Fulton v. Philadelphia

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 2
Pages 522–627
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 17, 2021
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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522 OCTOBER
TERM, 2020
Syllabus
FULTON et al. v. CITY OF PHILADELPHIA,
PENNSYL
VANIA, 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 con-
tracts with the agencies to place children with foster families. One of
the responsibilities of the agencies is certifying prospective foster fami-
lies 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 certifcation of prospective foster families is an endorse-
ment of their relationships, it will not certify unmarried couples—re-
gardless of their sexual orientation—or same-sex married couples. But
other private foster agencies in Philadelphia will certify same-sex cou-
ples, and no same-sex couple has sought certifcation from CSS.
Against this backdrop, a 2018 newspaper story recounted the Archdio-
cese 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 ex-
plained that the refusal of CSS to certify same-sex 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 Prac-
tices Ordinance.
CSS and three affliated foster parents fled 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.
The District Court denied preliminary relief. It reasoned that the con-
tractual non-discrimination requirement and the Fair Practices Ordi-
nance 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 affrmed. Given the expiration
of the parties' contract, the Third Circuit examined whether the City

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as: 593 U. S. 522 (2021)
523
Syllabus
could condition contract renewal on the inclusion of new language for-
biddi
ng 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 par-
ents 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. 532–543.
(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 inci-
dentally 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. Hia-
leah, 508 U. S. 520, 531–532. A law is not generally applicable if it
invites the government to consider the particular reasons for a per-
son'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. 532–534.
(b) The non-discrimination requirement of the City's standard fos-
ter care contract is not generally applicable. Section 3.21 of the con-
tract requires an agency to provide services defned 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 en-
tirely 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 contrac-
tors, but the result here is the same under any level of deference. Simi-
larly 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 conten-
tion 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 cou-
ples “explicit” in future contracts. Finally, because state law makes

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524 FUL
TON v. PHILADELPHIA
Syllabus
clear that the City's authority to grant exceptions from section 3.21 also
gover
ns section 15.1's general prohibition on sexual orientation discrimi-
nation, the contract as a whole contains no generally applicable non-
discrimination requirement. Pp. 534–538.
(c) Philadelphia's Fair Practices Ordinance, which as relevant for-
bids interfering with the public accommodations opportunities of an in-
dividual based on sexual orientation, does not apply to CSS's actions
here. The Ordinance defnes a public accommodation in relevant part
to include a provider “whose goods, services, facilities, privileges, ad-
vantages or accommodations are extended, offered, sold, or otherwise
made available to the public.” Phila. Code § 9–1102(1)(w). Certifca-
tion is not “made available to the public” in the usual sense of the words.
Certifcation 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 rid-
ing a bus. The District Court's contrary conclusion did not take into
account the uniquely selective nature of foster care certifcation.
Pp. 538–540.
(d) 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 ques-
tion 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 reli-
gious 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. 540–543.
922 F. 3d 140, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Breyer,
Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined. Barrett,
J., fled a concurring opinion, in which Kavanaugh, J., joined, and in which
Breyer, J., joined as to all but the frst paragraph, post, p. 543. Alito,
J., fled an opinion concurring in the judgment, in which Thomas and Gor-

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as: 593 U. S. 522 (2021)
525
Syllabus
such, JJ., joined, post, p. 545. Gorsuch, J., fled an opinion concurring in
the
judgment, in which Thomas and Alito, JJ., joined, post, p. 618.
Lori H. Windham argued the cause for petitioners. With
her on the briefs were Mark L. Rienzi, Eric C. Rassbach,
William J. Haun, and Nicholas R. Reaves.
Deputy Assistant Attorney General Mooppan argued the
cause for the United States as amicus curiae urging rever-
sal. With him on the brief were Solicitor General Fran-
cisco, Assistant Attorneys General Hunt and Dreiband,
Deputy Solicitor General Wall, Deputy Assistant Attorney
General Maugeri, Vivek Suri, Benjamin W. Snyder, Elliott
M. Davis, Michael S. Raab, Lowell V. Sturgill, Jr., and Eric
W. Treene.
Neal Kumar Katyal argued the cause for city respondents
et al. With him on the brief were Mitchell P. Reich, Kirti
Datla, Thomas P. Schmidt, Deepak Gupta, Jonathan E. Tay-
lor, Diana P. Cortes, Jane Lovitch Istvan, Eleanor N.
Ewing, Elise Bruhl, and Joshua Matz.
Jeffrey L. Fisher argued the cause for private respond-
ents. With him on the brief were Leslie Cooper, Joshua A.
Block, James D. Esseks, Louise Melling, Jennesa Calvo-
Friedman, David D. Cole, Daniel Mach, Mary Catherine
Roper, Brian H. Fletcher, Pamela S. Karlan, Yaira Dubin,
and Fred T. Magaziner.*
*Briefs of amici curiae urging reversal were fled for the State of Ne-
braska et al. by Douglas J. Peterson, Attorney General of Nebraska,
David T. Bydalek, Chief Deputy Attorney General, James A. Campbell,
Solicitor General, Mark Brnovich, Attorney General of Arizona, and Dave
Yost, Attorney General of Ohio; for the State of Texas et al. by Ken Pax-
ton, Attorney General of Texas, Jeffrey C. Mateer, First Assistant Attor-
ney General, Ryan L. Bangert, Deputy First Assistant Attorney General,
Kyle D. Hawkins, Solicitor General, Natalie D. Thompson, Assistant So-
licitor General, and Bethany C. Spare, Assistant Attorney General, and by
the Attorneys General for their respective States as follows: Steve Mar-
shall of Alabama, Kevin G. Clarkson of Alaska, Leslie Rutledge of Arkan-
sas, Christopher M. Carr of Georgia, Daniel Cameron of Kentucky, Jeff
Landry of Louisiana, Lynn Fitch of Mississippi, Eric Schmitt of Missouri,
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526 FUL
TON v. PHILADELPHIA
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
Catholic Social Services is a foster care agency in Philadel-
phia. The City stopped referring children to CSS upon
Mike Hunter of Oklahoma, Herbert H. Slatery III of Tennessee, Sean
Reyes of Utah, and Patrick Morrisey of West Virginia; for the Bruderhof
et al. by Christopher C. Lund; for Catholic Charities of the Diocese of
Springfeld, Ill., et al. by Thomas Olp, Thomas Brejcha, and Joan M. Man-
nix; for the Christian Legal Society et al. by Douglas Laycock, Kimberlee
Wood Colby, Reed N. Smith, and Thomas C. Berg; for the Church of Jesus
Christ of Latter-day Saints et al. by Alexander Dushku; for the Coalition
for Jewish Values et al. by Philip D. Williamson; for the Council for
Christian Colleges and Universities et al. by Gene C. Schaerr, Erik S.
Jaffe, Hannah C. Smith, and Kathryn E. Tarbert; for Current and Former
State Legislators by Carson J. Tucker; for Former Foster Children et al.
by Andrea Picciotti-Bayer; for Generation Justice et al. by Alan Gura; for
the Great Lakes Justice Center by William Wagner and Erin Elizabeth
Mersino; for the Institute for Faith and Family et al. by Deborah J. Dew-
art, Tami Fitzgerald, and Arthur A. Schulcz, Sr.; for the Jewish Coalition
for Religious Liberty by Howard Slugh; for the Life Legal Defense Foun-
dation et al. by Catherine W. Short, Thomas P. Monaghan, and Walter M.
Weber; for the National Jewish Commission on Law and Public Affairs
et al. by Nathan Lewin, Alyza D. Lewin, and Dennis Rapps; for the New
Civil Liberties Alliance by Kara Rollins; for New Hope Family Services,
Inc., et al. by Christopher P. Schandevel, Kristen K. Waggoner, and David
A. Cortman; for The Rutherford Institute by John W. Whitehead and Mi-
chael J. Lockerby; for James Blais et al. by Todd McFarland and Andrew
G. Schultz; for Dorothy Frame et al. by Bruce N. Cameron and Frank D.
Garrison; for Edwin Meese III by Edward M. Wenger, Gary V. Perko,
Mohammad O. Jazil, and Edwin Meese, pro se; and for 76 United States
Senators et al. by Miles E. Coleman.
Briefs of amici curiae urging affrmance were fled for the Common-
wealth of Massachusetts et al. by Maura Healey, Attorney General of
Massachusetts, Elizabeth N. Dewar, State Solicitor, and Abigail B. Taylor,
Angela R. Brooks, and Joshua Olszewski-Jubelirer, Assistant Attorneys
General, and by the Attorneys General for their respective jurisdictions
as follows: Xavier Becerra of California, Philip J. Weiser of Colorado,
William Tong of Connecticut, Kathleen Jennings of Delaware, Karl A.
Racine of the District of Columbia, Clare E. Connors of Hawaii, Kwame
Raoul of Illinois, Aaron M. Frey of Maine, Brian E. Frosh of Maryland,
Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of

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527
Opinion of the Court
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.
Nevada, Gurbir S. Grewal of New Jersey, Hector Balderas of New Mexico,
Letitia James of New York, Joshua H. Stein of North Carolina, Ellen F.
Rosenblum of Oregon, Peter F. Neronha of Rhode Island, Thomas J. Don-
ovan, Jr., of Vermont, Mark R. Herring of Virginia, Robert W. Ferguson
of Washington, and Joshua L. Kaul of Wisconsin; for the Commonwealth
of Pennsylvania by Josh Shapiro, Attorney General of Pennsylvania, Mi-
chael J. Fischer, Chief Deputy Attorney General, Jacob B. Boyer, Deputy
Attorney General, Gregory G. Schwab, and Doris M. Leisch; for the ADL
(Anti-Defamation League) et al. by Gilbert R. Serota and Steven M. Free-
man; for American Atheists, Inc., by Geoffrey T. Blackwell; for the Ameri-
can Bar Association by Judy Perry Martinez and Douglas Hallward-Drie-
meier; for the American Psychological Association et al. by Jessica Ring
Amunson, Emily L. Chapuis, Deanne M. Ottaviano, Nathalie F. P. Gil-
foyle, and Aaron M. Panner; for the Annie E. Casey Foundation et al. by
Clifton S. Elgarten, Thomas A. Lorenzen, Amanda Shafer Berman, and
Leland P. Frost; for the Baptist Joint Committee for Religious Liberty
et al. by Mark W. Mosier, David M. Zionts, K. Hollyn Hollman, Jennifer
L. Hawks, Heather E. Kimmel, and Mary E. Kostel; for the Center for the
Study of Social Policy et al. by Shannon P. Minter, Catherine Sakimura,
and Julie Wilensky; for Children's Rights et al. by Kendyl T. Hanks and
Elizabeth Heidi Bloch; for Church-State Scholars by Rachel G. Shalev, E.
Joshua Rosenkranz, Daniel A. Rubens, and Thomas M. Bondy; for Family
Equality et al. by Katherine Keating and William J. Hibsher; for First
Amendment Scholars by Elizabeth B. Wydra, Brianne J. Gorod, David H.
Gans, and Ashwin P. Phatak; for Former Service Secretaries et al. by
Michael E. Bern, George C. Chipev, and Peter Perkowski; for FosterClub
et al. by Jesse R. Loffer, Amanda L. Nelson, and Harper S. Seldin; for
the Freedom From Religion Foundation et al. by Patrick Elliott and Rebe-
cca S. Markert; for GLBTQ Legal Advocates & Defenders et al. by Mary
L. Bonauto, Gary D. Busek, and J. Anthony Downs; for Historians of
Child Welfare by Chanakya A. Sethi; for KidsVoice by David R. Fine; for
the Leadership Conference on Civil and Human Rights et al. by Todd
Anten, Kathleen M. Sullivan, Ellyde R. Thompson, Jomaire A. Crawford,
Vanita Gupta, Michael Zubrensky, Kristen Clarke, Jon Greenbaum, Da-
riely Rodriguez, and Noah B. Baron; for Local Governments et al. by
Richard Dearing, Claude S. Platton, Farimah Faiz Brown, G. Nicholas
Herman, Keith O. Brenneman, Mark A. Flessner, Benna Ruth Solomon,

