NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–123

															_________________

															SHARONELL FULTON, et al., PETITIONERS v. CITY OF PHILADELPHIA, PENNSYLVANIA, et al.

															on writ of certiorari to the united states
court of appeals for the third circuit

															[June 17, 2021]

															Chief Justice Roberts delivered the opinion of
the Court.

															Catholic Social Services is a foster care agency
in Philadelphia. The City stopped referring children to CSS upon
discovering that the agency would not certify same-sex couples to
be foster parents due to its religious beliefs about marriage. The
City will renew its foster care contract with CSS only if the
agency agrees to certify same-sex couples. The question presented
is whether the actions of Philadelphia violate the First
Amendment.

															I

															The Catholic Church has served the needy
children of Philadelphia for over two centuries. In 1798, a priest
in the City organized an association to care for orphans whose
parents had died in a yellow fever epidemic. H. Folks, The Care of
Destitute, Neglected, and Delinquent Children 10 (1902). During the
19th century, nuns ran asylums for orphaned and destitute youth. T.
Hacsi, Second Home: Orphan Asylums and Poor Families in America 24
(1997). When criticism of asylums mounted in the Progressive Era,
see id. , at 37–40, the Church established the Catholic
Children’s Bureau to place children in foster homes. Petitioner CSS
continues that mission today.

															The Philadelphia foster care system depends on
cooperation between the City and private foster agencies like CSS.
When children cannot remain in their homes, the City’s Department
of Human Services assumes custody of them. The Department enters
standard annual contracts with private foster agencies to place
some of those children with foster families.

															The placement process begins with review of
prospective foster families. Pennsylvania law gives the authority
to certify foster families to state-licensed foster agencies like
CSS. 55 Pa. Code §3700.61 (2020). Before certifying a family, an
agency must conduct a home study during which it considers
statutory criteria including the family’s “ability to provide care,
nurturing and supervision to children,” “[e]xisting family
relationships,” and ability “to work in partnership” with a foster
agency. §3700.64. The agency must decide whether to “approve,
disapprove or provisionally approve the foster family.”
§3700.69.

															When the Department seeks to place a child with
a foster family, it sends its contracted agencies a request, known
as a referral. The agencies report whether any of their certified
families are available, and the Department places the child with
what it regards as the most suitable family. The agency continues
to support the family throughout the placement.

															The religious views of CSS inform its work in
this system. CSS believes that “marriage is a sacred bond between a
man and a woman.” App. 171. Because the agency understands the
certification of prospective foster families to be an endorsement
of their relationships, it will not certify unmarried
couples—regardless of their sexual orientation—or same-sex married
couples. CSS does not object to certifying gay or lesbian
individuals as single foster parents or to placing gay and lesbian
children. No same-sex couple has ever sought certification from
CSS. If one did, CSS would direct the couple to one of the more
than 20 other agencies in the City, all of which currently certify
same-sex couples. For over 50 years, CSS successfully contracted
with the City to provide foster care services while holding to
these beliefs.

															But things changed in 2018. After receiving a
complaint about a different agency, a newspaper ran a story in
which a spokesman for the Archdiocese of Philadelphia stated that
CSS would not be able to consider prospective foster parents in
same-sex marriages. The City Council called for an investigation,
saying that the City had “laws in place to protect its people from
discrimination that occurs under the guise of religious freedom.”
App. to Pet. for Cert. 147a. The Philadelphia Commission on Human
Relations launched an inquiry. And the Commissioner of the
Department of Human Services held a meeting with the leadership of
CSS. She remarked that “things have changed since 100 years ago,”
and “it would be great if we followed the teachings of Pope
Francis, the voice of the Catholic Church.” App. 366. Immediately
after the meeting, the Department informed CSS that it would no
longer refer children to the agency. The City later explained that
the refusal of CSS to certify same-sex couples violated a
non-discrimination provision in its contract with the City as well
as the non-discrimination requirements of the citywide Fair
Practices Ordinance. The City stated that it would not enter a full
foster care contract with CSS in the future unless the agency
agreed to certify same-sex couples.

															CSS and three foster parents affiliated with the
agency filed suit against the City, the Department, and the
Commission. The Support Center for Child Advocates and Philadelphia
Family Pride intervened as defendants. As relevant here, CSS
alleged that the referral freeze violated the Free Exercise and
Free Speech Clauses of the First Amendment. CSS sought a temporary
restraining order and preliminary injunction directing the
Department to continue referring children to CSS without requiring
the agency to certify same-sex couples.

															The District Court denied preliminary relief. It
concluded that the contractual non-discrimination requirement and
the Fair Practices Ordinance were neutral and generally applicable
under Employment Division, Department of Human Resources of
Oregon v. Smith , 494 U.S.
872 (1990), and that the free exercise claim was therefore
unlikely to succeed. 320 F. Supp. 3d 661, 680–690 (ED Pa.
2018). The court also determined that the free speech claims were
unlikely to succeed because CSS performed certifications as part of
a government program. Id. , at 695–700.

															The Court of Appeals for the Third Circuit
affirmed. Because the contract between the parties had expired, the
court focused on whether the City could insist on the inclusion of
new language forbidding discrimination on the basis of sexual
orientation as a condition of contract renewal. 922 F.3d 140, 153
(2019). The court concluded that the proposed contractual terms
were a neutral and generally applicable policy under Smith .
922 F. 3d, at 152–159. The court rejected the agency’s free
speech claims on the same grounds as the District Court. Id. , at 160–162.

															CSS and the foster parents sought review. They
challenged the Third Circuit’s determination that the City’s
actions were permissible under Smith and also asked this
Court to reconsider that precedent.

															We granted certiorari. 589 U. S. ___
(2020).

															II

															A

															The Free Exercise Clause of the First
Amendment, applicable to the States under the Fourteenth Amendment,
provides that “Congress shall make no law . . .
prohibiting the free exercise” of religion. As an initial matter,
it is plain that the City’s actions have burdened CSS’s religious
exercise by putting it to the choice of curtailing its mission or
approving relationships inconsistent with its beliefs. The City
disagrees. In its view, certification reflects only that foster
parents satisfy the statutory criteria, not that the agency
endorses their relationships. But CSS believes that certification
is tantamount to endorsement. And “religious beliefs need not be
acceptable, logical, consistent, or comprehensible to others in
order to merit First Amendment protection.” Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S.
707 , 714 (1981). Our task is to decide whether the burden the
City has placed on the religious exercise of CSS is
constitutionally permissible. Smith held that laws incidentally
burdening religion are ordinarily not subject to strict scrutiny
under the Free Exercise Clause so long as they are neutral and
generally applicable. 494 U. S., at 878–882. CSS urges us to
overrule Smith , and the concurrences in the judgment argue
in favor of doing so, see post , p. 1 (opinion of Alito,
J.); post , p. 1 (opinion of Gorsuch, J.). But we need
not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise
of CSS through policies that do not meet the requirement of being
neutral and generally applicable. See Church of Lukumi Babalu
Aye, Inc. v. Hialeah , 508 U.S.
520 , 531–532 (1993).

															Government fails to act neutrally when it
proceeds in a manner intolerant of religious beliefs or restricts
practices because of their religious nature. See Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584
U. S. ___, ___–___ (2018) (slip op., at 16–17); Lukumi ,
508 U. S., at 533. CSS points to evidence in the record that
it believes demonstrates that the City has transgressed this
neutrality standard, but we find it more straightforward to resolve
this case under the rubric of general applicability.

