almighty GOD in a Manner agreeable 

to the Dictates of his own Conscience; nor under any Pretence whatsoever 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 according 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 Almighty God according to the dictates of their own consciences and understanding: 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 maintain 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 deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority 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 Dictates 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 contrary 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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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 governments and religious bodies. The works of a variety of thinkers were influential, and views on religious liberty were informed by religion, philosophy, historical experience,

particular controversies and issues, and in no small measure by the practical task of uniting the Nation. The picture

is complex.

For present purposes, we can narrow our focus and concentrate 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 fundamental rights,39 and the right to religious liberty was unquestionably 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 predominant model. This model extends broad protection for religious liberty but expressly provides that the right does not 

protect conduct that would endanger “the public peace” or

“safety.” 

—————— 

of religious Worship”). 39See McDonald v. Chicago, 561 U. S. 742, 769 (2010); see also Creating 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). 
 

 

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34 FULTON v. PHILADELPHIA 

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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 Declaring Rights & Priviledges in 1691.42 

By the founding, more than half of the State Constitutions 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 persons 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, Maryland, 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 

—————— 40See 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 Licentiousness and Prophaneness; nor to the Civil Injury, or outward Disturbance of others” (emphasis deleted)). 41See 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 others”). 42New 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 Liberty to Licentiousness, nor to the civil Injury or outward Disturbance of 

others”). 

43Del. 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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—————— 

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 person 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 Universe. 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; 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 natural 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 Profession 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 Prophaneness; 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” (emphasis added)). 
 

 

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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 peaceable 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 language in the Northwest Ordinance of 1789. See Act of Aug. 

7, 1789, 1 Stat. 52 (reaffirming Art. I of Northwest Ordinance of 1787). Since the First Congress also framed and 

approved the Bill of Rights, we have often said that its apparent 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 legislatures—providing broad protection for the free exercise of religion except where public “peace” or “safety” would be endangered—is antithetical to Smith. If, as Smith held, the 

free-exercise right does not require any religious exemptions from generally applicable laws, it is not easy to imagine situations in which a public-peace-or-safety carveout

would be necessary. Legislatures enact generally applicable 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 response is that the free-exercise provisions that included 

these carveouts were tantamount to the Smith rule because 
 

 

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any conduct that is generally prohibited or generally required 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 unnaturally broad interpretation. Samuel Johnson’s 1755 dictionary defined “peace” as: “1. Respite from war. . . . 2. 

Quiet from suits or disturbances. . . . 3. Rest from any commotion. 4. Stil[l]ness from riots or tumults. . . . 5. Reconciliation 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 

—————— 44See also 2 Webster (“1. In a general sense, a state of quiet or tranquility; 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, terror, 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 accommodation of differences”). 45See also Bailey (“Freedom from Danger, Custody, Security”); 2 Ash 

(“Security from danger, freedom from hurt; custody, security from escape”); 2 Webster (“[1.] Freedom from danger or hazard . . . . 2. Exemption from hurt, injury or loss. . . . 3. Preservation from escape; close custody. . . . 4. Preservation from hurt”). 
 

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38 FULTON v. PHILADELPHIA 

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many laws do not threaten “war,” “disturbances,” “commotion,” “riots,” “terrour,” “danger,” or “hurt.” Blackstone catalogs 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 “cleansing of rivers, public streams, ditches and other conduits”;47 

“retaining a man’s hired servant before his time is expired”;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 assembling 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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libel “to provoke . . . wrath, or expose [an individual] to public hatred, contempt, and ridicule.” Ibid. (emphasis deleted); 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 ordinary 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 violations of any law.55 

—————— 54Some late 18th century and early 19th century dictionaries provided 

special definitions of the term “peace” as used in the law, and these definitions 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”). 55Such 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 authority was understood that way. New York’s 1777 Constitution demonstrates the point. As noted above, it protected free exercise unless a person 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 government, welfare, and prosperity.” Art. XIX, in 5 Federal and State Constitutions 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 Persecution 835–836. In like manner, State Constitutions and other declarations 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). 
 