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528 FUL
TON v. PHILADELPHIA
Opinion of the Court
The question presented is whether the actions of Philadel-
ph
ia violate the First Amendment.
I
The Catholic Church has served the needy children of Phil-
adelphia for over two centuries. In 1798, a priest in the City
Barbara A. Langhenry, Jessica M. Scheller, Christopher J. Caso, Law-
rence Garcia, P. Daniel Christ, David S. Williamson, Todd K. Pounds,
Robert E. Hornik, Jr., Ronald C. Lewis, Charles W. Swanson, Michael N.
Feuer, Kathleen A. Kenealy, Scott Marcus, Blithe Smith Bock, Roger J.
Desidero, Kathleen E. Gill, Sean P. Kilkenny, Mark E. Barber, Lyndsey
M. Olson, Dennis J. Herrera, James R. Williams, Peter S. Holmes, Kath-
ryn Emmett, Edward M. Pikula, John Morelli, Betsy Cavendish, Michael
Jenkins, Kimberly Rothenburg, Timothy V. Ramis, Jonathan B. Miller,
and John Daniel Reaves; for the Lutheran Child and Family Services of
Ill. by Joseph R. Palmore; for Members of Congress by Peter T. Barbur;
for the National League of Cities et al. by John J. Korzen and Lisa Soro-
nen; for the National LGBT Bar Association et al. by San ford Jay Rosen
and Michael S. Nunez; for the New York State Bar Association by Scott
M. Karson, Christopher R. Riano, John P. Drohan III, and Ryan Thore-
son; for Organizations Servicing LGBTQ Youth by Jennifer C. Pizer; for
the President of the House of Deputies of the Episcopal Church et al. by
Jeffrey S. Trachtman, Norman C. Simon, Tobias B. Jacoby, and Jason M.
Moff; for Prospective Foster Parents Subjected to Religiously Motivated
Discrimination by Child-Placement Agencies by Richard B. Katskee and
Kenneth D. Upton, Jr.; for Republican Legislators et al. by James Kim,
Gregory Fosheim, and Lisa Linsky; for Scholars of the Constitutional
Rights and Interests of Children by Catherine E. Smith, Lauren Fontana,
and Angela Onwuachi-Willig; for Scholars Who Study the LGB Popula-
tion by James E. Tysse and Pratik A. Shah; for Services and Advocacy
for GLBT Elders et al. by Lauren S. Kuley; for Voice For Adoption et al.
by Paul R. Q. Wol fson, Elizabeth L. Mitchell, and Alan Schoen feld; for
Lee C. Bollinger et al. by Jonathan L. Marcus and Paul M. Kerlin; for
Alan Brownstein et al. by Carmine D. Boccuzzi, Jr.; for Miguel H. Díaz
et al. by Leslie C. Griffn and Marci A. Hamilton; for Ira C. Lupu et al.
by David S. Flugman, Faith E. Gay, and Caitlin J. Halligan; for Law-
rence G. Sager by Charles A. Rothfeld and Lawrence G. Sager, pro se; and
for 27 Lay Roman Catholics by James K. Riley.
Briefs of amici curiae were fled for the Americans for Prosperity Foun-
dation by Cynthia Fleming Crawford and Casey Mattox; for the Center
for Constitutional Jurisprudence by R. Shawn Gunnarson, John C. East-

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as: 593 U. S. 522 (2021)
529
Opinion of the Court
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 Children's Bureau to
place children in foster homes. Petitioner CSS continues
that mission today.
The Philadelphia foster care system depends on coopera-
tion between the City and private foster agencies like CSS.
When children cannot remain in their homes, the City's De-
partment 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 cer-
man, and Anthony T. Caso; for Concerned Women for America et al. by
Frederick W. Claybrook, Jr., Steven W. Fitschen, James A. Davids, and
David A. Bruce; for Fifteen Pennsylvania State Senators by Randall L.
Wenger and Jeremy L. Samek; for the Foundation for Moral Law by John
A. Eidsmoe; for Indian Law Professors by Jerome C. Roth; for Legal
Scholars in Support of Equality by Kyle C. Velte, David B. Cruz, and
Clifford S. Davidson; for the National Association of Evangelicals by Tim-
othy Belz and Carl H. Esbeck; for the National Women's Law Center et al.
by Evan Wol fson, Leah R. Bruno, Fatima Goss Graves, Emily Martin,
Gretchen Borchelt, Sunu P. Chandy, and Michelle Banker; for the Offce
of the Cook County Public Guardian by Charles P. Golbert, Kass A. Plain,
and Alpa Jayanti Patel; for the Robertson Center for Constitutional Law
by Mark D. Martin, Bradley J. Lingo, and Kenneth W. Starr; for the
United States Conference of Catholic Bishops et al. by Eric N. Kniffn;
for Galen Black by Kelly J. Shackel ford, Hiram S. Sasser III, Michael D.
Berry, and Stephanie N. Taub; for Archbishop Jerome E. Listecki et al.
by Richard M. Esenberg; for Richard C. Loeb by Cynthia Cook Robertson;
for Eugene Volokh by Eugene Volokh, pro se; and for 32 Businesses et al.
by Patricia B. Palacios.
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TON v. PHILADELPHIA
Opinion of the Court
tify 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 consid-
ers statutory criteria including the family's “ability to pro-
vide 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 certifed
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 certifcation of prospective foster families to be an en-
dorsement 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 sought
certifcation 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 in-
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531
Opinion of the Court
vestigation, saying that the City had “laws in place to pro-
tec
t 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 affliated with the agency
fled suit against the City, the Department, and the Commis-
sion. The Support Center for Child Advocates and Philadel-
phia 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 referring
children to CSS without requiring the agency to certify
same-sex couples.
The District Court denied preliminary relief. It con-
cluded 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
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532 FUL
TON v. PHILADELPHIA
Opinion of the Court
court also determined that the free speech claims were un-
l
ikely to succeed because CSS performed certifcations as
part of a government program. Id., at 695–700.
The Court of Appeals for the Third Circuit affrmed. Be-
cause the contract between the parties had expired, the
court focused on whether the City could insist on the inclu-
sion 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 re-
jected 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 chal-
lenged the Third Circuit's determination that the City's ac-
tions 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, appli-
cable to the States under the Fourteenth Amendment, pro-
vides that “Congress shall make no law . . . prohibiting the
free exercise” of religion. As an initial matter, it is plain
that the City's actions have burdened CSS's religious exer-
cise by putting it to the choice of curtailing its mission or
approving relationships inconsistent with its beliefs. The
City disagrees. In its view, certifcation refects only that
foster parents satisfy the statutory criteria, not that the
agency endorses their relationships. But CSS believes
that certifcation is tantamount to endorsement. And “reli-
gious 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 de-
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as: 593 U. S. 522 (2021)
533
Opinion of the Court
cide 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 Exer-
cise Clause so long as they are neutral and generally applica-
ble. 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. 545 (opinion of Alito, J.); post, p. 618
(opinion of Gorsuch, J.). But we need not revisit that deci-
sion 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 gener-
ally 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 Cake-
shop, Ltd. v. Colorado Civil Rights Comm'n, 584 U. S.
617, 638–639 (2018); 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
fnd 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
conduct by providing “ `a mechanism for individualized ex-
emptions.' ” 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
fred because she would not work on Saturdays. Unable to
fnd a job that would allow her to keep the Sabbath as her
faith required, she applied for unemployment benefts. 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
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401 (internal quotation marks omitted). We held that the
denia
l infringed her free exercise rights and could be justi-
fed only by a compelling interest. Id., at 406.
Smith later explained that the unemployment benefts law
in Sherbert was not generally applicable because the “good
cause” standard permitted the government to grant exemp-
tions based on the circumstances underlying each applica-
tion. 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 reli-
gious conduct while permitting secular conduct that under-
mines 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 sacrifce, 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
not regulate hunters' disposal of their kills or improper gar-
bage 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 sec-
tion 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
specifes in pertinent part:
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“Rejection of Referral. Provider shall not reject a
child or family including, but not limited to, . . . prospec-
tive 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,”
defned 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 in-
corporates 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 in-
tention 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 frst argue that governments
should enjoy greater leeway under the Free Exercise Clause
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. Um-
behr, 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.
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These considerations cannot save the City here. As Phil-
adelph
ia rightly acknowledges, “principles of neutrality and
general applicability still constrain the government in its ca-
pacity 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 ap-
plicable 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 neu-
tral and generally applicable in the contracting context. We
fnd no need to resolve that narrow issue in this case. No
matter the level of deference we extend to the City, the inclu-
sion of a formal system of entirely discretionary exceptions
in section 3.21 renders the contractual non-discrimination re-
quirement 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 same-
sex couples after all. Contrast App. to Pet. for Cert. 167a–
168a with Brief for City Respondents 35–36. Instead, the
City says that section 3.21 addresses only “an agency's right
to refuse `referrals' to place a child with a certifed foster
family.” Brief for City Respondents 36. We think the City
had it right the frst time. Although the section is titled
“Rejection of Referral,” the text sweeps more broadly, for-
bidding the rejection of “prospective foster . . . parents” for
“Services,” without limitation. Supp. App. to Brief for City
Respondents 16. The City maintains that certifcation 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 head-
ing should never be allowed to override the plain words of a
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Opinion of the Court
text.”). Moreover, the City adopted the current version of
sec
tion 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, confrming our under-
standing of the text of the provision.
The City and intervenor-respondents add that, notwith-
standing the system of exceptions in section 3.21, a separate
provision in the contract independently prohibits discrimina-
tion in the certifcation of foster parents. That provision,
section 15.1, bars discrimination on the basis of sexual orien-
tation, 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 inter-
preted 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.
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 mecha-
nism 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 solic-
itude, Smith, 494 U. S., at 884—here, at the Commissioner's
“sole discretion.”
The concurrence objects that no party raised these argu-
ments in this Court. Post, at 623 (opinion of Gorsuch, J.).
But CSS, supported by the United States, contended that