															A law is not generally applicable if it
“invite[s]” the government to consider the particular reasons for a
person’s conduct by providing “ ‘a mechanism for
individualized exemptions.’ ” Smith , 494 U. S., at
884 (quoting Bowen v. Roy , 476
U.S. 693 , 708 (1986) (opinion of Burger, C. J., joined by
Powell and Rehnquist, JJ.)). For example, in Sherbert v. Verner , 374 U.S.
398 (1963), a Seventh-day Adventist was fired because she would
not work on Saturdays. Unable to find a job that would allow her to
keep the Sabbath as her faith required, she applied for
unemployment benefits. Id. , at 399–400. The State denied her
application under a law prohibiting eligibility to claimants who
had “failed, without good cause . . . to accept available
suitable work.” Id. , at 401 (internal quotation marks
omitted). We held that the denial infringed her free exercise
rights and could be justified only by a compelling interest. Id. , at 406. Smith later explained that the
unemployment benefits law in Sherbert was not generally
applicable because the “good cause” standard permitted the
government to grant exemptions based on the circumstances
underlying each application. See 494 U. S., at 884 (citing Roy , 476 U. S., at 708; Sherbert , 374
U. S., at 401, n. 4). Smith went on to hold that
“where the State has in place a system of individual exemptions, it
may not refuse to extend that system to cases of ‘religious
hardship’ without compelling reason.” 494 U. S., at 884
(quoting Roy , 476 U. S., at 708); see also Lukumi , 508 U. S., at 537 (same).

															A law also lacks general applicability if it
prohibits religious conduct while permitting secular conduct that
undermines the government’s asserted interests in a similar way.
See id. , at 542–546. In Church of Lukumi Babalu Aye,
Inc. v. Hialeah , for instance, the City of Hialeah
adopted several ordinances prohibiting animal sacrifice, a practice
of the Santeria faith. Id. , at 524–528. The City claimed
that the ordinances were necessary in part to protect public
health, which was “threatened by the disposal of animal carcasses
in open public places.” Id. , at 544. But the ordinances did
not regulate hunters’ disposal of their kills or improper garbage
disposal by restaurants, both of which posed a similar hazard. Id. , at 544–545. The Court concluded that this and other
forms of underinclusiveness meant that the ordinances were not
generally applicable. Id. , at 545–546.

															B

															The City initially argued that CSS’s practice
violated section 3.21 of its standard foster care contract. We
conclude, however, that this provision is not generally applicable
as required by Smith . The current version of section 3.21
specifies in pertinent part:

															“ Rejection of Referral . Provider
shall not reject a child or family including, but not limited to,
. . . prospective foster or adoptive parents, for
Services based upon . . . their . . . sexual
orientation . . . unless an exception is granted by the
Commissioner or the Commissioner’s designee, in his/her sole
discretion.” Supp. App. to Brief for City Respondents 16–17.

															This provision requires an agency to provide
“Services,” defined as “the work to be performed under this
Contract,” App. 560, to prospective foster parents regardless of
their sexual orientation.

															Like the good cause provision in Sherbert , section 3.21 incorporates a system of individual
exemptions, made available in this case at the “sole discretion” of
the Commissioner. The City has made clear that the Commissioner
“has no intention of granting an exception” to CSS. App. to Pet.
for Cert. 168a. But the City “may not refuse to extend that
[exemption] system to cases of ‘religious hardship’ without
compelling reason.” Smith , 494 U. S., at 884 (quoting Roy , 476 U. S., at 708).

															The City and intervenor-respondents resist this
conclusion on several grounds. They first argue that governments
should enjoy greater leeway under the Free Exercise Clause when
setting rules for contractors than when regulating the general
public. The government, they observe, commands heightened powers
when managing its internal operations. See NASA v. Nelson , 562 U.S.
134 , 150 (2011); Engquist v. Oregon Dept. of
Agriculture , 553 U.S.
591 , 598–600 (2008). And when individuals enter into government
employment or contracts, they accept certain restrictions on their
freedom as part of the deal. See Garcetti v. Ceballos , 547 U.S.
410 , 418–420 (2006); Board of Comm’rs, Wabaunsee Cty. v. Umbehr , 518 U.S.
668 , 677–678 (1996). Given this context, the City and
intervenor-respondents contend, the government should have a freer
hand when dealing with contractors like CSS.

															These considerations cannot save the City here.
As Philadelphia rightly acknowledges, “principles of neutrality and
general applicability still constrain the government in its
capacity as manager.” Brief for City Respondents 11–12. We have
never suggested that the government may discriminate against
religion when acting in its managerial role. And Smith itself drew support for the neutral and generally applicable
standard from cases involving internal government affairs. See 494
U. S., at 883–885, and n. 2 (citing Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S.
439 (1988); Roy , 476 U. S. 693). The City and
intervenor-respondents accordingly ask only that courts apply a
more deferential approach in determining whether a policy is
neutral and generally applicable in the contracting context. We
find no need to resolve that narrow issue in this case. No matter
the level of deference we extend to the City, the inclusion of a
formal system of entirely discretionary exceptions in section 3.21
renders the contractual non-discrimination requirement not
generally applicable.

															Perhaps all this explains why the City now
contends that section 3.21 does not apply to CSS’s refusal to
certify 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 certified foster family.” Brief
for City Respondents 36. We think the City had it right the first
time. Although the section is titled “Rejection of Referral,” the
text sweeps more broadly, forbidding the rejection of “prospective
foster . . . parents” for “Services,” without limitation.
Supp. App. to Brief for City Respondents 16. The City maintains
that certification is one of the services foster agencies are hired
to perform, so its attempt to backtrack on the reach of section
3.21 is unavailing. See A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 222 (2012) (“[A] title or heading
should never be allowed to override the plain words of a text.”).
Moreover, the City adopted the current version of section 3.21
shortly after declaring that it would make CSS’s obligation to
certify same-sex couples “explicit” in future contracts, App. to
Pet. for Cert. 170a, confirming our understanding of the text of
the provision.

															The City and intervenor-respondents add that,
notwithstanding the system of exceptions in section 3.21, a
separate provision in the contract independently prohibits
discrimination in the certification of foster parents. That
provision, section 15.1, bars discrimination on the basis of sexual
orientation, and it does not on its face allow for exceptions. See
Supp. App. to Brief for City Respondents 31. But state law makes
clear that “one part of a contract cannot be so interpreted as to
annul another part.” Shehadi v. Northeastern Nat. Bank of
Pa. , 474 Pa. 232, 236, 378 A.2d 304 , 306 (1977); see Commonwealth ex rel. Kane v. UPMC , 634 Pa. 97, 135,
129 A.3d 441, 464 (2015). Applying that “fundamental” rule here, Shehadi , 474 Pa., at 236, 378 A. 2d, at 306, an
exception from section 3.21 also must govern the prohibition in
section 15.1, lest the City’s reservation of the authority to grant
such an exception be a nullity. As a result, the contract as a
whole contains no generally applicable non-discrimination
requirement.

															Finally, the City and intervenor-respondents
contend that the availability of exceptions under section 3.21 is
irrelevant because the Commissioner has never granted one. That
misapprehends the issue. The creation of a formal mechanism for
granting exceptions renders a policy not generally applicable,
regardless whether any exceptions have been given, because it
“invite[s]” the government to decide which reasons for not
complying with the policy are worthy of solicitude, Smith ,
494 U. S., at 884—here, at the Commissioner’s “sole
discretion.”