 

 

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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 legislatures 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, Carolina allowed Quakers to enter a pledge rather than swearing an oath. Ibid. In 1691, New York permitted Quakers 

to give testimony after giving an affirmation. Ibid. Massachusetts did the same in 1743. Id., at 1467–1468. In 1734, 

New York also allowed Quakers to qualify to vote by making an affirmation, and in 1740, Georgia granted an exemption 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 exemptions. 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-
 

 

 

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ted Quakers holding certain government positions to decline to take the prescribed oath of office, allowing affirmations 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 Constitution.” 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 example. 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 militia 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 Hampshire 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 religious objectors because conscription would do “violence to 

their consciences.” Resolution of July 18, 1775, in 2 Journals 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 desperate need of soldiers,56 the very survival of the new Nation 

—————— 56Mayer, The Continental Army, in A Companion to the American Revolution 309 (J. Greene & J. Pole eds. 2000); R. Wright, The Continental 

Army 153–154, 163 (1983). 
 

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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 nonmembers 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 exemptions 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 Hampshire exempted those who could prove they were “‘conscientiously’” 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 

—————— 57See The Oxford Companion to American Military History 606–608, 

611 (J. Chambers ed. 1999). 58See 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 Independence: 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 Declaration 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 destroyed; and 13 saw their homes occupied, confiscated, or damaged. M. 

Novak, On Two Wings: Humble Faith and Common Sense at the American Founding 157–158 (2002). 
 

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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 legislatures 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 Revisionism 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 applicable 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 under which he is arrested is neutral and generally applicable.” 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 
 

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44 FULTON v. PHILADELPHIA 

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protect against government actions taken “for” or “on account 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 exercise [of religion]”); New York Constitution (1777), in id., 

at 26 (guaranteeing “the free Exercise and Enjoyment of religious 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 accommodation,” City of Boerne, 521 U. S., at 542 (opinion of Scalia, 

J.). If exemptions were thought to be constitutionally required, 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 discussed the dearth of cases, and as they note, there are many

possible explanations.59 Early 19th century legislation imposed only limited restrictions on private conduct, and this

minimized the chances of conflict between generally applicable laws and religious practices. The principal conflicts

that arose—involving oaths, conscription, and taxes to support 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 

—————— 59See Barclay, The Historical Origins of Judicial Religious Exemptions, 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). 
 

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Christian and Protestant, the major Protestant denominations 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 between 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 encounter 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 always been reported. Barclay, The Historical Origins of Judicial 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 

—————— 60W. Newman & P. Halvorson, Atlas of American Religion 18 (2000). 

61 Ibid. 

62The 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 Critique, 25 J. L. & Religion 487, 488 (2009). They immigrated to the United 

States and, in the 1790s, organized a branch of the Reformed Presbyterian Church. Id., at 489. Members ascribe to two foundational documents—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 448; see also J. McFeeters, 

The Covenanters in America: The Voice of Their Testimony on Present 

Moral Issues 57 (1892). 
 

 

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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 inapplicable because the Protestant minister who was called to testify 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 support 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 opinion. Farnandis v. Henderson, 1 Carolina L. J. 202, 213, 214 

(1827).64

 In Commonwealth v. Cronin, 2 Va. Cir. 488, 498, 500, 505 

—————— 

63Privileged Communications to Clergymen, 1 Cath. Law. 199, 207– 

209 (1955). 64See also Walsh 41; Campbell, A New Approach 992, n. 99; Lombardi, 

Free Exercise 408, and n. 152. 
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(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 opponent of exemptions was John Bannister Gibson of the Pennsylvania 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 religious liberty conferred the right to do or forbear from doing any act “not prejudicial to the public weal,” but he argued 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 religious objection to trial on Saturday. Id., at 416–417. He 

proclaimed that a citizen’s obligation to the State must always 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 religious movement from jury service. Because Covenanters 

opposed the Constitution on religious grounds, they refused 
 

 

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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 government.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 floodgates 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 villain”). But if Willson is read as rejecting religious exemptions, 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 Saturday 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 

—————— 65See 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 system”); 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 himself upon oath, under the direction of a law which is immoral. The Reformed Presbytery declare this practice inconsistent with their Testimony, and warn Church-members against serving on juries under the 

direction of the constituted courts of law”). 66See 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 concurred in the opinion in Farnandis). 
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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. Commonwealth, 8 Pa. 312 (1848). The court observed that the merchant’s conscience rights might have been violated if his religion 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 imperative 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 Supreme 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,” 
 

 

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and that he had confessed “not to the church” but “to his 

friends and neighbours.” Id., at 162. Because the court provided 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 target religious practice had been used to suppress religious 

exercise by slaves. See generally Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under 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 Exemption 928. 