538 FUL
TON v. PHILADELPHIA
Opinion of the Court
the City's “made-for-CSS Section 3.21 permits discretionary
`excepti
on[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 alter-
ations in original); see also Brief for Petitioners 26–27 (sec-
tion 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 621–623, but we
fnd 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 orienta-
tion, . . . disability, marital status, familial status,” or several
other protected categories. Phila. Code § 9–1106(1) (2016).
The City contends that foster care agencies are public ac-
commodations 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 Peti-
tioners 13. In any event, CSS adds, the ordinance cannot
qualify as generally applicable because the City allows ex-
ceptions 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 frst
place. We conclude that it does not because foster care
agencies do not act as public accommodations in performing
certifcations.
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The ordinance defnes a public accommodation in relevant
par
t 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, priv-
ileges, advantages or accommodations are extended, of-
fered, sold, or otherwise made available to the public.” § 9–
1102(1)(w). Cer tificati on 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) (“capa-
ble 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 defnes 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
feshes out that defnition with examples like hotels, restau-
rants, drug stores, swimming pools, barbershops, and public
conveyances. Ibid. The “common theme” is that a public
accommodation must “provide a beneft to the general public
allowing individual members of the general public to avail
themselves of that beneft if they so desire.” Blizzard v.
Floyd, 149 Pa. Commw. 503, 506, 613 A. 2d 619, 621 (1992).
Certifcation as a foster parent, by contrast, is not readily
accessible to the public. It involves a customized and selec-
tive 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 back-
ground checks and a medical exam. Foster agencies are re-
quired to conduct an intensive home study during which they
evaluate, among other things, applicants' “mental and emo-
tional adjustment,” “community ties with family, friends and
neighbors,” and “[e]xisting family relationships, attitudes
and expectations regarding the applicant's own children and

540 FUL
TON v. PHILADELPHIA
Opinion of the Court
parent/child relationships.” 55 Pa. Code § 3700.64. Such
i
nquiries would raise eyebrows at the local bus station. And
agencies understandably approach this sensitive process
from different angles. As the City itself explains to pro-
spective foster parents, “[e]ach agency has slightly different
requirements, specialties, and training programs.” App. to
Pet. for Cert. 197a. All of this confrms that the one-size-
fts-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 qualifes as a public accommodation
under the ordinance. The concurrence adopts the City's ar-
gument, seeing no incongruity in deeming a private religious
foster agency a public accommodation. See post, at 619–620
(opinion of Gorsuch, J.). We respectfully disagree with the
view of the City and the concurrence. Although “we ordi-
narily 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 inap-
propriate here. The District Court did not take into account
the uniquely selective nature of the certifcation 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 con-
stitute a `public accommodation' under the City's Fair Prac-
tices Ordinance, and therefore it is not bound by that ordi-
nance.” 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
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541
Opinion of the Court
question.” Post, at 618 (opinion of Gorsuch, J.). But the
Cour
t 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 man-
ner 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 chil-
dren. The City states these objectives at a high level of
generality, but the First Amendment demands a more pre-
cise analysis. See Gonzales v. O Centro Espírita Benef-
cente União do Vegetal, 546 U. S. 418, 430–432 (2006) (dis-
cussing 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 specifc exemptions to particu-
lar religious claimants.” O Centro, 546 U. S., at 431. The
question, then, is not whether the City has a compelling in-
terest 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
insuffcient. Maximizing the number of foster families and
minimizing liability are important goals, but the City fails to
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show that granting CSS an exception will put those goals at
r
isk. 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 certifcation practices.
Such speculation is insuffcient 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 631. 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 under-
mines the City's contention that its non-discrimination poli-
cies can brook no departures. See 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 Re-
spondents 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 Phila-
delphia 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.
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Barrett, J., concurring
In view of our conclusion that the actions of the City vio-
late
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.
Justice Barrett, with whom Justice Kavanaugh joins,
and with whom Justice Breyer joins as to all but the frst
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 bur-
dens 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 fnd the historical record more silent
than supportive on the question whether the founding gener-
ation understood the First Amendment to require religious
exemptions from generally applicable laws in at least some
circumstances. In my view, the textual and structural argu-
ments against Smith are more compelling. As a matter of
text and structure, it is diffcult 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 assump-
tion seems to be that strict scrutiny would apply whenever
a neutral and generally applicable law burdens religious ex-
ercise. But I am skeptical about swapping Smith's categori-
cal antidiscrimination approach for an equally categorical
strict scrutiny regime, particularly when this Court's resolu-
tion of conficts between generally applicable laws and other
First Amendment rights—like speech and assembly—has
been much more nuanced. There would be a number of is-
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TON v. PHILADELPHIA
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sues 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 scru-
tiny 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 “sub-
stantial”). 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 st andard appl ies 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 offcials
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
offcial). As the Court's opinion today explains, the gov-
ernment contract at issue provides for individualized ex-
emptions from its nondiscrimination rule, thus triggering
strict scrutiny. And all nine Justices agree that the City
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 opin-
ion in full.
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Alito, J., concurring in judgment
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 gov-
erning 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 30 years of precedent and held that the First
Amendment's Free Exercise Clause tolerates any rule that
categorically prohibits or commands specifed 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. Sup-
pose that the Volstead Act, which implemented the Prohibi-
tion Amendment, had not contained an exception for sacra-
mental wine. See § 3, 41 Stat. 308–309. The Act would
have been consistent with Smith even though it 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 frst been rendered
unconscious.
2
That law would be fne under Smith even
though it would outlaw kosher and halal slaughter.
3
Or
suppose that a jurisdiction in this country, following the
1
Code of Canon Law, Canon § 924 (Eng. transl. 1998).
2
See 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.
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TON v. PHILADELPHIA
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recommendations of medical associations in Europe, banned
the
circumcision of infants.
4
A San Francisco ballot initia-
tive in 2010 proposed just that.
5
A categorical ban would
be allowed by Smith even though it would prohibit an an-
cient and important Jewish and Muslim practice.
6
Or sup-
pose that this Court or some other court enforced a rigid
rule prohibiting attorneys from wearing any 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 ex-
amples could be added.
We may hope that legislators and others with rule-making
authority will not go as far as Smith allows, but the present
case shows that the dangers posed by Smith are not hypo-
4
See 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 benefts, causes postoperative pain, can have serious
long-term consequences, constitutes a violation of the United Nations'
Declaration of the Rights of the Child, and conficts with the Hippocratic
oath”).
5
See 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).
6
See 4 Encyclopaedia Judaica 730 (2d ed. 2007) (“Jewish circumcision
originated, according to the biblical account, with Abraham”); The Shen-
gold Jewish Encyclopedia 62 (3d ed. 2003) (“[Circumcision] has become a
basic law among Jews. In times of persecution, Jews risked their lives to
fulfll the commandment”); B. Abramowitz, The Law of Israel: A Compila-
tion 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 re-
quired of male converts”); H. Gibb & J. Kramers, Shorter Encyclopaedia
of Islam 254 (1953).
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Alito, J., concurring in judgment
thetical. The city of Philadelphia (City) has issued an ulti-
matum
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 frst
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 out by reli-
gious orders.
9
In the New World, religious groups continued to take the
lead. The frst 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 frst two orphan-
ages in what became the United States at the founding were
established in Georgia by Lutherans and by Rev. George
Whitefeld, a leader in the “First Great Awakening.”
11
In
the late 18th and early 19th centuries, Protestants and Cath-
olics established orphanages in major cities. One of the frst
7
See Holy Bible, Deuteronomy 10:18, 16:11, 26:12–13; James 1:27.
8
See A. Crislip, From Monastery to Hospital: Christian Monasticism &
the Transformation of Health Care in Late Antiquity 104, 111 (2005) (de-
scribing 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)).
9
Ransel, Orphans and Foundlings, in 3 Encyclopedia of European Social
History 497, 498 (2001).
10
T. 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).