															The concurrence objects that no party raised
these arguments in this Court. Post , at 6 (opinion of
Gorsuch, J.). But CSS, supported by the United States, contended
that the City’s “made-for-CSS Section 3.21 permits discretionary
‘exception[s]’ from the requirement ‘not [to] reject a child or
family’ based upon ‘their . . . sexual
orientation,’ ” which “alone triggers strict scrutiny.” Reply
Brief 5 (quoting Supp. App. to Brief for City Respondents 16; some
alterations in original); see also Brief for Petitioners 26–27
(section 3.21 triggers strict scrutiny); Brief for United States as Amicus Curiae 21–22 (same). The concurrence favors the
City’s reading of section 3.21, see post , at 5–6, but we
find CSS’s position more persuasive.

															C

															In addition to relying on the contract, the
City argues that CSS’s refusal to certify same-sex couples
constitutes an “Unlawful Public Accommodations Practice[ ]” in
violation of the Fair Practices Ordinance. That ordinance forbids
“deny[ing] or interfer[ing] with the public accommodations
opportunities of an individual or otherwise discriminat[ing] based
on his or her race, ethnicity, color, sex, sexual orientation,
. . . disability, marital status, familial status,” or
several other protected categories. Phila. Code §9–1106(1) (2016).
The City contends that foster care agencies are public
accommodations and therefore forbidden from discriminating on the
basis of sexual orientation when certifying foster parents.

															CSS counters that “foster care has never been
treated as a ‘public accommodation’ in Philadelphia.” Brief for
Petitioners 13. In any event, CSS adds, the ordinance cannot
qualify as generally applicable because the City allows exceptions
to it for secular reasons despite denying one for CSS’s religious
exercise. But that constitutional issue arises only if the
ordinance applies to CSS in the first place. We conclude that it
does not because foster care agencies do not act as public
accommodations in performing certifications.

															The ordinance defines a public accommodation in
relevant part as “[a]ny place, provider or public conveyance,
whether licensed or not, which solicits or accepts the patronage or
trade of the public or whose goods, services, facilities,
privileges, advantages or accommodations are extended, offered,
sold, or otherwise made available to the public.” §9–1102(1)(w).
Certification is not “made available to the public” in the usual
sense of the words. To make a service “available” means to make it
“accessible, obtainable.” Merriam-Webster’s Collegiate Dictionary
84 (11th ed. 2005); see also 1 Oxford English Dictionary 812 (2d
ed. 1989) (“capable of being made use of, at one’s disposal, within
one’s reach”). Related state law illustrates the same point. A
Pennsylvania antidiscrimination statute similarly defines a public
accommodation as an accommodation that is “open to, accepts or
solicits the patronage of the general public.” Pa. Stat. Ann., Tit.
43, §954( l ) (Purdon Cum. Supp. 2009). It fleshes out that
definition with examples like hotels, restaurants, drug stores,
swimming pools, barbershops, and public conveyances. Ibid. The “common theme” is that a public accommodation must “provide a
benefit to the general public allowing individual members of the
general public to avail themselves of that benefit if they so
desire.” Blizzard v. Floyd , 149 Pa. Commw. 503, 506, 613 A.2d 619 , 621 (1992).

															Certification as a foster parent, by contrast,
is not readily accessible to the public. It involves a customized
and selective assessment that bears little resemblance to staying
in a hotel, eating at a restaurant, or riding a bus. The process
takes three to six months. Applicants must pass background checks
and a medical exam. Foster agencies are required to conduct an
intensive home study during which they evaluate, among other
things, applicants’ “mental and emotional adjustment,” “community
ties with family, friends, and neighbors,” and “[e]xisting family
relationships, attitudes and expectations regarding the applicant’s
own children and parent/child relationships.” 55 Pa. Code §3700.64.
Such inquiries would raise eyebrows at the local bus station. And
agencies understandably approach this sensitive process from
different angles. As the City itself explains to prospective foster
parents, “[e]ach agency has slightly different requirements,
specialties, and training programs.” App. to Pet. for Cert. 197a.
All of this confirms that the one-size-fits-all public
accommodations model is a poor match for the foster care
system.

															The City asks us to adhere to the District
Court’s contrary determination that CSS qualifies as a public
accommodation under the ordinance. The concurrence adopts the
City’s argument, seeing no incongruity in deeming a private
religious foster agency a public accommodation. See post , at
3 (opinion of Gorsuch, J.). We respectfully disagree with the view
of the City and the concurrence. Although “we ordinarily defer to
lower court constructions of state statutes, we do not invariably
do so.” Frisby v. Schultz , 487
U.S. 474 , 483 (1988) (citation omitted). Deference would be
inappropriate here. The District Court did not take into account
the uniquely selective nature of the certification process, which
must inform the applicability of the ordinance. We agree with CSS’s
position, which it has maintained from the beginning of this
dispute, that its “foster services do not constitute a ‘public
accommodation’ under the City’s Fair Practices Ordinance, and
therefore it is not bound by that ordinance.” App. to Pet. for
Cert. 159a. We therefore have no need to assess whether the
ordinance is generally applicable.

															III

															The contractual non-discrimination requirement
imposes a burden on CSS’s religious exercise and does not qualify
as generally applicable. The concurrence protests that the “Court
granted certiorari to decide whether to overrule [ Smith ],”
and chides the Court for seeking to “sidestep the question.” Post , at 1 (opinion of Gorsuch, J.). But the Court also
granted review to decide whether Philadelphia’s actions were
permissible under our precedents. See Pet. for Cert. i. CSS has
demonstrated that the City’s actions are subject to “the most
rigorous of scrutiny” under those precedents. Lukumi , 508
U. S., at 546. Because the City’s actions are therefore
examined under the strictest scrutiny regardless of Smith ,
we have no occasion to reconsider that decision here.

															A government policy can survive strict scrutiny
only if it advances “interests of the highest order” and is
narrowly tailored to achieve those interests. Lukumi , 508
U. S., at 546 (internal quotation marks omitted). Put another
way, so long as the government can achieve its interests in a
manner that does not burden religion, it must do so.

															The City asserts that its non-discrimination
policies serve three compelling interests: maximizing the number of
foster parents, protecting the City from liability, and ensuring
equal treatment of prospective foster parents and foster children.
The City states these objectives at a high level of generality, but
the First Amendment demands a more precise analysis. See Gonzales v. O Centro Espírita Beneficente União do
Vegetal , 546 U.S.
418 , 430–432 (2006) (discussing the compelling interest test
applied in Sherbert and Wisconsin v. Yoder , 406 U.S.
205 (1972)). Rather than rely on “broadly formulated
interests,” courts must “scrutinize[ ] the asserted harm of
granting specific exemptions to particular religious claimants.” O Centro , 546 U. S., at 431. The question, then, is not
whether the City has a compelling interest in enforcing its
non-discrimination policies generally, but whether it has such an
interest in denying an exception to CSS.

															Once properly narrowed, the City’s asserted
interests are insufficient. Maximizing the number of foster
families and minimizing liability are important goals, but the City
fails to show that granting CSS an exception will put those goals
at risk. If anything, including CSS in the program seems likely to
increase, not reduce, the number of available foster parents. As
for liability, the City offers only speculation that it might be
sued over CSS’s certification practices. Such speculation is
insufficient to satisfy strict scrutiny, see Brown v. Entertainment Merchants Assn. , 564 U.S.
786 , 799–800 (2011), particularly because the authority to
certify foster families is delegated to agencies by the State, not
the City, see 55 Pa. Code §3700.61.

