At oral arguments, the court’s conservative bloc signaled it would abandon Scalia’s pragmatic approach to judicial power and religious freedom in favor of something else. “Look, if we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” Justice Samuel Alito, the court’s least-subtle member, told the lawyer representing the city of Philadelphia. “It’s the fact that the city can’t stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”
Writing for the court, however, Roberts opted to use a different line of precedent to rule in the agency’s favor. “CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so,” he wrote. “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.” Since the city’s contract allows for exemptions from the anti-discrimination provisions, Roberts reasoned, the problem actually hinged on the refusal to grant one.
The result met with sharp criticism from Justice Samuel Alito, who called on the court to overturn Smith once and for all. “This decision might as well be written on the dissolving paper sold in magic shops,” he wrote in a concurring opinion joined by Justice Clarence Thomas and Neil Gorsuch that sounded more like a dissent. “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. If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started.”
Some of Alito’s colleagues appeared unwilling to overturn Smith based on his hypothetical scenario. In a concurring opinion, Barrett noted that there was no clear originalist alternative to Smith because the historical record is “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.” She argued that “the textual and structural arguments against Smith are more compelling,” but could not find a clear answer for what should replace Smith if it were struck down.