548 FUL
TON v. PHILADELPHIA
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orphanages in Philadelphia was founded by a Catholic priest
i
n 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 feld was quite limited.
As one of Philadelphia's amici puts it, “[i]nto the early twen-
tieth 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
infux of federal money
16
spurred States and local govern-
ments to take a more active role, and today many govern-
ments 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, Cath-
olic foster care agencies in Philadelphia and other cities have
a long record of fnding 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 fnding homes for children who
are hard to place, including older children and those with
special needs.
17
12
2 Encyclopedia 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.
15
Brief for Annie E. Casey Foundation et al. as Amici Curiae 4–5.
16
See Social Security Act, § 521, 49 Stat. 627, 633; Social Security Act
Amendments of 1961, 75 Stat. 131.
17
See United States Conference of Catholic Bishops, Discrimination
Against Catholic Adoption Services (2018), https://www.usccb.org/ issues-
and-action/relig ious-liberty/upload / Discrimination-against-Catholic-
adoption-services.pdf.
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Recently, however, the City has barred Catholic Social
Serv
ices (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 refects, no same-sex cou-
ple 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 evi-
dence 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 newspa-
per publicized CSS's policy, the City barred CSS from contin-
uing its foster care work. Remarkably, the City took this
step even though it threatens the welfare of children await-
ing 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
18
See Brief for Petitioners 11–12 (citing Wax-Thibodeaux, “We Are Just
Destroying These Kids”: The Foster Children Growing Up Inside
Detenti on Centers, Wash i ng ton Post (Dec. 30, 2019), https://www
.washingtonpost.com/national/we-are-just-destroying-these-kids-the-foster
-children-growing-up-inside-detention-centers/2019/12/30/97f65f 3a-eaa2-
11e9-9c6d-436a0df4f 31d_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-philly-child-welfare
-adoptions-20180308.html; see also Haskins, Kohomban, & Rodriguez,
Keeping Up With the Caseload: How To Recruit and Retain Foster Par-
ents, The Brookings Institution (Apr. 24, 2019), https://www.brookings
.edu/ blog/upfront/2019/04/24/keeping-up-with-the-case-load-how-to-recruit
-and-retain-foster-parents/ (explaining that “[t]he number of children in
foster care ha[d] risen for the ffth consecutive year” to nearly 443,000 in
2017 and noting that “between 30 to 50 percent of foster families step
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major sources of foster homes. And that's not all. The
City
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 lov-
ing 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 offcials is to force the Philadelphia Archdiocese to
change its position on marriage. Among other things, they
point to statements by a City offcial deriding the Archdio-
cese's position as out of step with Pope Francis's teaching
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 Offces Is “Rock Bot-
tom,” Texas Tribune (Apr. 20, 2017), https://www.texastribune.org/2017/04/
20/texas-foster-care-placement-crisis/ (describing Texas's shortage of
placement options, which resulted in children sleeping in offce buildings
where “no one is likely to stop them” if they decide to run away); Associ-
ated Press, Indiana Agencies Desperate To Find Foster Parents With
Children Entering System at All-Time High, Fox 59 (Mar. 7, 2017), https://
fox59.com / news/ indiana-agencies-desperate - to - fnd - foster - parents - with-
children-entering-system-at-all-time-high/ (noting that nearly 1,000 chil-
dren in Indiana are in need of care and that, in the span of one month, the
State's largest not-for-proft child services agency was able to place 3 chil-
dren out of 150 to 200 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-crisis-due-to-shortage-of-foster-homes (reporting on a county in
Georgia with 116 children in need of care but only 14 foster families).
19
See 922 F. 3d 140, 150 (CA3 2019); 320 F. Supp. 3d 661, 673 (ED Pa.
2018); App. to Pet. for Cert. 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).
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and 21st century moral views.
20
But
whether or not this is
the City's real objective, there can be no doubt that Philadel-
phia'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. Smith should
be revisited.” We should confront that question.
Regrettably, the Court declines to do so. Instead, it re-
verses based on what appears to be a superfuous (and likely
to be short-lived) feature of the City's standard annual con-
tract with foster care agencies. Smith's holding about cate-
gorical rules does not apply if a rule permits individual-
ized exemptions, 494 U. S., at 884, and the majority seizes on
the presence in the City's standard contract of language
giving a City offcial the power to grant exemptions. Ante,
at 534–535. 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 537, 543.
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-
20
Id., at 182, 365–366 (describing Department of Human Services com-
missioner'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”).
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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; the lower
courts, bound by Smith, will reject that argument; and CSS
will fle 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 dis-
crimination on the basis of sexual orientation.
22
And some
21
The Court's decision also depends on its own contested interpretation
of local and state law. See post, at 619–624 (Gorsuch, J., concurring in
judgment). Instead of addressing whether the City's Fair Practices Ordi-
nance is generally applicable, the Court concludes that the ordinance does
not apply to CSS because CSS's foster care certifcation services do not con-
stitute “public accommodations” under the FPO. Ante, at 538. Of cour-
se, 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 Dan forth v. Minnesota, 552 U. S. 264, 291 (2008)
(Roberts, C. J., dissenting) (“State courts are the fnal arbiters of their
own state law”). Should the Pennsylvania courts interpret the FPO dif-
ferently, they would effectively abrogate the Court's decision in this case.
22
See 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) (prohibit-
ing, on the basis of sexual orientation, the direct or indirect denial of
“the full and equal enjoyment of the goods, services, facilities, privi-
leges, advantages, and accommodations of any place of public accommoda-
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jurisdictions have adopted anti-discrimination rules that ex-
pressly
target adoption services.
23
Today's decision 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 Phila-
delphia contractual provision on which the majority's deci-
sion hangs. The decision will be even less signifcant in all
the other important religious liberty cases that are bub-
bling up.
We should reconsider Smith without further delay. The
correct interpretation of the Free Exercise Clause is a ques-
tion 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 schol-
arship on the original meaning of the Free Exercise Clause.
tions,” defned 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,” defned by a list of non-exclusive
examples).
23
See, 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, benefts, 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) (pro-
viding that foster parents are “[t]o not be subject to discrimination 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 Fami-
lies] services shall, on the ground of . . . sexual orientation, . . . be excluded
from participation in, be denied the benefts of, or otherwise be subjected
to discrimination in connection with, any service, program, or activity ad-
ministered or provided by the Department”).
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Contrary to what many initially expected, Smith has not pro-
v
ided 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 “an-
archy.” 494 U. S., at 888.
When Smith reinterpreted the Free Exercise Clause, four
Justices—Brennan, Marshall, Blackmun, and O'Connor—reg-
istered 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 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 fve 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); City of Boerne v. Flo-
res, 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 reli-
gious liberty. In enacting the Religious Freedom Restora-
tion Act of 1993, 107 Stat. 1488 (codifed at 42 U. S. C.
§ 2000bb et seq.), and the Religious Land Use and Institution-
alized Persons Act of 2000, 114 Stat. 803 (codifed at 42
U. S. C. § 2000cc et seq.), Congress tried to restore the consti-
tutional rule in place before Smith was handed down.
Those laws, however, do not apply to most state action, and
they leave huge gaps.
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It is high time for us to take a fresh look at what the Free
E
xercise Clause demands.
II
A
To fully appreciate what the Court did in Smith, it is nec-
essary to recall the substantial body of precedent that it dis-
placed. 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
nearly three decades when Smith was decided. In that ear-
lier case, Adell Sherbert, a Seventh-day Adventist, was fred
because she refused to work on Saturday, her Sabbath Day.
374 U. S., at 399. Unable to fnd other employment that did
not require Saturday work, she applied for unemployment
compensation but was rejected because state law disqualifed
claimants who “ failed, without good cause, . . . to accept avail-
able suitable work when offered. ” Id., at 399–401, and n. 3
(internal quotation marks omitted). The State Supreme
Court held that this denial of benefts did not violate Sher-
bert'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 conficts,
but as the Sherbert opinion accurately recounted, where
claims for religious exemptions had been rejected, “[t]he con-
duct or actions [in question] invariably posed some substan-
tial 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 571–578.)
After noting these earlier decisions, the Court turned to
the case at hand and concluded that the denial of benefts
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imposed a substantial burden on Sherbert's free exercise of
rel
igion. 374 U. S., at 404. It “force[d] her to choose be-
tween following the precepts of her religion and forfeiting
benefts, 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 “justifed by a `compelling
state interest.' ” Id., at 403, 406. The State argued that its
law was needed to prevent “the fling of fraudulent claims
by unscrupulous claimants feigning religious objections,” but
Justice Brennan's opinion found this justifcation insuffcient
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 nar-
rowly tailored to serve a compelling interest—was the gov-
erning rule for the next 27 years. Applying that test, the
Court sometimes vindicated free-exercise claims. In Wis-
consin 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 exemp-
tion, 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
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Alito, J., concurring in judgment
its application, nonetheless offend the constitutional re-
qu
irement for governmental neutrality if it unduly burdens
the free exercise of religion”; insisting that Amish children
abide by the compulsory attendance requirement was uncon-
stitutional even though it “applie[d] uniformly to all citi-
zens of the State and d[id] not, on its face, discriminate
against religions or a particular religion, [and was] motivated
by legitimate secular concerns.” 406 U. S., at 220 (empha-
sis added).
Other decisions also accepted free-exercise claims under
the Sherbert test. In Thomas v. Review Bd. of Ind. Em-
ployment Security Div., 450 U. S. 707, 710, 720 (1981), the
Court concluded that a State could not withhold unemploy-
ment benefts from a Jehovah's Witness who quit his job be-
cause 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 re-
quirement for governmental neutrality if it unduly burdens
the free exercise of religion.' ” Id., at 717 (quoting Yoder,
406 U. S., at 220).
Subsequently, i n Hobb i e v. Unempl o ymen t Appea l s
Comm'n of Fla., 480 U. S. 136, 141 (1987), the Court found
that a state rule that was “ `neutral and uniform in its appli-
cation' ” 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 fscal
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 confict was held to be “strictly justifed by
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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) (prison); Gold-
man 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 benefts due to conduct man-
dated by her religion (refraining from work on Saturday),
Alfred Smith and Galen Black were denied unemployment
benefts 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 benefts
violated Smith's and Black's free-exercise rights, and this
Court granted review.
24
24
This Court actually granted review twice: once, after the state court
frst held that the denial of benefts 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 Em-
ployment 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 reaffrmed
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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The State defended the denial of benefts under the Sher-
be
rt framework. It argued that it had a compelling interest
in combating the use of dangerous drugs and that accommo-
dating their use for religious purposes would upset its en-
forcement 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 Sher-
bert 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 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., dissent-
ing). And the Smith majority wanted no part of that ques-
tion. Instead, without briefng 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 con-
duct, the Sherbert test was held to apply to only two narrow
categories of cases: (1) those involving the award of unem-
ployment benefts 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 offcials discretion to grant individualized exemp-
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To clear the way for this new regime, the majority was
w
illing to take liberties. Paying little attention to the
terms of the Free Exercise Clause, it was satisfed 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 pre-
viously suggested. Sherbert, Thomas, and Hobbie were
placed in a special category because they concerned the
tions.” Ante, at 544 (concurring opinion). If there really were such a
“longstanding [pre-Smith] tenet,” one would expect to fnd cases stating
that rule, but Justice Barrett does not cite even one such case. In-
stead, she claims to fnd 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 544. 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 gen-
eral eligibility requirement for unemployment benefts. 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 that its analy-
sis 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 offcial found in advance that the cause was authentically
religious. See 310 U. S., at 300–302. The Court held that the Free Exer-
cise Clause prohibited the State from conditioning permission to solicit
funds on an administrative fnding 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 306–307
(emphasis added). And the Court said not one word about “strict scru-
tiny,” 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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award of unemployment compensation, Smith, 494 U. S., at
883,
and Yoder was distinguished on the ground that it in-
volved 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 eas-
ily be viewed as falling into both of these special categories.
After all, it involved claims for unemployment benefts, and
members of the Native American Church who ingest peyote
as part of a religious ceremony are surely engaging in ex-
pressive conduct that falls within the scope of the Free
Speech Clause. See, e. g., Texas v. Johnson, 491 U. S. 397,
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 pros-
pect of constitutionally required religious exemptions from
civic obligations of almost every conceivable kind.” 494
U. S., at 888. The majority recognized that its new inter-
pretation 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 reinter-
pretation of the Free Exercise Clause. Justice O'Connor
wrote that this new reading “dramatically depart[ed] from
well-settled First Amendment jurisprudence” and was “in-
compatible with our Nation's fundamental commitment to in-
dividual religious liberty.” 494 U. S., at 891 (opinion con-
curring in judgment). Justices Brennan, Marshall, and
Blackmun protested that the majority had “mischaracter-
iz[ed]” and “discard[ed]” the Court's free-exercise jurispru-
dence on its way to “perfunctorily dismiss[ing]” the “settled
and inviolate principle” that state laws burdening religious
freedom may stand only if “justifed by a compelling interest
that cannot be served by less restrictive means.” Id., at
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907–908 (Blackmun, J., joined by Brennan and Marshall, JJ.,
dissenti
ng).
Smith's impact was quickly felt, and Congress was inun-
dated with reports of the decision's consequences.
26
In re-
sponse, it attempted to restore the Sherbert test. In the
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); Re-
marks 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 Per-
sons Act (RLUIPA) under its spending power and its power
26
A 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 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 com-
mercial and industrial uses, id., at 9684 (remarks of Rep. Schumer). In
just the frst 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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to regulate interstate commerce. See 114 Stat. 803. Intro-
duced
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 Con-
gress 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 Per-
sons Act of 2000, 36 Weekly Comp. of Pres. Doc. 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) (starting with the text of Art.
II, § 1, before considering historical practice); Knick v. Town-
ship of Scott, 588 U. S. –––, ––– (2019) (beginning analysis
with the text of the Takings Clause); Gamble v. United
States, 587 U. S. –––, ––– – ––– (2019) (starting with the text
of the Fifth Amendment before turning to history and prece-
dent); City of Boerne, 521 U. S., at 519 (“In assessing the
breadth of § 5's enforcement power, we begin with its text”).
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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 “permissi-
ble” 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 justifed—and is especially sur-
prising since it clashes so sharply with the way in which
Smith's author, Justice Scalia, generally treated the text of
the Constitution (and, indeed, with his entire theory of legal
interpretation). As he put it, “What I look for in the Consti-
tution 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 Environ-
mental Protection, 560 U. S. 702, 722 (2010) (plurality opin-
ion 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 Colum-
bia 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 under-
stood 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 Amend-
ment's key terms. It does not simply ask whether its inter-
pretation of the text is “permissible.” Smith, 494 U. S.,
at 878.
B
Following the sound approach that the Court took in Hel-
ler, we should begin by considering the “normal and
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ordinary” meaning of the text of the Free Exercise Clause:
“Congress
shall make no law . . . prohibiting the free
exercise [of rel ig i on]. ” Most of these ter ms and
phrases—“Congress,”
27
“shall make,” “no law,”
28
and “re-
27
Although 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 ap-
plicable 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. 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 enforc-
ing 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 en force any law which shall abridge the privileges or im-
munities of citizens of the United States” (emphasis added)).
28
The 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. Fraud-
ulent 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