															That leaves the interest of the City in the
equal treatment of prospective foster parents and foster children.
We do not doubt that this interest is a weighty one, for “[o]ur
society has come to the recognition that gay persons and gay
couples cannot be treated as social outcasts or as inferior in
dignity and worth.” Masterpiece Cakeshop , 584 U. S., at
___ (slip op., at 9). On the facts of this case, however, this
interest cannot justify denying CSS an exception for its religious
exercise. The creation of a system of exceptions under the contract
undermines the City’s contention that its non-discrimination
policies 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 Respondents 1. CSS seeks only an accommodation that will allow
it to continue serving the children of Philadelphia in a manner
consistent with its religious beliefs; it does not seek to impose
those beliefs on anyone else. The refusal of Philadelphia to
contract with CSS for the provision of foster care services unless
it agrees to certify same-sex couples as foster parents cannot
survive strict scrutiny, and violates the First Amendment.

															In view of our conclusion that the actions of
the City violate the Free Exercise Clause, we need not consider
whether they also violate the Free Speech Clause.

															The judgment of the United States Court of
Appeals for the Third Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.

															It is so ordered. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–123

															_________________

															SHARONELL FULTON, et al., PETITIONERS v. CITY OF PHILADELPHIA, PENNSYLVANIA, et al.

															on writ of certiorari to the united states
court of appeals for the third circuit

															[June 17, 2021]

															Justice Barrett, with whom Justice Kavanaugh
joins, and with whom Justice Breyer joins as to all but the first
paragraph, concurring.

															In Employment Div., Dept. of Human Resources
of Ore. v. Smith , 494 U.S.
872 (1990), this Court held that a neutral and generally
applicable law typically does not violate the Free Exercise
Clause—no matter how severely that law burdens religious exercise.
Petitioners, their amici , scholars, and Justices of this
Court have made serious arguments that Smith ought to be
overruled. While history looms large in this debate, I find the
historical record more silent than supportive on the question
whether the founding generation understood the First Amendment to
require religious exemptions from generally applicable laws in at
least some circumstances. In my view, the textual and structural
arguments against Smith are more compelling. As a matter of
text and structure, it is difficult to see why the Free Exercise
Clause—lone among the First Amendment freedoms—offers nothing more
than protection from discrimination.

															Yet what should replace Smith ? The
prevailing assumption seems to be that strict scrutiny would apply
whenever a neutral and generally applicable law burdens religious
exercise. But I am skeptical about swapping Smith ’s
categorical antidiscrimination approach for an equally categorical
strict scrutiny regime, particularly when this Court’s resolution
of conflicts between generally applicable laws and other First
Amendment rights—like speech and assembly—has been much more
nuanced. There would be a number of issues to work through if Smith were overruled. To name a few: Should entities like
Catholic Social Services—which is an arm of the Catholic Church—be
treated differently than individuals? Cf. Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC , 565 U.S.
171 (2012). Should there be a distinction between indirect and
direct burdens on religious exercise? Cf. Braunfeld v. Brown , 366 U.S.
599 , 606–607 (1961) (plurality opinion). What forms of scrutiny
should apply? Compare Sherbert v. Verner , 374 U.S.
398 , 403 (1963) (assessing whether government’s interest is
“ ‘compelling’ ”), with Gillette v. United
States , 401 U.S.
437 , 462 (1971) (assessing whether government’s interest is
“substantial”). And if the answer is strict scrutiny, would
pre- Smith cases rejecting free exercise challenges to
garden-variety laws come out the same way? See Smith , 494
U. S., at 888–889.

															We need not wrestle with these questions in this
case, though, because the same standard applies regardless whether Smith stays or goes. A longstanding tenet of our free
exercise jurisprudence—one that both pre-dates and survives Smith —is that a law burdening religious exercise must
satisfy strict scrutiny if it gives government officials discretion
to grant individualized exemptions. See id., at 884 (law not
generally applicable “where the State has in place a system of
individual exemptions” (citing Sherbert , 374 U. S., at
401, n. 4)); see also Cantwell v. Connecticut , 310 U.S.
296 , 303–307 (1940) (subjecting statute to heightened scrutiny
because exemptions lay in discretion of government official). As
the Court’s opinion today explains, the government contract at
issue provides for individualized exemptions from its
nondiscrimination rule, thus triggering strict scrutiny. And all
nine Justices agree that the City cannot satisfy strict scrutiny. I
therefore see no reason to decide in this case whether Smith should be overruled, much less what should replace it. I join the
Court’s opinion in full. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–123

															_________________

															SHARONELL FULTON, et al., PETITIONERS v. CITY OF PHILADELPHIA, PENNSYLVANIA, et al.

															on writ of certiorari to the united states
court of appeals for the third circuit

															[June 17, 2021]

															Justice Alito, with whom Justice Thomas and
Justice Gorsuch join, concurring in the judgment.

															This case presents an important constitutional
question that urgently calls out for review: whether this Court’s
governing interpretation of a bedrock constitutional right, the
right to the free exercise of religion, is fundamentally wrong and
should be corrected.

															In Employment Div., Dept. of Human Resources
of Ore. v. Smith , 494 U.S.
872 (1990), the Court abruptly pushed aside nearly 40 years of
precedent and held that the First Amendment’s Free Exercise Clause
tolerates any rule that categorically prohibits or commands
specified conduct so long as it does not target religious practice.
Even if a rule serves no important purpose and has a devastating
effect on religious freedom, the Constitution, according to Smith , provides no protection. This severe holding is ripe
for reexamination.

															I

															There is no question that Smith ’s
interpretation can have startling consequences. Here are a few
examples. Suppose that the Volstead Act, which implemented the
Prohibition Amendment, had not contained an exception for
sacramental wine. See Pub. L. 66, §3, 41Stat. 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 first been
rendered unconscious.[ 2 ] That
law would be fine under Smith even though it would outlaw
kosher and halal slaughter.[ 3 ]
Or suppose that a jurisdiction in this country, following the
recommendations of medical associations in Europe, banned the
circumcision of infants.[ 4 ] A
San Francisco ballot initiative in 2010 proposed just
that.[ 5 ] A categorical ban
would be allowed by Smith even though it would prohibit an
ancient and important Jewish and Muslim practice.[ 6 ] Or suppose that this Court or some other
court enforced a rigid rule prohibiting attorneys from wearing any
form of head covering in court. The rule would satisfy Smith even though it would prevent Orthodox Jewish men, Sikh men, and
many Muslim women from appearing. Many other examples could be
added.

															We may hope that legislators and others with
rule- making authority will not go as far as Smith allows,
but the present case shows that the dangers posed by Smith are not hypothetical. The city of Philadelphia (City) has issued an
ultimatum to an arm of the Catholic Church: Either engage in
conduct that the Church views as contrary to the traditional
Christian understanding of marriage or abandon a mission that dates
back to the earliest days of the Church—providing for the care of
orphaned and abandoned children.