Here is the relevant history. The House debated a provision, 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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the proposal,67 others opposed it,68 and in the end, after adding 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 conscientious 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 exemptions but because they feared that exemption from military 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 potential effect on national security shows the depth of the Members’ 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 generally 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 

—————— 67Hamburger, Religious Exemption 928, and n. 56 (quoting the statement of Rep. Boudinot). 68 Id., at 928, and n. 57 (quoting the statement of Rep. Benson). 69Muñoz, Original Meaning 1115. 

70Several State Constitutions contained both Free Exercise Clause analogs 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. 
 

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many possible explanations for what happened in the Senate. 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 particular times. 

* * * 

In sum, based on the text of the Free Exercise Clause and 

evidence about the original understanding of the free-exercise right, the case for Smith fails to overcome the more natural 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 Employees, 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 interpretation 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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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) (overruling 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. Gobitis, 310 U. S. 586 (1940)).

In assessing whether to overrule a past decision that appears to be incorrect, we have considered a variety of factors, and four of those weigh strongly against Smith: its reasoning; 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 reliance, weighs in Smith’s favor. 

A 

Smith’s reasoning. As explained in detail above, Smith is 

a methodological outlier. It ignored the “normal and ordinary” meaning of the constitutional text, see Heller, 554 

U. S., at 576, and it made no real effort to explore the understanding 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 “erroneous,” Wisconsin Right to Life, Inc., 551 U. S., at 500–501 
 

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54 FULTON v. PHILADELPHIA 

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(opinion concurring in part). William Gobitas,71 a 10-yearold 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 salute constituted idolatry. 310 U. S., at 591–592.72 William’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 toleration, 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 

40 years of Supreme Court precedent.

But even if all that is put aside, Smith’s recourse to Gobitis 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 

—————— 71The family name was apparently misspelled in the case caption. See 

Sutton, Barnette, Frankfurter, and Judicial Review, 96 Marq. L. Rev. 

133, 134 (2012). 72See also N. Feldman, Scorpions 179 (2010). 

73 Ibid. 

74 Id., at 180. 
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their head, Barnette held that students with religious objections to saluting the flag were indeed “relieved . . . from obedience to a general [rule] not aimed at the promotion or restriction 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 interpretation 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 repudiated that distinction a half century before Smith was decided. 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 Jehovah’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 diminished weight to the burden imposed by the law (because 

—————— 75This discussion does not suggest that Reynolds should be overruled. 
 

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56 FULTON v. PHILADELPHIA 

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it did not require work on Saturday), id., at 606,76 and on 

the other side of the balance, the Court accepted the Commonwealth’s view that the public welfare was served by

providing a uniform day of rest, id., at 608–609; see Sherbert, 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 involved 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 category.

 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 possession 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 regarding Smith and Black. Why this was not sufficient to bring

the case within Smith’s rule about individualized exemptions 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 unemployment 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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455 U. S. 252 (payment of taxes); and Gillette, 401 U. S. 437 

(denial of conscientious objector status to person with religious 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 totally unrelated to unemployment benefits. 406 U. S., at 

220–221, 236. To dispose of Yoder, Smith was forced to invent 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 single 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 
 

 

 

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58 FULTON v. PHILADELPHIA 

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result would be a (barely) sufficient hybrid claim. Such a 

scheme is obviously unworkable and has never been recognized outside of Smith. 

And then there is the problem that the hybrid-rights exception 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 participated in this sacrament, weren’t they engaging in a form of

expressive conduct? Their ingestion of peyote “communicate[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 communicate this message” in violation of the Free Speech Clause.