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ligion”
29
—
do not require discussion for present purposes,
and we can therefore focus on what remains: the term “pro-
hibiting ” and the phrase “the free exercise of religion.”
Those words had essentially the same meaning in 1791 as
they do today. “To prohibit” meant either “[t]o forbid” or
“to hinder.” 2 S. Johnson, A Dictionary of the English Lan-
guage (1755) (Johnson (1755)).
30
The term “exercise” had
both a broad primary defnition (“[p]ractice” or “outward
performance”) and a narrower secondary one (an “[a]ct of
divine worship whether publick or private”). 1 id.
31
(The
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 defned 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 in fra, at 570–578. 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 sacrifce.
29
Whatever the outer boundaries of the term “religion” as used in the
First Amendment, there can be no doubt that CSS's contested policy rep-
resents an exercise of “religion.”
30
See 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”).
31
See 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

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Court long ago declined to give the First Amendment's ref-
erence
to “exercise” this narrow reading. See, e. g., Cant-
well v. Connecticut, 310 U. S. 296, 303–304 (1940).) And
“free,” in the sense relevant here, meant “unrestrained.”
1 Johnson (1755).
32
If we put these defnitions 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 anti-
discrimination provision: It means that the Federal Govern-
ment 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 specifc group of people (those
who wish to engage in the “exercise of religion”) the right
(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”).
32
See also Dyche & Pardon (“at liberty, that can do or refuse at his
pleasure, that is under no restraint”); 1 Ash (“Having liberty,” “unre-
strained,” ”exempt”); 1 Webster (“1. Being at liberty; not being under
necessity or restraint, physical or moral . . . 5. Unconstrained; unre-
strained; not under compulsion or control”); 1 Boag 567–568 (“Being at
liberty; not being under necessity or restraint, physical or moral . . . Un-
constrained; unrestrained, not under compulsion or control. Permitted;
allowed; open; not appropriated. Not obstructed”).
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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 specifed 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 speci-
fed group of people (parties in most civil “Suits at common
law”) “the right of trial by jury.” Would there be any ques-
tion that a law abolishing juries in all civil cases would vio-
late 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 com-
plete 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 re-
gardless 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 conficts
with the ordinary meaning of the First Amendment's terms.
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C
Is
there any way to bring about a reconciliation? The
short answer is “no.” Survey all the briefs fled in support
of respondents (they total more than 40) and three decades
of law review articles, and what will you fnd? Philadel-
phia'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 ft with the constitutional text, Professor
McConnell came up with this argument—but then rejected
it. McConnell, Free Exercise Revisionism 1115–1116.
The argument goes as follows: Even if a law prohibits con-
duct that constitutes an essential religious practice, it cannot
be said to “prohibit” the free exercise of religion unless that
was the lawmakers' specifc 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 forbid-
ding the slaughter of a conscious animal would not “prohibit”
kosher and halal slaughterhouses? A rule categorically ban-
ning 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 forgone this argument.
D
Not only is it diffcult to square Smith's interpretation with
the terms of the Free Exercise Clause, the absence of any lan-
guage referring to equal treatment is striking. If equal treat-
ment was the objective, why didn't Congress say that? And
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since it would have been simple to cast the Free Exercise
Clause
in equal-treatment terms, why would the state legisla-
tors who voted for ratifcation 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, pro-
vides 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
State, without its Consent, shall be deprived of its equal Suf-
frage 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 lan-
guage 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 disre-
gard the possibility that some of the terms in the Free Exer-
33
See, 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 enti-
tled to protection in their religious liberty” (emphasis added)); N. Y.
Const., Art. XXXVIII (1777), in id., at 26 (“[T]he free Exercise and Enjoy-
ment of religious Profession and Worship, without Discrimination or
Preference, shall forever hereafter be allowed within this State to all Man-
kind” (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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cise 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 defned 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
of adoption to have defned 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 ratifed? 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 par-
ties' 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 examine
34
See, e. g., McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990) (McConnell, Ori-
gins); 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 Ex-
emption); Hamburger, More Is Less, 90 Va. L. Rev. 835 (2004) (Hamburger,
More Is Less); Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal
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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 ap-
pears to be the frst “free exercise” provision was adopted in
1649. Prompted by Lord Baltimore,
35
the Maryland Assem-
bly 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 rec-
ognized the right to free exercise,
37
and by 1789, every State
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 Exer-
cise Clause: Religious Exemptions Under the Fourteenth Amendment,
88 Nw. U. L. Rev. 1106 (1994); Lombardi, Nineteenth-Century Free
Exercise Jurisprudence and the Challenge of 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
Signifcance 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 inter-
fering with the “free exercise” of Christians, particularly Roman Catholics).
36
Act Concerning Religion (1649), in Cogan 17; see also McConnell, Ori-
gins 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 Judg-
ments and Consciences, in Matters of Religion” and declaring that “no
Person . . . shall be in any way molested, punished, disquieted, or called

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573
Alito, J., concurring in judgment
except Connecticut had a constitutional provision protecting
rel
igious liberty. McConnell, Origins 1455. In fact, the
Free Exercise Clause had more analogs in State Constitu-
tions than any other individual right. See Calabresi,
in Question, for any Differences in Opinion, or Practice in Matters of reli-
gious Concernments, who do not actually disturb the Civil Peace”); Char-
ter 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 other act
or thing, contrary to their religious persuasion”); Concession and Agree-
ment 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 New-Jersey, 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 acknowl-
edge 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”); Char-
ter of Privileges Granted by William Penn (1701), in id., at 31–32 (declar-
ing 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”).

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Agudo, & Dore, State Bills of Rights in 1787 and 1791: What
Indiv
idual Rights Are Really Deeply Rooted in American
History and Tradition? 85 S. Cal. L. Rev. 1451, 1463–1464,
1472–1473 (2012). In all of those State Constitutions, free-
dom of religion enjoyed broad protection, and the right “was
universally said to be an unalienable right.” McConnell,
Origins 1456.
38
38
See in fra, at 576, 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. Declaration 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., Declara-
tion 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 Al-
mighty God according to the dictates of their own consciences and under-
standing: 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 main-
tain 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 senti-
ments 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

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2
W
hat 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 frst British settlements to the adoption of
the Bill of Rights. Many different political fgures, religious
leaders, and others spoke and wrote about religious liberty
and the relationship between the authority of civil govern-
ments and religious bodies. The works of a variety of think-
ers were infuential, 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 concen-
trate 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 unquestion-
ably one of those rights. As noted, it was expressly pro-
tected 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.”
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 of religious Worship”).
39
See 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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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 Declar-
ing 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 Consti-
tution is a good example. It provided that “[a]ll persons
whatever shall have the free exercise of their religion; pro-
vided 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, Mary-
land, 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
40
See 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 Licen-
tiousness and Prophaneness; nor to the Civil Injury, or outward Disturb-
ance of others” (emphasis deleted)).
41
See 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”).
42
New 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”).
43
Del. 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
man disturb the peace, the happiness or safety of society” (emphasis

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The predominance of this model is highlighted by its use
i
n the laws governing the Northwest Territory. In the
Northwest Ordinance of 1787, the Continental Congress pro-
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 per-
son 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 in fringe 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 SU-
PREME 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 senti-
ments; 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 Licentious-
ness, 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,