															Many people believe they have a religious
obligation to assist such children. Jews and Christians regard this
as a scriptural command,[ 7 ] and
it is a mission that the Catholic Church has undertaken since
ancient times. One of the first known orphanages is said to have
been founded by St. Basil the Great in the fourth century,[ 8 ] and for centuries, the care of
orphaned and abandoned children was carried out by religious
orders.[ 9 ]

															In the New World, religious groups continued to
take the lead. The first known orphanage in what is now the United
States was founded by an order of Catholic nuns in New Orleans
around 1729.[ 10 ] In the
1730s, the first two orphanages in what became the United States at
the founding were established in Georgia by Lutherans and by Rev.
George Whitefield, a leader in the “First Great
Awakening.”[ 11 ] In the late
18th and early 19th centuries, Protestants and Catholics
established orphanages in major cities. One of the first orphanages
in Philadelphia was founded by a Catholic priest in 1798.[ 12 ] The Jewish Society for the
Relief of Orphans and Children of Indigent Parents began its work
in Charleston in 1801.[ 13 ]

															During the latter part of the 19th century and
continuing into the 20th century, the care of children was shifted
from orphanages to foster families,[ 14 ] but for many years, state and local government
participation in this field was quite limited. As one of
Philadelphia’s amici puts it, “[i]nto the early twentieth
century, the care of orphaned and abandoned children in the United
States remained largely in the hands of private charitable and
religious organizations.”[ 15 ] In later years, an influx of federal money[ 16 ] spurred States and local
governments to take a more active role, and today many governments
administer what is essentially a licensing system. As is typical in
other jurisdictions, no private charitable group may recruit, vet,
or support foster parents in Philadelphia without the City’s
approval.

															Whether with or without government
participation, Catholic foster care agencies in Philadelphia and
other cities have a long record of finding homes for children whose
parents are unable or unwilling to care for them. Over the years,
they have helped thousands of foster children and parents, and they
take special pride in finding homes for children who are hard to
place, including older children and those with special
needs.[ 17 ]

															Recently, however, the City has barred Catholic
Social Services (CSS) from continuing this work. Because the
Catholic Church continues to believe that marriage is a bond
between one man and one woman, CSS will not vet same-sex couples.
As far as the record reflects, no same-sex couple has ever
approached CSS, but if that were to occur, CSS would simply refer
the couple to another agency that is happy to provide that
service—and there are at least 27 such agencies in Philadelphia.
App. 171; App. to Pet. for Cert. 137a; see also id., at
286a. Thus, not only is there no evidence that CSS’s policy has
ever interfered in the slightest with the efforts of a same-sex
couple to care for a foster child, there is no reason to fear that
it would ever have that effect.

															None of that mattered to Philadelphia. When a
newspaper publicized CSS’s policy, the City barred CSS from
continuing its foster care work. Remarkably, the City took this
step even though it threatens the welfare of children awaiting
placement in foster homes. There is an acute shortage of foster
parents, both in Philadelphia and in the country at large.[ 18 ] By ousting CSS, the City
eliminated one of its major sources of foster homes. And that’s not
all. The City went so far as to prohibit the placement of any
children in homes that CSS had previously vetted and approved.
Exemplary foster parents like petitioners Sharonell Fulton and Toni
Lynn Simms-Busch are blocked from providing loving homes for
children they were eager to help.[ 19 ] The City apparently prefers to risk leaving children
without foster parents than to allow CSS to follow its religiously
dictated policy, which threatens no tangible harm.

															CSS broadly implies that the fundamental
objective of City officials is to force the Philadelphia
Archdiocese to change its position on marriage. Among other things,
they point to statements by a City official deriding the
Archdiocese’s position as out of step with Pope Francis’s teaching
and 21st century moral views.[ 20 ] But whether or not this is the City’s real objective,
there can be no doubt that Philadelphia’s ultimatum restricts CSS’s
ability to do what it believes the Catholic faith requires.

															Philadelphia argues that its stance is allowed
by Smith because, it claims, a City policy categorically
prohibits foster care agencies from discriminating against same-sex
couples. Bound by Smith , the lower courts accepted this
argument, 320 F. Supp. 3d 661, 682–684 (ED Pa. 2018), 922 F.3d
140, 156–159 (CA3 2019), and we then granted certiorari, 589
U. S. ___ (2020). One of the questions that we accepted for
review is “[w]hether Employment Division v. Smith should be revisited.” We should confront that question.

															Regrettably, the Court declines to do so.
Instead, it reverses based on what appears to be a superfluous (and
likely to be short-lived) feature of the City’s standard annual
contract with foster care agencies. Smith ’s holding about
categorical rules does not apply if a rule permits individualized
exemptions, 494 U. S., at 884, and the majority seizes on the
presence in the City’s standard contract of language giving a City
official the power to grant exemptions. Ante , at 7. The City
tells us that it has never granted such an exemption and has no
intention of handing one to CSS, Brief for City Respondents 36;
App. to Pet. for Cert. 168a, but the majority reverses the decision
below because the contract supposedly confers that never-used
power. Ante , at 10, 15.

															This decision might as well be written on the
dissolving paper sold in magic shops. The City has been adamant
about pressuring CSS to give in, and if the City wants to get
around today’s decision, it can simply eliminate the never-used
exemption power.[ 21 ] If it
does that, then, voilà, today’s decision will vanish—and the
parties will be back where they started. The City will claim that
it is protected by Smith ; CSS will argue that Smith should be overruled; the lower courts, bound by Smith , will
reject that argument; and CSS will file a new petition in this
Court challenging Smith . What is the point of going around
in this circle?

															Not only is the Court’s decision unlikely to
resolve the present dispute, it provides no guidance regarding
similar controversies in other jurisdictions. From 2006 to 2011,
Catholic Charities in Boston, San Francisco, Washington,
D. C., and Illinois ceased providing adoption or foster care
services after the city or state government insisted that they
serve same-sex couples. Although the precise legal grounds for
these actions are not always clear, it appears that they were based
on laws or regulations generally prohibiting discrimination on the
basis of sexual orientation.[ 22 ] And some jurisdictions have adopted
anti-discrimination rules that expressly target adoption
services.[ 23 ] Today’s
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
Philadelphia contractual provision on which the majority’s decision
hangs. The decision will be even less significant in all the other
important religious liberty cases that are bubbling up.

															We should reconsider Smith without
further delay. The correct interpretation of the Free Exercise
Clause is a question of great importance, and Smith ’s
interpretation is hard to defend. It can’t be squared with the
ordinary meaning of the text of the Free Exercise Clause or with
the prevalent understanding of the scope of the free-exercise right
at the time of the First Amendment’s adoption. It swept aside
decades of established precedent, and it has not aged well. Its
interpretation has been undermined by subsequent scholarship on the
original meaning of the Free Exercise Clause. Contrary to what many
initially expected, Smith has not provided a clear-cut rule
that is easy to apply, and experience has disproved the Smith majority’s fear that retention of the Court’s prior
free-exercise jurisprudence would lead to “anarchy.” 494
U. S., at 888.