McConnell, Free Exercise Revisionism 1122. And, “if a hybrid 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 redundancy, 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 categories for unemployment compensation cases, cases involving 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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B 

Consistency with other precedents. Smith is also discordant 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 Hosanna-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 Opportunity 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 exception applied. Id., at 190.77 Similarly, in Our Lady of Guadalupe School v. Morrissey-Berru, 591 U. S. ___, ___–___ 

—————— 77Our strained attempt to square the ministerial exception with Smith 

highlights the tension between the two decisions. Smith held that a generally 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 distinguish Smith as involving only “outward physical acts” instead of “the 

faith and mission of the church itself.” 565 U. S., at 190. But a prohibition of peyote use surely affected “the faith and mission” of the Native

American Church, which regards the ingestion of peyote as a sacrament. 
 

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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 exercise 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 marriage to individuals who are willing to officiate both opposite-sex and same-sex weddings.

Other inconsistencies exist. Smith declared that “a private 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 unconstitutional as applied to a particular set of facts, see Barclay &

Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 Boston College L. Rev. 1595, 1611 (2018), and cases holding generally 
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applicable laws unconstitutional as applied are unremarkable. “[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 quotation 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 “constitutionally applied” to a minor party whose members and contributors 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 disclosure 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 intentional infliction of emotional distress) could not constitutionally 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 under 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) (respondents not liable under law prohibiting disclosure of illegally 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 expressive conduct on public sidewalks not subject to law generally regulating conduct on Supreme Court grounds). 

Finally, Smith’s treatment of the free-exercise right is 
 

 

 

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62 FULTON v. PHILADELPHIA 

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fundamentally at odds with how we usually think about liberties 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 political controversy, to place them beyond the reach of majorities 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 luxury” of protecting the free exercise of religion from generally applicable laws. Id., at 888. Under this interpretation,

the free exercise of religion does not receive the judicial protection 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. Instead, at least four serious problems have arisen and continue 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 follow 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 freeexercise 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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to vary simply with the number of constitutional rights that 

the plaintiff asserts have been violated”); Knight v. Connecticut Dept. of Pub. Health, 275 F. 3d 156, 167 (CA2 2001); 

Combs, 540 F. 3d, at 247 (“Until the Supreme Court provides direction, we believe the hybrid-rights theory to be

dicta”).

A second camp holds that the hybrid-rights exception applies only when a free-exercise claim is joined with some 

other independently viable claim. See Archdiocese of Washington v. WMATA, 897 F. 3d 314, 331 (CADC 2018) (A “hybrid 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 challenge 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 companion claim because such a test would make the free exercise 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. University 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, at 

1295–1297. But what that means is obscure. See, e.g., id., 

at 1295 (referring to “helpful” analogies such as the “‘likelihood of success on the merits’ standard for preliminary injunctions” or the pre-Antiterrorism and Effective Death 

Penalty Act standard for obtaining an evidentiary hearing, 
 

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64 FULTON v. PHILADELPHIA 

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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 purportedly 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 inquiry. 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 promulgation 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 comments 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 

—————— 78Recently, some lower courts have proceeded under yet another approach, which analyzes whether the claims presented are sufficiently

similar to those raised in the cases that this Court purported to distinguish 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). 
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Rehnquist took the position that the “object” of a rule must 

be determined by its terms and that evidence of the rulemakers’ motivation should not be considered. 508 U. S., at 

557–559. This interpretation had the disadvantage of allowing skillful rulemakers to target religious exercise by devising a facially neutral rule that applies to both the targeted 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 difficult business of ascertaining the subjective motivations of 

rulemakers. In Lukumi, Justices Kennedy and Stevens 

took that path and relied on numerous statements by council members showing that their object was to ban the practice 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 Colorado 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 disparaging 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 questions remain open.

The present case highlights two—specifically, which officials’ motivations are relevant and what degree of disparagement must be shown to establish unconstitutional targeting. In Masterpiece Cakeshop, the commissioners’ 

statements—comparing the baker’s actions to the Holocaust and slavery and suggesting that his beliefs were just 
 

 

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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 Department 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. Although the mayor conferred with the DHS commissioner

both before and after her meeting with CSS representatives, the mayor’s remarks were disregarded because there 

was no evidence “that he played a direct role, or even a significant 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 teaching, which “some might think . . . improper” “if taken out of 

context” was “best viewed as an effort to reach common 

—————— 79App. 367–369 (Commissioner Figueora testifying that she was appointed 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). 80App. 182, 365–366. Apart from the statements made by City officials, other evidence suggested that the City was targeting CSS. For instance, the City changed its justification for the closure of intake to CSS 

numerous times. Brief for Petitioners 12–15 (describing six different justifications). And although the City’s stated harm was that CSS’s process 

for certifying new families was discriminatory, it responded by prohibiting placement with all CSS families, including those already certified. 