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vided 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 ter-
ritory.” Art. I (emphasis added). After the ratifcation of
the Constitution, the First Congress used similar language in
the Northwest Ordinance of 1789. See Act of Aug. 7, 1789, 1
Stat. 52 (reaffrming 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 understand-
ing 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 st ate
legislatures—providing broad protection for the free exer-
cise 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 applica-
ble laws to protect public peace and safety. If those laws
are thought to be suffcient to address a particular type of
conduct when engaged in for a secular purpose, why wouldn't
they also be suffcient to address the same type of conduct
when carried out for a religious reason?
Smith's defenders have no good answer. Their chief re-
sponse is that the free-exercise provisions that included
shall, forever hereafter, be allowed within this state to all mankind; pro-
vided that the liberty of conscience thereby declared shall not be so con-
strued as to excuse acts of licentiousness, or justify practices inconsistent
with the peace or safety of this state” (emphasis added)).
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these carveouts were tantamount to the Smith rule because
any
conduct that is generally prohibited or generally re-
quired 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 unnatu-
rally broad interpretation. Samuel Johnson's 1755 diction-
ary defned “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 pub-
44
See also 2 Webster (“1. In a general sense, a state of quiet or tranquil-
ity; 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”).
45
See 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. Exemp-
tion from hurt, injury or loss. . . . 3. Preservation from escape; close cus-
tody . . . . 4. Preservation from hurt”).
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lic “peace” or “safety.” In 1791 (and today), violations of
many
laws do not threaten “war,” “disturbances,” “commo-
tion,” “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 “cleans-
ing of rivers, public streams, ditches and other conduits”;
47
“retaining a man's hired servant before his time is ex-
pired”;
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 hav-
ing 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 assembl-
ing of 12 persons or more; unlawful hunting; anonymous
threats and demands; destruction of public floodgates,
locks, or sluices on a navigable river; public fghting; riots or
unlawful assemblies; “tumultuous” petitioning; forcible entry
or detainer; riding or “going armed” with dangerous or un-
usual weapons; spreading false news to “make discord be-
tween 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 libel
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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“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 of-
fenses that threaten public peace or safety must be stretched
beyond the breaking point to encompass all violations of
any law.
55
54
Some late 18th century and early 19th century dictionaries provided
special defnitions of the term “peace” as used in the law, and these defni-
tions ft 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 112 (1811) (“[P]articularly in law, [`peace'] intends a quiet
behaviour towards the King and his Subjects”); Bailey (defning “peace”
in the “Law Sense” as “quiet and inoffensive Behaviour towards King
and Subject”).
55
Such 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 author-
ity was understood that way. New York's 1777 Constitution demonstrates
the point. As noted above, it protected free exercise unless a person in-
voked that protection to “excuse Acts of Licentiousness, or justify Prac-
tices 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, wel-
fare, 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 com-
monly 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 testi-
mony and fulflled commitments. McConnell, Origins 1467.
Quakers and members of some other religious groups re-
fused 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, Caro-
lina allowed Quakers to enter a pledge rather than swearing
an oath. Ibid. In 1691, New York permitted Quakers to
give testimony after giving an affrmation. Ibid. Massa-
chusetts did the same in 1743. Id., at 1467–1468. In 1734,
New York also allowed Quakers to qualify to vote by making
an affrmation, 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 exemp-
tions. 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 de-
clared that Quakers, Mennonites, and members of some other
religious groups “ought to be allowed to make their solemn
affrmation” instead of an oath. § 36, in Cogan 18. Simi-
larly, the Massachusetts Constitution of 1780 permitted
Quakers holding certain government positions to decline to
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Alito, J., concurring in judgment
take the prescribed oath of offce, allowing affrmations in-
stead.
Pt. II, ch. VI, Art. I, in id., at 22. The Federal Con-
stitution likewise permits federal and state offcials to make
either an “Oath or Affrmation, 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 ex-
ample. 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 mili-
tia 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 reli-
gious 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 sol-
diers,
56
the very survival of the new Nation often seemed in
danger,
57
and the Members of Congress faced bleak personal
56
Mayer, The Continental Army, in A Companion to the American Revo-
lution 309 (J. Greene & J. Pole eds. 2000); R. Wright, The Continental
Army 153–154, 163 (1983).
57
See The Oxford Companion to American Military History 606–608,
611 (J. Chambers ed. 1999).
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prospects if the war was lost.
58
Y
et despite these stakes,
exemptions were granted.
Colonies with established churches also permitted non-
members 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 ex-
emptions 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 ex-
empted those who could prove they were “ `conscientiously' ”
of a “ `different persuasion,' ” regularly attended their own
religious services, and contributed fnancially 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 signifcance of these legislative
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 pro-
58
See Declaration of Independence ¶312 (“[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 Independ-
ence: 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 Declara-
tion 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, confscated, or damaged. M. Novak, On
Two Wings: Humble Faith and Common Sense at the American Founding
157–158 (2002).
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vided those accommodations before the concept of judicial re-
v
iew 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 constitu-
tions 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 insuffcient 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 meas-
ures that target religion, not neutral and generally applica-
ble laws. This argument has many faws.
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 Amer-
ican Church is arrested for ingesting peyote during a reli-
gious ceremony, then he surely is molested `for' or `on ac-
count 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
protect against government actions taken “for” or “on ac-
count 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 exer-
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cise [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 accommoda-
tion,” 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 legisla-
tion imposed only limited restrictions on private conduct,
and this minimized the chances of confict between generally
applicable laws and religious practices. The principal con-
ficts that arose—involving oaths, conscription, and taxes
to support an established church—were largely resolved
by state constitutional provisions and laws granting ex-
emptions. And the religious demographics of the time
decreased the likelihood of conficts. The population was
overwhelmingly Christian and Protestant, the major Protes-
tant 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 con-
ficts between the practices of the members of these denomi-
59
See Barclay, The Historical Origins of Judicial Religious Exemptions,
96 Notre Dame L. Rev. 55, 69–73 (2020); McConnell, Free Exercise Revi-
sionism 1118; Campbell, A New Approach 978, 987; Lombardi, Free Exer-
cise 385; Campbell, Religious Neutrality in the Early Republic, 24 Regent
U. L. Rev. 311, 314–315, n. 20 (2012).
60
W. Newman & P. Halvorson, Atlas of American Religion 18 (2000).
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nations and generally applicable laws that a state legislature
might
have enacted.
Members of minority religions are most likely to encounter
such conficts, and the largest minority group, the Quakers,
who totaled about 10% of religious adherents,
61
had received
exemptions for the practices that conficted with generally
applicable laws. As will later be shown, see infra, at 588–
592, the small number of religious-exemption cases that oc-
curred 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 Reli-
gious 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
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.
61
Ibid.
62
The Covenanters originated in Scotland, where they opposed the Stu-
art kings' right to rule over the Presbyterian Church. See Emery,
Church and State in the Early Republic: The Covenanters' Radical Cri-
tique, 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 subscribe to two foundational docu-
ments—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 488; see also J. McFeeters,
The Covenanters in America: The Voice of Their Testimony on Present
Moral Issues 57 (1892).
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The most infuential early case granting an exemption was
P
eople 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 re-
fusal, the court reasoned, was protected by the state con-
stitutional 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 offcially reported, knowledge of
the decision appears to have spread widely. Four years
later, another New York court implicitly reaffrmed the prin-
ciple 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 sup-
port 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 opin-
ion. Farnandis v. Henderson, 1 Carolina L. J. 202, 213,
214 (1827).
64
In Commonwealth v. Cronin, 2 Va. Cir. 488, 498, 500, 505
(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.
63
Privileged Communications to Clergymen, 1 Cath. Law. 199, 207–209
(1955).
64
See also Walsh 41; Campbell, A New Approach 992, n. 99; Lombardi,
Free Exercise 408, and n. 152.
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On the other side of the ledger, the most prominent oppo-
nent
of exemptions was John Bannister Gibson of the Penn-
sylvania 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, Gib-
son's dissent in Commonwealth v. Lesher, 17 Serg. & Rawle
155 (Pa. 1828), advanced a related argument against deci-
sions 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 Satur-
day. 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 pro-
claimed that a citizen's obligation to the State must always
take precedence over any religious obligation, and he ex-
pressly 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 op-
posed the Constitution on religious grounds, they refused to
engage in activities, such as jury service and voting, that
required an oath to support the Constitution or otherwise
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ment.
65
It
is possible to read the opinion in Willson as em-
bodying something like the Smith rule—or as concluding
that granting the exemption would have opened the food-
gates 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 vil-
lain”). But if Willson is read as rejecting religious exemp-
tions, 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 un-
founded. 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
the latter according to his religion” (emphasis deleted));
Commonwealth v. Wolf, 3 Serg. & Rawle 47, 50, 51 (Pa. 1817)
65
See McFeeters, The Covenanters in America 121–129; id., at 122 (Cov-
enanters “must refuse upon the grounds of honor, conscience, and consist-
ency, to be identifed by oath or ballot with such a political system”); id.,
at 129 (Covenanters “decline to take any responsible part in the adminis-
tration 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 de-
clare this practice inconsistent with their Testimony, and warn Church-
members against serving on juries under the direction of the constituted
courts of law”).
66
See J. 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 “fve-
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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Alito, J., concurring in judgment
(“[T]he Jewish Talmud . . . asserts no such doctrine” and the
objec
tion was made “out of mere caprice”). That reasoning
is contrary to a principle that Smith reaffrmed: “Repeatedly
and in many different contexts, we have warned that courts
must not presume to determine . . . the plausibility of a reli-
gious 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. Common-
wealth, 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 Sab-
bath had never been understood to impose “an imperative
obligation to fll 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,
fned him £10; but the defendant, afterwards, waving the
beneft of his testimony, he was discharged from the fne.”
(Emphasis deleted.) What can be deduced from this cryptic
summary? Was the issue mooted when the defendant
waived the beneft of Phillips's testimony? Who can tell?
In Commonwealth v. Drake, 15 Mass. 161 (1818), the Su-
preme Judicial Court of Massachusetts summarily affrmed
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,” and
that he had confessed “not to the church” but “to his friends