															When Smith reinterpreted the Free
Exercise Clause, four Justices—Brennan, Marshall, Blackmun, and
O’Connor—registered strong disagreement. Id., at 891, 892
(O’Connor, J., joined in part by Brennan, Marshall, and Blackmun,
JJ., concurring in judgment); id., at 907–908 (Blackmun, J.,
joined by Brennan and Marshall, JJ., dissenting). After joining the
Court, Justice Souter called for Smith to be reexamined. Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S.
520 , 559 (1993) (opinion concurring in part and concurring in
judgment). So have five sitting Justices. Kennedy v. Bremerton School Dist. , 586 U. S. ___, ___–___ (2019)
(Alito, J., joined by Thomas, Gorsuch, and Kavanaugh, JJ.,
concurring in denial of certiorari) (slip op., at 5–6); City of
Boerne v. Flores , 521
U.S. 507 , 566 (1997) (Breyer, J., dissenting). So have some of
the country’s most distinguished scholars of the Religion Clauses.
See, e.g., McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990)
(McConnell, Free Exercise Revisionism); Laycock, The Supreme
Court’s Assault on Free Exercise, and the Amicus Brief That Was
Never Filed, 8 J. L. & Religion 99 (1990). On two separate
occasions, Congress, with virtual unanimity, expressed the view
that Smith ’s interpretation is contrary to our society’s
deep-rooted commitment to religious liberty. In enacting the
Religious Freedom Restoration Act of 1993, 107Stat. 1488 (codified
at 42 U. S. C. §2000bb et seq. ), and the
Religious Land Use and Institutionalized Persons Act of 2000,
114Stat. 803 (codified at 42 U. S. C. §2000cc et seq. ), Congress tried to restore the constitutional
rule in place before Smith was handed down. Those laws,
however, do not apply to most state action, and they leave huge
gaps.

															It is high time for us to take a fresh look at
what the Free Exercise Clause demands.

															II

															A

															To fully appreciate what the Court did in Smith , it is necessary to recall the substantial body of
precedent that it displaced. Our seminal decision on the question
of religious exemptions from generally applicable laws was Sherbert v. Verner , 374 U.S.
398 (1963), which had been in place for nearly four decades
when Smith was decided. In that earlier case, Adell
Sherbert, a Seventh-day Adventist, was fired because she refused to
work on Saturday, her Sabbath Day. 374 U. S. , at 399.
Unable to find other employment that did not require Saturday work,
she applied for unemployment compensation but was rejected because
state law disqualified claimants who “ failed, without good
cause . . . to accept available suitable work when
offered. ” Id ., at 399–401, and n. 3 (internal
quotation marks omitted). The State Supreme Court held that this
denial of benefits did not violate Sherbert’s free-exercise right,
but this Court reversed.

															In an opinion authored by Justice Brennan, the
Court began by surveying the Court’s few prior cases involving
claims for religious exemptions from generally applicable laws. Id., at 402–403. In those decisions, the Court had not
articulated a clear standard for resolving such conflicts, but as
the Sherbert opinion accurately recounted, where claims for
religious exemptions had been rejected, “[t]he conduct or actions
[in question] invariably posed some substantial threat to public
safety, peace or order.” Id ., at 403. (As will be shown
below, this description of the earlier decisions corresponds
closely with the understanding of the scope of the free-exercise
right at the time of the First Amendment’s adoption. See infra , at 29–36.)

															After noting these earlier decisions, the Court
turned to the case at hand and concluded that the denial of
benefits imposed a substantial burden on Sherbert’s free exercise
of religion. 374 U. S., at 404. It “force[d] her to choose
between following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of the precepts of
her religion in order to accept work, on the other hand.” Ibid . As a result, the Court reasoned, the decision below
could be sustained only if it was “justified by a ‘compelling state
interest.’ ” Id ., at 403, 406. The State argued that
its law was needed to prevent “the filing of fraudulent claims by
unscrupulous claimants feigning religious objections,” but Justice
Brennan’s opinion found this justification insufficient because the
State failed to show that “no alternative forms of regulation would
combat such abuses without infringing First Amendment rights.” Id ., at 407.

															The test distilled from Sherbert —that a
law that imposes a substantial burden on the exercise of religion
must be narrowly tailored to serve a compelling interest—was the
governing rule for the next 37 years. Applying that test, the Court
sometimes vindicated free-exercise claims. In Wisconsin v. Yoder , 406 U.S.
205 , 234 (1972), for example, the Court held that a state law
requiring all students to remain in school until the age of 16
violated the free-exercise rights of Amish parents whose religion
required that children leave school after the eighth grade. The
Court acknowledged the State’s “admittedly strong interest in
compulsory education” but concluded that the State had failed to
“show with . . . particularity how [that interest] would
be adversely affected by granting an exemption to the Amish.” Id ., at 236. And in holding that the Amish were entitled to
a special exemption, the Court expressly rejected the
interpretation of the Free Exercise Clause that was later embraced
in Smith . Indeed, the Yoder Court stated this point
again and again: “[T]here are areas of conduct protected by the
Free Exercise Clause of the First Amendment and thus beyond the
power of the State to control, even under regulations of general
applicability ”; “[a] regulation neutral on its face may, in
its application, nonetheless offend the constitutional requirement
for governmental neutrality if it unduly burdens the free
exercise of religion”; insisting that Amish children abide by the
compulsory attendance requirement was unconstitutional even
though it “applie[d] uniformly to all citizens of the State and
d[id] not, on its face, discriminate against religions or a
particular religion, [and was] motivated by legitimate secular
concerns.” Id ., at 220 (emphasis added).

															Other decisions also accepted free-exercise
claims under the Sherbert test. In Thomas v. Review Bd. of Ind. Employment Security Div. , 450
U.S. 707 , 710, 720 (1981), the Court concluded that a State
could not withhold unemployment benefits from a Jehovah’s Witness
who quit his job because he refused to do work that he viewed as
contributing to the production of military weapons. In so holding,
the Court reiterated that “ ‘[a] regulation neutral on its
face may, in its application, nonetheless offend the constitutional
requirement for governmental neutrality if it unduly burdens the
free exercise of religion.’ ” Id ., at 717 (quoting Yoder , 406 U. S., at 220).

															Subsequently, in Hobbie v. Unemployment Appeals Comm’n of Fla ., 480
U.S. 136 , 141 (1987), the Court found that a state rule that
was “ ‘neutral and uniform in its application’ ”
nevertheless violated the Free Exercise Clause under the Sherbert test. A similar violation was found in Frazee v. Illinois Dept. of Employment Security , 489 U.S.
829 (1989).

															Other cases applied Sherbert but found no
violation. In United States v. Lee , 455
U.S. 252 , 258 (1982), the Court held that mandatory
contributions to Social Security were constitutional because they
were “indispensable to the fiscal vitality of the social security
system.” In Gillette v. United States , 401
U.S. 437 , 462 (1971), denying conscientious-objector status to
men whose opposition to war was limited to one particular conflict
was held to be “strictly justified by substantial governmental
interests.” In still other cases, the Court found Sherbert inapplicable either because the challenged law did not implicate
the conduct of the individual seeking an exemption, see Bowen v. Roy , 476 U.S.
693 , 700 (1986); Lyng v. Northwest Indian Cemetery
Protective Assn ., 485
U.S. 439 , 450–451 (1988), or because the case arose in a
context where the government exercised broader authority over
assertions of individual rights, see O’Lone v. Estate of
Shabazz , 482 U.S.
342 , 353 (1987) (prison); Goldman v. Weinberger , 475 U.S.
503 , 506 (1986) (military). None of these decisions questioned
the validity of Sherbert ’s interpretation of the
free-exercise right.