The City’s response therefore appears to “proscribe more religious conduct than is necessary to achieve [its] stated ends.” Lukumi, 508 U. S., 

at 538. 
 

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ground with [CSS] by appealing to an authority within their 

shared religious tradition.” Ibid. One may agree or disagree with the Third Circuit’s characterization and evaluation 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 surfaced 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 Governor 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 enforce 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 inconsequential. Id., at ___–___ (slip op., at 4–5) (opinion of 

SOTOMAYOR, J., joined by KAGAN, J.).

In Stormans, Inc. v. Wiesman, 579 U. S. ___ (2016) (denying certiorari), there was similar disagreement. That case 

featured strong evidence that pro-life Christian pharmacists 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. Stormans, 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, 
 

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68 FULTON v. PHILADELPHIA 

ALITO, J., concurring in judgment 

Stormans, Inc., 794 F. 3d 1064, 1079 (2015). Compare Stormans, 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 remain 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 Kosher 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 evidenced 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 special 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., Midrash 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 others 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. 
ALITO, J., concurring in judgment

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ALITO, J., concurring in judgment 

4 

Identifying appropriate comparators. To determine 

whether a law provides equal treatment for secular and religious conduct, two steps are required. First, a court must 

identify the secular conduct with which the religious conduct is to be compared. Second, the court must determine 

whether the State’s reasons for regulating the religious conduct 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 different restrictions for different categories of activities.

Sometimes religious services have been placed in a category

with certain secular activities, and sometimes religious services 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 necessary to compare the restrictions on religious services with 

the restrictions on secular activities that present a comparable risk of spreading the virus, and identifying the secular 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 restrictions on religious services, THE CHIEF JUSTICE’s concurrence likened religious services to lectures, concerts, 

movies, sports events, and theatrical performances. Id., at 

___ (slip op., at 2). The dissenters, on the other hand, focused on “supermarkets, restaurants, factories, and offices.” Id., at ___ (opinion of KAVANAUGH, J., joined by

THOMAS and GORSUCH, JJ.) (slip op., at 3). 
 

ALITO, J., concurring in judgment

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, museums, art galleries, zoos, aquariums, trade schools, and technical schools.” Response to Emergency Application for Injunction, 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, bowling alleys, and fitness facilities. 591 U. S., at ___–___ 

(ALITO, J., joined by THOMAS and KAVANAUGH, JJ., dissenting) (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 ___ (opinion 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 preschools, colleges, and universities to stay open and also allowed attendance at concerts and lectures. Danville Christian Academy, Inc. v. Beshear, ___ F. Supp. 3d ___, 2020 WL 

6954650, *4 (ED Ky., Nov. 25, 2020). The Sixth Circuit reversed, concluding that the rule was neutral and generally 

applicable because it applied to all elementary and secondary 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 
ALITO, J., concurring in judgment

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 Beneficente 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 appropriately balanced way”).

Another significant development is the subsequent profusion of studies on the original meaning of the Free Exercise Clause. When Smith was decided, the available scholarship 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 

—————— 81See, e.g., McConnell, Origins 1409; McConnell, Free Exercise Revisionism 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. 
 

 

ALITO, J., concurring in judgment

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 overruling Smith would cause “substantial regulatory . . . disruption” 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 overruling Smith disrupt the operation of laws that were enacted to abrogate Smith? 