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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 tar-
get religious practice had been used to suppress religious
exercise by slaves. See generally Lash, The Second Adop-
tion 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 provi-
sion, 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
the proposal,
67
others opposed it,
68
and in the end, after add-
ing the words “in person” at the end of the clause, the House
adopted it.
69
The Senate, however, rejected the proposal
67
Hamburger, Religious Exemption 928, and n. 56 (quoting the state-
ment of Rep. Boudinot).
68
Id., at 928, and n. 57 (quoting the statement of Rep. Benson).
69
Muñoz, Original Meaning 1115.
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Alito, J., concurring in judgment
(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 ob-
jectors 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 consti-
tutionalize this exemption despite its potential effect on na-
tional 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 many pos-
sible 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 par-
ticular 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,
70
Several State Constitutions contained both Free Exercise Clause ana-
logs 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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or the view that Congress should be able to decide whether
to
grant or withhold such exemptions based on its assess-
ment 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 Employ-
ees, 585 U. S. –––, ––– (2018), but at the same time, stare
decisis is “not an inexorable command.” Ibid. (internal quo-
tation marks omitted). It “is at its weakest when we inter-
pret the Constitution because our interpretation can be al-
tered 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 –––; 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 offen-
sive to the First Amendment (a fxed star in our constitu-
tional 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 fac-
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Alito, J., concurring in judgment
tors, and four of those weigh strongly against Smith: its rea-
soni
ng; 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 –––.
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 ordi-
nary” meaning of the constitutional text, see Heller, 554
U. S., at 576, and it made no real effort to explore the under-
standing 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 briefng 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 “errone-
ous,” Wisconsin Right to Life, Inc., 551 U. S., at 500–501
(opinion concurring in part and concurring in judgment).
William Gobitas,
71
a 10-year-old ffth grader, and his 12-year-
old sister Lillian refused to salute the fag 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
71
The family name was apparently misspelled in the case caption. See
Sutton, Barnette, Frankfurter, and Judicial Review, 96 Marq. L. Rev. 133,
134 (2012).
72
See also N. Feldman, Scorpions 179 (2010).
73
Ibid.
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The Gobitas children were expelled from school, and the fam-
i
ly 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 tol-
eration, 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 few in the face of nearly
30 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., at 642; id., at 643–
644 (Black and Douglas, JJ., concurring); id., at 644–646
(Murphy, J., concurring). Turning Gobitis's words on their
head, Barnette held that students with religious objections
to saluting the fag 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 interpreta-
tion of the Free Exercise Clause. It rested primarily on the
proposition that the Free Exercise Clause protects beliefs,
74
Id., at 180.
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not conduct. 98 U. S., at 166–167. The Court had repudi-
ated
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 de-
nying 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 deci-
sion 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) (plu-
rality 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 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 in-
volved the award of unemployment compensation benefts
76
“The clear implication was that a `direct' interference would have been
unconstitutional.” McConnell, Free Exercise Revisionism 1125.
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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 pos-
session 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 partic-
ular cases, and that is presumably what it did regarding
Smith and Black. Why this was not suffcient 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 un-
employment compensation decisions, Smith still faced prob-
lems. 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, 455 U. S.
252 (payment of taxes); and Gillette, 401 U. S. 437 (denial of
conscientious objector status to person with religious objec-
tion 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
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unrelated to unemployment benefts. 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 im-
plicated 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 sur-
vived. See 494 U. S., at 881–882.
It is hard to see the justifcation for this curious doctrine.
The idea seems to be that if two independently insuffcient
constitutional claims join forces they may merge into a single
valid hybrid claim, but surely the rule cannot be that assert-
i ng two i nva l id clai ms, no matter how weak, is a lways
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
result would be a (barely) suffcient hybrid claim. Such a
scheme is obviously unworkable and has never been recog-
nized outside of Smith.
And then there is the problem that the hybrid-rights ex-
ception would largely swallow up Smith's general rule. A
great many clai ms for rel ig i ous exempti ons can easi ly
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 partici-
pated in this sacrament, weren't they engaging in a form of
expressive conduct? Their ingestion of peyote “communi-
cate[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. Mc-
Connell, Free Exercise Revisionism 1122. And, “if a hybrid
claim is one in which a litigant would actually obtain an ex-
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emption 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 567 (opinion of Souter, J.); see also Lay-
cock, 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 cate-
gories for unemployment compensation cases, cases involv-
ing 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 556–557.
Smith's rough treatment of prior decisions diminishes its
own status as a precedent.
B
Consistency with other precedents. Smith is also discor-
dant with other precedents. Smith did not overrule Sher-
bert 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 Dis-
abilities 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 “minis-
ter” 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
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laws. Id., at 180. The Equal Employment Opportunity
Commissi
on 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. –––, ––– – ––– (2020), we found
that other religious schools were entitled to similar exemp-
tions from both the ADA and the Age Discrimination in Em-
ployment Act of 1967.
There is also tension between Smith and our opinion in
Maste r p i ece Cakesho p, L td. v. Co l o rado Ci v i l Ri gh t s
Comm'n, 584 U. S. 617 (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 exer-
cise of religion.” Id., at 632. 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 indi-
viduals who are willing to offciate both opposite-sex and
same-sex weddings.
Other inconsistencies exist. Smith declared that “a pri-
vate right to ignore generally applicable laws” would be a
77
Our strained attempt to square the ministerial exception with Smith
highlights the tension between the two decisions. Smith held that a gen-
erally applicable law satisfes 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 pey-
ote 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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“constitutional anomaly,” 494 U. S., at 886, but this Court has
of
ten 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 appli-
cable 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 De-
fense of Religious Exemptions, 59 Boston College L. Rev.
1595, 1611 (2018), and cases holding generally applicable laws
unconstitutional as applied are unremarkable. “[T]he nor-
mal 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 contribu-
tions and expenditures could not be “constitutionally ap-
plied” 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 infiction 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 vio-
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late 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 prohib-
iting disclosure of illegally intercepted communications be-
cause 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) (respond-
ents 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 fun-
damentally at odds with how we usually think about liberties
guaranteed by the Bill of Rights. As Justice Jackson fa-
mously 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 offcials.” Barnette, 319 U. S., at 638. Smith, by con-
trast, 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 ap-
plicable laws. Id., at 888. Under this interpretation, the
free exercise of religion does not receive the judicial protec-
tion 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. In-
stead, at least four serious problems have arisen and con-
tinue to plague courts when called upon to apply Smith.
1
“Hybrid-rights” cases. The “hybrid rights” exception,
which was essential to distinguish Yoder, has baffed the
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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 re-
markably blunt: “[H]old[ing] that the legal standard under
the Free Exercise Clause depends on whether a free-exercise
claim is coupled with other constitutional rights . . . is com-
pletely 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 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 be-
lieve the hybrid-rights theory to be dicta”).
A second camp holds that the hybrid-rights exception ap-
plies only when a free-exercise claim is joined with some
other independently viable claim. See Archdiocese of Wash-
ington v. WMATA, 897 F. 3d 314, 331 (CADC 2018) (A “hy-
brid 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 chal-
lenge 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).
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The third group requires that the non-free-exercise claim
be
“colorable.” See Cornerstone Christian Schools v. Uni-
versity 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 “ `likeli-
hood of success on the merits' standard for preliminary in-
junctions” or the pre-Antiterrorism and Effective Death
Penalty Act standard for obtaining an evidentiary hearing,
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 purport-
edly neutral rule “targets” religious exercise or has the re-
striction 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 offcials who took the
challenged action, or may they also take into account com-
ments by superiors and others in a position of infuence?
78
Recently, some lower courts have proceeded under yet another ap-
proach, which analyzes whether the claims presented are suffciently simi-
lar 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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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.” Id., at 878. Smith did not elaborate on what
that meant, and later in Lukumi, which concerned city ordi-
nances that burdened the practice of Santeria, 508 U. S., at
525–528, Justices in the Smith majority adopted different in-
terpretations. Justice Scalia and Chief Justice Rehnquist
took the position that the “object” of a rule must be deter-
mined by its terms and that evidence of the rulemakers' mo-
tivation should not be considered. 508 U. S., at 557–559
(opinion concurring in part and concurring in judgment).
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 con-
duct 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 dif-
fcult 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 Colo-
rado 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 dispara-
ging 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 mem-
bers in Lukumi. Masterpiece Cakeshop, 584 U. S., at 636.
That is as far as this Court's decisions have gone on the ques-
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tion of targeting, and thus many important questions re-
mai
n open.
The present case highlights two—specifcally, which off-
cials' motivations are relevant and what degree of disparage-
ment 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 an excuse for
bigotry—went too far. Id., at 634–636. But what about the
comments of Philadelphia offcials 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 insuffcient. Al-
though 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 signifcant
role, in the process.” 922 F. 3d, at 157 (emphasis added).
79
App. 367–369 (Commissioner Figueora testifying that she was ap-
pointed 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 Offcers).
80
App. 182, 365–366. Apart from the statements made by City offcials,
other evidence suggested that the City was targeting CSS. For instance,
the City changed its justifcation for the closure of intake to CSS numerous
times. Brief for Petitioners 12–15 (describing six different justifcations).
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 certifed. The City's re-
sponse therefore appears to “proscribe more religious conduct than is nec-
essary to achieve [its] stated ends.” Lukumi, 508 U. S., at 538.

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The city council's suggestion that CSS's religious liberty
clai
m 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 “[t]aken out of
context,” was “best viewed as an effort to reach common
ground with [CSS] by appealing to an authority within their
shared religious tradition.” Ibid. One may agree or dis-
agree with the Third Circuit's characterization and evalua-
tion of the statements of the City offcials, but the court's
analysis highlights the extremely impressionistic inquiry
that Smith's targeting requirement may entail.
Confusion and disagreement about “targeting ” have sur-
faced in other cases. Recently in Roman Catholic Diocese
of Brooklyn v. Cuomo, 592 U. S. 14 (2020) (per curiam),
there were conficting views about comments made by the
Governor of New York. On the day before he severely re-
stricted 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 institu-
tions down.' ” Agudath Israel of America v. Cuomo, 980
F. 3d 222, 229 (CA2 2020) (Park, J., dissenting). A dissent-
ing 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 21. But two Justices who dissented found the Governor's
comments inconsequential. Id., at 41–42 (opinion of Soto-
mayor, J., joined by Kagan, J.).
In Stormans, Inc. v. Wiesman, 579 U. S. 942 (2016) (deny-
ing 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 un-
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usual 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 fnding, Stormans, Inc., 794
F. 3d 1064, 1079 (2015). Compare Stormans, Inc., 579 U. S.,
at 948–949, and n. 3 (Alito, J., joined by Roberts, C. J., and
Thomas, J., dissenting from denial of certiorari) (questioning
Ninth Circuit's fnding).
Decisions of the lower courts on the issue of targeting re-
main 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); Tenafy Eruv
Assn., Inc. v. Tenafy, 309 F. 3d 144, 168, n. 30 (CA3 2002)
(declining to reach issue), with Commack Self-Service Ko-
sher 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 legisla-
tive 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 secu-
lar 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,
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was widely unenforced in cases involving secular conduct.
See
, e. g., Tenafy Eruv Assn., 309 F. 3d, at 167–168.
4
Identify ing appropr iate comparators. To deter mi ne
whether a law provides equal treatment for secular and reli-
gious 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 con-
duct 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 differ-
ent restrictions for different categories of activities. Some-
times 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 deter-
mine 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 re-
strictions 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 –––. The dissenters, on the other hand, focused on “su-
permarkets, restaurants, factories, and offces.” Id., at –––
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(opinion of Kavanaugh, J., joined by Thomas and Gor-
such
, JJ.).
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 Injunc-
tion, 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 ftness facilities. 591 U. S., at ––– – ––– (Alito, J.,
joined by Thomas and Kavanaugh, JJ., dissenting).
In Roman Catholic Diocese of Brooklyn, 592 U. S. 14, Jus-
tices in the majority compared houses of worship with large
retail establishments, factories, schools, liquor stores, bicycle
repair shops, and pet shops, id., at 17–18; id., at 22 (Gorsuch,
J., concurring), id., at 28 (Kavanaugh, J., concurring), while
dissenters cited theaters and concert halls, id., at 39 (opinion
of Sotomayor, J., joined by Kagan, J.).
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
affliated school, reasoning that the State permitted pre-
schools, colleges, and universities to stay open and also al-
lowed attendance at concerts and lectures. Danville Chris-
tian Academy, Inc. v. Beshear, 503 F. Supp. 3d 516, 524 (ED
Ky. 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
shown otherwise.
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D
Subsequen
t 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 Be-
nefcente 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 signifcant development is the subsequent profu-
sion 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 briefng 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
briefs urging us to preserve Smith. Indeed, the term is
rarely even mentioned.
81
See, e. g., McConnell, Origins 1409; McConnell, Free Exercise Revi-
sionism 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.
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All that the City has to say on the subject is that overrul-
i
ng Smith would cause “substantial regulatory . . . disrup-
tion” by displacing RFRA, RLUIPA, and related state laws,
Brief for City Respondents 51 (internal quotation marks
omitted), but this is a baffing argument. How would over-
ruling Smith disrupt the operation of laws that were enacted
to abrogate Smith?
One of the City's amici, the New York State Bar Associa-
tion, offers a different reliance argument. It claims that
some individuals, relying on Smith, have moved to jurisdic-
tions with anti-discrimination laws that do not permit reli-
gious exemptions. Brief for New York State Bar Associa-
tion 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 ex-
emptions, and (c) there was insuffcient proof of religious tar-
geting. 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 moti-
vated 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 perpetu-
ity based on such speculation.
Indeed, even if more substantial reliance could be shown,
Smith's dubious standing would weigh against giving this
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factor too much weight. Smith has been embattled since
the
day it was decided, and calls for its reexamination have
intensifed in recent years. See Masterpiece Cakeshop, 584
U. S., at 643 (Gorsuch, J., joined by Alito, J., concurring);
Kennedy, 586 U. S., at ––– – ––– (Alito, J., joined by Thomas,
Gorsuch, and Kavanaugh, JJ., concurring in denial of cer-
tiorari); City of Boerne 521 U. S., at 566 (Breyer, J., dissent-
ing) (“[T]he Court should direct the parties to brief the ques-
tion whether [Smith] was correctly decided”); id., at 565
(O'Connor, J., joined by Breyer, J., dissenting) (“[I]t is es-
sential 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 –––.
***
Smith was wrongly decided. As long as it remains on the
books, it threatens a fundamental freedom. And while prec-
edent 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 ap-
plied in this case? The answer that comes most readily to
mind is the standard that Smith replaced: A law that im-
poses a substantial burden on religious exercise can be sus-
tained only if it is narrowly tailored to serve a compelling
government interest.
Whether this test should be rephrased or supplemented
with specifc rules is a question that need not be resolved
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
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hindered any same-sex couples from becoming foster par-
ents,
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 fnd
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 ex-
pression of an idea cannot be suppressed simply because
some fnd it offensive, insulting, or even wounding. See
Matal v. Tam, 582 U. S. 218, 223 (2017) (“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 inter-
fere with speech for no better reason than promoting an ap-
proved 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 fnds the idea itself offensive or disagreeable”); FCC
v. Pacifca Foundation, 438 U. S. 726, 745 (1978) (opinion of
Stevens, J.) (“[T]he fact that society may fnd speech offen-
sive is not a suffcient reason for suppressing it. Indeed, if
it is the speaker's opinion that gives offense, that conse-
quence is a reason for according it constitutional protec-
tion”); Street v. New York, 394 U. S. 576, 592 (1969) (“[T]he
public expression of ideas may not be prohibited merely be-
cause 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 ani-
mosity cannot be the basis for abridgment of . . . constitu-
tional freedoms”).
The same fundamental principle applies to religious prac-
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dom 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 of-
fensive 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 be-
cause it expresses an idea that some fnd hurtful is a zero-
sum 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 Ober-
gefell 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 “re-
ligions, 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 631.
B
One fnal 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
is simply asserting the right to control its own internal oper-
ations, and they analogize CSS to either a City employee or
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a contractor hired to perform an exclusively governmental
func
tion.
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 govern-
mental 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 prov-
ince of the government”); Rayburn v. Hogue, 241 F. 3d 1341,
1347 (CA11 2001) (acknowledging that foster care is not tra-
ditionally 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 feld, 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, Wabaunsee Cty. v. Umbehr, 518 U. S. 668 (1996)—
are far afeld. A government cannot “reduce a group's First
Amendment rights by simply imposing a licensing require-
ment.” National Institute of Family and Life Advocates
v. Becerra, 585 U. S. 755, 773 (2018).
***
For all these reasons, I would overrule Smith and reverse
the decision below. Philadelphia's exclusion of CSS from