															B

															This is where our case law stood when Smith reached the Court. The underlying situation in Smith was very similar to that in Sherbert . Just as
Adell Sherbert had been denied unemployment benefits due to conduct
mandated by her religion (refraining from work on Saturday), Alfred
Smith and Galen Black were denied unemployment benefits because of
a religious practice (ingesting peyote as part of a worship service
of the Native American Church). 494 U. S., at 874. Applying
the Sherbert test, the Oregon Supreme Court held that this
denial of benefits violated Smith’s and Black’s free-exercise
rights, and this Court granted review.[ 24 ]

															The State defended the denial of benefits under
the Sherbert framework. It argued that it had a compelling
interest in combating the use of dangerous drugs and that
accommodating their use for religious purposes would upset its
enforcement scheme. Brief for Petitioners in Employment Div.,
Dept. of Human Resources v. Smith , No. 88–1213,
O. T. 1988, pp. 5–7, 12, 16. The State never suggested that Sherbert should be overruled. See Brief for Petitioners in
No. 88–1213, at 11. Instead, the crux of its disagreement with
Smith and Black and the State Supreme Court was whether its
interest in preventing drug use could be served by a more narrowly
tailored rule that made an exception for religious use by members
of the Native American Church.

															The question divided the four Justices who
objected to the Smith majority’s rationale. Compare 494
U. S., at 905–907 (O’Connor J., concurring in judgment), with id., at 909–919 (Blackmun, J., joined by Brennan and
Marshall, JJ., dissenting). And the Smith majority wanted no
part of that question. Instead, without briefing or argument on
whether Sherbert should be cast aside, the Court adopted
what it seems to have thought was a clear-cut test that would be
easy to apply: A “generally applicable and otherwise valid” rule
does not violate the Free Exercise Clause “if prohibiting the
exercise of religion . . . is not [its] object
. . . but merely the incidental effect of ” its
operation. 494 U. S., at 878. Other than cases involving rules
that target religious conduct, the Sherbert test was held to
apply to only two narrow categories of cases: (1) those involving
the award of unemployment benefits or other schemes allowing
individualized exemptions and (2) so-called “hybrid rights” cases.
See 494 U. S., at 881–884.[ 25 ]

															To clear the way for this new regime, the
majority was willing to take liberties. Paying little attention to
the terms of the Free Exercise Clause, it was satisfied that its
interpretation represented a “permissible” reading of the text, Smith , 494 U. S., at 878, and it did not even stop to
explain why that was so. The majority made no effort to ascertain
the original understanding of the free-exercise right, and it
limited past precedents on grounds never previously suggested. Sherbert , Thomas , and Hobbie were placed in a
special category because they concerned the award of unemployment
compensation, Smith , 494 U. S., at 883, and Yoder was distinguished on the ground that it involved both
a free-exercise claim and a parental-rights claim, Smith, 494 U. S., at 881. Not only did these distinctions lack
support in prior case law, the issue in Smith itself could
easily be viewed as falling into both of these special categories.
After all, it involved claims for unemployment benefits, and
members of the Native American Church who ingest peyote as part of
a religious ceremony are surely engaging in expressive conduct that
falls within the scope of the Free Speech Clause. See, e.g. , Texas v. Johnson , 491 U.S.
397 , 404 (1989).

															None of these obstacles stopped the Smith majority from adopting its new rule and displacing decades of
precedent. The majority feared that continued adherence to that
case law would “cour[t] anarchy” because it “would open the
prospect of constitutionally required religious exemptions from
civic obligations of almost every conceivable kind.” 494
U. S., at 888. The majority recognized that its new
interpretation would place small religious groups at a “relative
disadvantage,” but the majority found that preferable to the
problems it envisioned if the Sherbert test had been
retained . 494 U. S., at 890.

															Four Justices emphatically disagreed with Smith ’s reinterpretation of the Free Exercise Clause.
Justice O’Connor wrote that this new reading “dramatically
depart[ed] from well-settled First Amendment jurisprudence” and was
“incompatible with our Nation’s fundamental commitment to
individual religious liberty.” 494 U. S., at 891 (opinion
concurring in judgment). Justices Brennan, Marshall, and Blackmun
protested that the majority had “mischaracteriz[ed]” and
“discard[ed]” the Court’s free-exercise jurisprudence on its way to
“perfunctorily dismiss[ing]” the “settled and inviolate principle”
that state laws burdening religious freedom may stand only if
“justified by a compelling interest that cannot be served by less
restrictive means.” Id., at 907–908 (Blackmun, J., joined by
Brennan and Marshall, JJ., dissenting). Smith ’s impact was quickly felt, and
Congress was inundated with reports of the decision’s
consequences.[ 26 ] In
response, it attempted to restore the Sherbert test. In the
House, then-Representative Charles Schumer introduced a bill that
made a version of that test applicable to all actions taken by the
Federal Government or the States. H. R. 1308, 103d Cong., 1st
Sess. (1993). This bill, which eventually became the Religious
Freedom Restoration Act (RFRA), passed in the House without
dissent, was approved in the Senate by a vote of 97 to 3, and was
enthusiastically signed into law by President Clinton. 139 Cong.
Rec. 27239–27341 (1993) (House voice vote); id ., at 26416
(Senate vote); Remarks on Signing the Religious Freedom Restoration
Act of 1993, 29 Weekly Comp. of Pres. Doc. 2377 (1993). And when
this Court later held in City of Boerne , 521 U.S.
507 , that Congress lacked the power under the 14th Amendment to
impose these rules on the States, Congress responded by enacting
the Religious Land Use and Institutionalized Persons Act (RLUIPA)
under its spending power and its power to regulate interstate
commerce. See 114Stat. 803. Introduced in the Senate by Sen. Orrin
Hatch and cosponsored by Sen. Edward Kennedy, RLUIPA imposed the
same rules as RFRA on land use and prison regulations. S. 2869,
106th Cong., 2d Sess. (2000); 42 U. S. C. §2000cc et
seq ; 146 Cong. Rec. 16698 (2000). RLUIPA passed both Houses of
Congress without a single negative vote and, like RFRA, was signed
by President Clinton. Id ., at 16703, 16623; Statement on
Signing the Religious Land Use and Institutionalized Persons Act of
2000, 36 Weekly Comp. of Pres. Doc. 2168 (2000).

															RFRA and RLUIPA have restored part of the
protection that Smith withdrew, but they are both limited in
scope and can be weakened or repealed by Congress at any time. They
are no substitute for a proper interpretation of the Free Exercise
Clause.

															III

															A

															That project must begin with the
constitutional text. In Martin v. Hunter’s Lessee , 1
Wheat. 304, 338–339 (1816), Justice Story laid down the guiding
principle: “If the text be clear and distinct, no restriction upon
its plain and obvious import ought to be admitted, unless the
inference be irresistible.” And even though we now have a thick
body of precedent regarding the meaning of most provisions of the
Constitution, our opinions continue to respect the primacy of the
Constitution’s text. See, e.g ., Chiafalo v. Washington , 591 U. S. ___, ___–___ (2020) (slip op., at
9–13) (starting with the text of Art. II, §1, before considering
historical practice); Knick v. Township of Scott , 588
U. S. ___, ___ (2019) (slip op., at 6) (beginning analysis
with the text of the Takings Clause); Gamble v. United
States , 587 U. S. ___, ___–___ (2019) (slip op., at 3–4)
(starting with the text of the Fifth Amendment before turning to
history and precedent); City of Boerne , 521 U. S., at
519 (“In assessing the breadth of §5’s enforcement power, we begin
with its text”). Smith, however, paid shockingly little
attention to the text of the Free Exercise Clause. Instead of
examining what readers would have understood its words to mean when
adopted, the opinion merely asked whether it was “permissible” to
read the text to have the meaning that the majority favored. 494
U. S., at 878. This strange treatment of the constitutional
text cannot be justified—and is especially surprising since it
clashes so sharply with the way in which Smith ’s author,
Justice Scalia, generally treated the text of the Constitution
(and, indeed, with his entire theory of legal interpretation). As
he put it, “What I look for in the Constitution is precisely what I
look for in a statute: the original meaning of the text.” A.
Scalia, A Matter of Interpretation 38 (1997). See also NLRB v. Noel Canning , 573 U.S.
513 , 575–583 (2014) (Scalia, J., concurring in judgment); Stop the Beach Renourishment, Inc. v. Florida Dept. of
Environmental Protection , 560 U.S.
702 , 722 (2010) (plurality opinion of Scalia, J.); Maryland v. Craig , 497 U.S.
836 , 860–861 (1990) (Scalia, J., dissenting).

