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Advocate’s View: Foster Care Case May Affect Challenges to COVID Restrictions

March 29, 2021

A little over a month ago, the United States Supreme Court heard oral argument in Fulton v. City of Philadelphia. Fulton challenges a decision by the city of Philadelphia to stop referring foster-care cases to a Catholic foster-care association because of its refusal, based on its religious beliefs, to certify same-sex couples as foster parents. But in addition to arguing that the city’s decision violates the First Amendment, Fulton also asks the Court to overrule its 1990 decision Employment Division v. Smith. If it did so, that would significantly change the way religious liberty challenges are litigated, including recent religious liberty challenges to New York’s COVID restrictions.

Smith and Strict Scrutiny

Before Smith, laws that created a substantial burden on religious exercise had to pass a test called “strict scrutiny” — they had to be justified by a compelling government interest, and they had to be the least restrictive means of accomplishing that interest. Smith changed this analysis by holding that a law does not violate the First Amendment, even if it burdens someone’s exercise of their religion, as long as the law is neutral toward religion and applies generally to the same conduct regardless of whether it is motivated by religion or not. In Smith, for example, the Court held that a state law that disqualified from unemployment benefits anyone fired for drug use was constitutional, even though it punished someone for only sacramental use of a small amount of peyote in a Native American worship service, because it applied to all drug use generally, instead of singling out religious drug use.

To be sure, Smith didn’t kill off strict scrutiny altogether. The Court later clarified in Church of Lukumi Babalu Aye v City of Hialeah that a law may single out religion and thus trigger strict scrutiny, even if it appears to be neutral and generally applicable on its face, if it targets religious exercise in application. In Lukumi, for example, a city enacted an ordinance prohibiting slaughtering animals that was neutral on its face, but that was motivated by anti-Santeria animus and that included exemptions that permitted a wide range of non-religiously-motivated animal slaughter, and in practice only prohibited a Santerian church from performing animal sacrifices. The court held that the ordinance had to pass strict scrutiny

But Smith’s “general applicability” test is still a low bar. The religious liberty challenge that gets past Smith is the exception, and the result has been a dramatic decrease since Smith in the number of religious liberty challenges to laws that burden religious exercise.

Free-exercise challenges to COVID Restrictions

Thus far, three religious groups have launched free-exercise challenges to Gov. Cuomo’s most recent set of restrictions issued in response to the COVID-19 pandemic. These groups argue that the attendance caps on religious services violate their first amendment right of free exercise. District courts in New York and the Second Circuit denied preliminary injunctions in these cases, finding them not likely to succeed on the merits, given Smith’s low standard. A divided Supreme Court reversed the Second Circuit’s denial, with a majority of the Court finding that the restrictions single out religious activities under Smith because the attendance caps apply specifically to religious services as opposed to other kinds of activities.

But if Smith were not the governing rule, then in order to trigger strict scrutiny, challengers to COVID restrictions would need to show only that the restrictions substantially burden their religious exercise, which is much easier than having to show that the restrictions specifically target religion. It would be much harder without Smith for lower courts to find no likelihood of success on the merits in such challenges.

Predictions are dangerous, but based on the oral argument last month, the reversal of the Second Circuit’s denial of an injunction, and the general trend of the Supreme Court’s receptiveness to religious liberty claims, the Court seems, in this writer’s opinion, sympathetic to the challengers in Fulton, but still more likely to continue to narrow Smith incrementally than to overrule it outright at this point.

If the Court takes the more drastic step of overruling Smith, the landscape will be even friendlier to such challenges, and we can expect to see a substantial increase of religious liberty challenges not only to COVID restrictions, but to all kinds of state action that burdens religious exercise. But even without overruling Smith, the Court is likely going to be increasingly sympathetic over the long term to religious liberty claims.

For more information contact Adams Leclair LLP at 585.327.4100 or

1 Docket No. 19-123 (U.S. Sup. Ct.).
2 494 U.S. 872 (1990).
3 E.g., Sherbet v. Verner, 374 U.S. 398 (1963).
4 508 U.S. 520 (1993).
5 See generally, e.g., Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 SETON HALL L. REV. 353 (2018).
6 See Agudath Israel of Am. v. Cuomo, 98- F.3d 222 (2d Cir. Nov. 9, 2020); Soos v. Cuomo, 2020 WL 6384683 (N.D.N.Y. Oct. 30, 2020); Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 WL 5994954 (E.D.N.Y. Oct. 9, 2020).
7 Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 WL 6948354 (U.S. Sup. Ct. Nov. 35, 2020).

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