618 FUL
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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 briefng 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.
Justice Gorsuch, with whom Justice Thomas and Jus-
tice Alito join, concurring in the judgment.
The Court granted certiorari to decide whether to over-
rule 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 prece-
dents, 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 treat-
ment of Catholic Social Services (CSS) violates the Free Ex-
ercise Clause. But, they say, there's no “need” or “reason”
to address the error of Smith today. Ante, at 533 (majority
opinion); ante, at 544 (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 533. So to avoid Smith's exemption and
subject the City's policy to First Amendment scrutiny, the
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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 dis-
trict court held that the City's public accommodations law
(its Fair Practices Ordinance or FPO) is both generally appli-
cable and applicable to CSS. At least initially, the majority
chooses to bypass the district court's major premise—that
the FPO qualifes as “generally applicable” under Smith.
It's a curious choice given that the FPO applies only to cer-
tain defned 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 inter-
pretation 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 frst view.”
Brownback v. King, 592 U. S. –––, –––, n. 4 (2021) (internal
quotation marks omitted).
Trailblazing through the Philadelphia city code turns out
to be no walk in the park either. As the district court ob-
served, the City's FPO defnes “public accommodations” ex-
pansively to include “[a]ny provider” that “solicits or accepts
patronage” of “the public or whose . . . services [or] facilities”
are “made available to the public.” 320 F. Supp. 3d 661, 679
(ED Pa. 2018) (alteration omitted; emphasis deleted). And,
the district court held, this defnition covers CSS because
(among other things) it “publicly solicits prospective foster
parents” and “provides professional `services' to the public.”
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Ibid. 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 defnition of “public accommodations.” It
ignores the reason the district court offered for why CSS
falls within that defnition. Instead, it asks us to look to a
different public accommodations law—a Commonwealth of
Pennsylvania public accommodations statute. See ante, at
539 (discussing Pa. Stat. Ann., Tit. 43, § 954(l) (Purdon Cum.
Supp. 2009)). And, the majority promises, CSS fails to qual-
ify 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
539. 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 de-
clares 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 prob-
ably 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 exhaus-
tive. 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 clients
(students) and employees (faculty). And if they can qualify
as public accommodations under the state statute, it isn't ex-
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actly clear why foster agencies cannot. What does the ma-
jor
ity have to say about this problem? Again, silence.
If anything, the majority's next move only adds to the con-
fusion. 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 accom-
modation” under the City's Fair Practices Ordinance.' ”
Ante, at 540 (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 540.
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 appli-
cable under Smith because they do not apply to everyone.
Or maybe the majority means to invoke a canon of constitu-
tional avoidance: Before concluding that a public accommoda-
tions 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 is that
the majority's attempt to cloak itself in CSS's argument in-
troduces 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
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City argues that, in addition to the FPO, another generally
appl
icable 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 per-
mit discrimination against any individual on the basis of . . .
sexual orientation.” Supp. App. to Brief for City Respond-
ents 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 fnd some way around the problem. Its
attempt to do so proceeds in three steps.
First, the majority directs our attention to another provi-
sion of the contract—§ 3.21. See ante, at 534–537. Entitled
“Rejection of Referral,” this provision prohibits discrimina-
tion 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 be-
cause it expressly contemplates “exceptions.” Ante, at 536.
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 fam-
ily. See A. Scalia & B. Garner, Reading Law: The Inter-
pretation 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. Mean-
while, our case has nothing to do with the referral—or place-
ment—stage of the foster process. This case concerns the
recruitment and certifcation 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.
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That diffculty 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 536. Instead, the majority
suggests, we should reconceive § 3.21 as authorizing excep-
tions 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 537.
This sets up the majority's fnal move—where the real
magic happens. Having conjured a confict within the con-
tract, 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 nullify-
ing § 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 ibid. As rewritten, the contract contains no generally
applicable rule against discrimination anywhere in the fos-
ter process.
From start to fnish, 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 spe-
cifc contractual provision can comfortably coexist with a
more general one. And it proceeds to resolve a confict it
created by rewriting § 15.1. Once more, too, no party, ami-
cus, or lower court argued for any of this.
To be sure, the major ity agai n clai ms other w ise —
representing that it merely adopts the arguments of CSS and
the United States. See ante, at 537–538. But here, too, the
majority's representation raises rather than resolves ques-
tions. Instead of pursuing anything like the majority's con-
tract arguments, CSS and the United States suggest that
§ 3.21 “alone triggers strict scrutiny,” Reply Brief 5 (empha-
sis added), because that provision authorizes the City “to
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grant formal exemptions from its policy” of nondiscrimina-
ti
on, 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 any-
where “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 62 (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 actu-
ally 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 533 (majority opinion);
ante, at 544 (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 guarantees that
this litigation is only getting started. As the fnal arbiter of
state law, the Pennsylvania Supreme Court can effectively
overrule the majority's reading of the Commonwealth's pub-
lic accommodations law. The City can revise its FPO to
make even plainer still that its law does encompass foster
services. Or with a fick of a pen, municipal lawyers may
rewrite the City's contract to close the § 3.21 loophole.
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Once any of that happens, CSS will fnd itself back where
it
started. The City has made clear that it will never toler-
ate 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 com-
mitted to help any inquiring same-sex couples fnd 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 cus-
tom cakes to celebrate same-sex weddings. See Master-
piece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 584
U. S. 617 (2018). After being forced to litigate all the way
to the Supreme Court, we ruled for him on narrow grounds
similar to those the majority invokes today. Because cer-
tain government offcials responsible for deciding Mr. Phil-
lips's compliance with a local public accommodations law ut-
tered statements exhibiting hostility to his religion, the
Court held, those offcials failed to act “neutrally” under
Smith. See 584 U. S., at 634–636. But with Smith still on
the books, all that victory assured Mr. Phillips was a new
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round of litigation—with offcials now presumably more care-
fu
l 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 an-
nounced. 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. 61; Roman Catholic
Diocese of Brooklyn v. Cuomo, 592 U. S. 14 (2020) (per cu-
riam); 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 ail-
ment. 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
ten Justices—including six sitting Justices—have questioned
its fdelity to the Constitution. See ante, at 553–554 (Alito,
J., concurring in judgment); ante, at 543 (Barrett, J., con-
curring). The Court granted certiorari in this case to re-
solve 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 explain-
ing why Smith should be overruled. And not a single
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Cite
as: 593 U. S. 522 (2021)
627
Gorsuch, J., concurring in judgment
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 544 (Barrett, J., concurring). To be
sure, any time this Court turns from misguided precedent
back toward the Constitution's original public meaning, chal-
lenging questions may arise across a large feld 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
unifed theory” of the Free Exercise Clause for all future
cases until the end of time, see American Legion v. Ameri-
can Humanist Assn., 588 U. S. –––, ––– (2019) (plurality
opinion), the Court should overrule it now, set us back on
the correct course, and address each case as it comes.
What possible beneft 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 pub-
lic accommodations laws and the First Amendment; it in-
volves 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 beneft
of what we know to be the correct interpretation of the Con-
stitution is picking a side. Smith committed a constitutional
error. Only we can fx it. Dodging the question 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.
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