One of the City’s amici, the New York State Bar Association, offers a different reliance argument. It claims that 

some individuals, relying on Smith, have moved to jurisdictions with anti-discrimination laws that do not permit

religious exemptions. Brief for New York State Bar Association 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 outside the scope of RLUIPA. Fourth, the conduct, although

not protected by Smith, would have to be otherwise permitted 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 decision 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. 
ALITO, J., concurring in judgment

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., concurring 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 precedent 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 applied in this case? The answer that comes most readily to

mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained 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 
 

ALITO, J., concurring in judgment

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 parents, 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 expression 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 expresses ideas that offend”); Hurley, 515 U. S., at 579 (“[T]he 

law . . . is not free to interfere with speech for no better reason 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 Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself 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 reason for suppressing it. Indeed, if it is the speaker’s opinion 

that gives offense, that consequence is a reason for according 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 
ALITO, J., concurring in judgment

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ALITO, J., concurring in judgment 

abridgment of . . . constitutional freedoms”). 

The same fundamental principle applies to religious practices that give offense. The preservation of religious freedom 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 offensive 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 insulting 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 because it expresses an idea that some find hurtful is a zerosum 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 Obergefell 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 condoned.” Id., at 679. An open society can keep that promise 

while still respecting the “dignity,” “worth,” and fundamental 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 
 

ALITO, J., concurring in judgment

76 FULTON v. PHILADELPHIA 

ALITO, J., concurring in judgment 

is simply asserting the right to control its own internal operations, and they analogize CSS to either a City employee 

or a contractor hired to perform an exclusively governmental function. 

This argument mischaracterizes the relationship between 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 exclusively 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 foster 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 today, they typically leave most of the work to private agencies. 

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 licensing requirement.” National Institute of Family and 

Life Advocates v. Becerra, 585 U. S. ___, ___ (2018) (slip op., 

at 14). 
ALITO, J., concurring in judgment

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 after 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 overrule 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 precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice. 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 scrutiny. 494 U. S., at 878–881. The City argues that its challenged rules qualify for that exemption because they require 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 assumes (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 district court held that the City’s public accommodations law 

(its Fair Practices Ordinance or FPO) is both generally applicable and applicable to CSS. At least initially, the majority 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 accommodations 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 majority’s choice to focus its attack on the district court’s minor 

premise—that the FPO applies to CSS as a matter of municipal law—begins to make some sense. Still, it isn’t exactly 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 omitted).

Trailblazing through the Philadelphia city code turns out

to be no walk in the park either. As the district court observed, the City’s FPO defines “public accommodations” expansively to include “[a]ny provider” that “solicits or accepts 

patronage” of “the public or whose . . . services [or] facilities” 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 majority 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 accommodations—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 distinction come from? Not the text of the state statute, not 

state case law, and certainly not from the briefs. The majority 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 probably 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 statute emphasizes that these examples are illustrative, not exhaustive. See §954(l). Among its illustrations, too, the statute 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 position . . . that its ‘foster services do not constitute a “public 

accommodation” under the City’s Fair Practices Ordinance.’” 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. Instead, 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—anything—to support its curious separate-statute move. But 

maybe the majority means to reject the district court’s major premise after all—suggesting it would be incongruous 

for public accommodations laws to qualify as generally applicable under Smith because they do not apply to everyone.

Or maybe the majority means to invoke a canon of constitutional avoidance: Before concluding that a public accommodations 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 ambiguity 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 argument 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 instructs that foster service providers “shall not discriminate

or permit discrimination against any individual on the basis 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 applicability 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 provision of the contract—§3.21. See ante, at 7–9. Entitled “Rejection 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 government seeks to place a particular child with an available foster 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 account 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 concerns the recruitment and certification stages—where foster 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 exceptions 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 contract, 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 nullifying §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 discretion. 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 specific 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, amicus, or lower court argued for any of this. 
 

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GORSUCH, J., concurring in judgment 

To be sure, the majority again claims otherwise—representing 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. Instead of pursuing anything like the majority’s contract arguments, 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 anywhere “undercuts its asserted interests” and thus “trigger[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 actually 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 majority seems determined to declare there is no “need” or “reason” 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, municipal 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 tolerate 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 committed 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 devote 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 Masterpiece 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 certain government officials responsible for deciding Mr. Phillips’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 freedom 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 understand 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 Catholic 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 underlying ailment. We owe it to the parties, to religious believers, 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 questioned 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 explaining 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, challenging 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. American 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 studious 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. Perhaps our colleagues believe today’s circuitous path will at 

least steer the Court around the controversial subject matter 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 constitutional 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.