															Justice Scalia’s opinion for the Court in District of Columbia v. Heller , 554 U.S.
570 (2008), is a prime example of his usual approach, and it is
a model of what a reexamination of the Free Exercise Clause should
entail. In Heller , after observing that the “Constitution
was written to be understood by the voters,” Justice Scalia’s
opinion begins by presuming that the “words and phrases” of the
Second Amendment carry “their normal and ordinary . . .
meaning.” Id ., at 576 (internal quotation marks omitted).
The opinion then undertakes a careful examination of all the
Amendment’s key terms. It does not simply ask whether its
interpretation of the text is “permissible.” Smith , 494
U. S., at 878.

															B

															Following the sound approach that the Court
took in Heller , we should begin by considering the “normal
and ordinary” meaning of the text of the Free Exercise Clause:
“Congress shall make no law . . . prohibiting the free exercise [of
religion].” Most of these terms and phrases—“Congress,”[ 27 ] “shall make,” “no law,”[ 28 ] and “religion”[ 29 ]—do not require discussion for present
purposes, and we can therefore focus on what remains: the term
“prohibiting” and the phrase “the free exercise of religion.”

															Those words had essentially the same meaning in
1791 as they do today. “To prohibit” meant either “[t]o forbid” or
“to hinder.” 2 S. Johnson, A Dictionary of the English Language
(1755) (Johnson (1755)).[ 30 ]
The term “exercise” had both a broad primary definition
(“[p]ractice” or “outward performance”) and a narrower secondary
one (an “[a]ct of divine worship whether publick or private”). 1 id .[ 31 ] (The Court
long ago declined to give the First Amendment’s reference to
“exercise” this narrow reading. See, e.g ., Cantwell v. Connecticut, 310 U.S.
296 , 303–304 (1940).) And “free,” in the sense relevant here,
meant “unrestrained.” 1 Johnson (1755).[ 32 ]

															If we put these definitions together, the
ordinary meaning of “prohibiting the free exercise of religion” was
(and still is) forbidding or hindering unrestrained religious
practices or worship. That straightforward understanding is a far
cry from the interpretation adopted in Smith . It certainly
does not suggest a distinction between laws that are generally
applicable and laws that are targeted.

															As interpreted in Smith , the Clause is
essentially an anti-discrimination provision: It means that the
Federal Government and the States cannot restrict conduct that
constitutes a religious practice for some people unless it imposes
the same restriction on everyone else who engages in the same
conduct. Smith made no real attempt to square that
equal-treatment interpretation with the ordinary meaning of the
Free Exercise Clause’s language, and it is hard to see how that
could be done.

															The key point for present purposes is that the
text of the Free Exercise Clause gives a specific group of people
(those who wish to engage in the “exercise of religion”) the right
to do so without hindrance. The language of the Clause does not tie
this right to the treatment of persons not in this group.

															The oddity of Smith ’s interpretation can
be illustrated by considering what the same sort of interpretation
would mean if applied to other provisions of the Bill of Rights.
Take the Sixth Amendment, which gives a specified group of people
(the “accused” in criminal cases) a particular right (the right to
the “Assistance of Counsel for [their] defence”). Suppose that
Congress or a state legislature adopted a law banning counsel in all litigation , civil and criminal. Would anyone doubt that
this law would violate the Sixth Amendment rights of criminal
defendants?

															Or consider the Seventh Amendment, which gives a
specified group of people (parties in most civil “Suits at common
law”) “the right of trial by jury.” Would there be any question
that a law abolishing juries in all civil cases would
violate the rights of parties in cases that fall within the Seventh
Amendment’s scope?

															Other examples involving language similar to
that in the Free Exercise Clause are easy to imagine. Suppose that
the amount of time generally allotted to complete a state bar exam
is 12 hours but that applicants with disabilities secure a consent
decree allowing them an extra hour. Suppose that the State later
adopts a rule requiring all applicants to complete the exam in 11
hours. Would anyone argue that this was consistent with the
decree?

															Suppose that classic car enthusiasts secure the
passage of a state constitutional amendment exempting cars of a
certain age from annual safety inspections, but the legislature
later enacts a law requiring such inspections for all vehicles
regardless of age. Can there be any doubt that this would violate
the state constitution?

															It is not necessary to belabor this point
further. What all these examples show is that Smith ’s
interpretation conflicts with the ordinary meaning of the First
Amendment’s terms.

															C

															Is there any way to bring about a
reconciliation? The short answer is “no.” Survey all the briefs
filed in support of respondents (they total more than 40) and three
decades of law review articles, and what will you find?
Philadelphia’s brief refers in passing to one possible argument—and
the source it cites is a law review article by one of Smith ’s leading academic critics, Professor Michael W.
McConnell. See Brief for City Respondents 49 (citing McConnell,
Free Exercise Revisionism 1115). Trying to see if there was any way
to make Smith fit with the constitutional text, Professor
McConnell came up with this argument—but then rejected it.
McConnell , Free Exercise Revisionism 1115–1116.

															The argument goes as follows: Even if a law
prohibits conduct that constitutes an essential religious practice,
it cannot be said to “prohibit” the free exercise of religion
unless that was the lawmakers’ specific object.

															This is a hair-splitting interpretation. It
certainly does not represent the “normal and ordinary” meaning of
the Free Exercise Clause’s terms. See Heller , 554
U. S., at 576. Consider how it would play out if applied to
some of the hypothetical laws discussed at the beginning of this
opinion. A law categorically banning all wine would not “prohibit”
the celebration of a Catholic Mass? A law categorically forbidding
the slaughter of a conscious animal would not “prohibit” kosher and
halal slaughterhouses? A rule categorically banning any head
covering in a courtroom would not “prohibit” appearances by
orthodox Jewish men, Sikh men, and Muslim women who wear hijabs? It
is no wonder that Smith ’s many defenders have almost
uniformly foregone this argument.

															D

															Not only is it difficult to square Smith ’s interpretation with the terms of the Free Exercise
Clause, the absence of any language referring to equal treatment is
striking. If equal treatment was the objective, why didn’t Congress
say that? And since it would have been simple to cast the Free
Exercise Clause in equal-treatment terms, why would the state
legislators who voted for ratification have read the Clause that
way?

															It is not as if there were no models that could
have been used. Other constitutional provisions contain
non-discrimination language. For example, Art. I, §9, cl. 6,
provides that “[n]o Preference shall be given by any Regulation of
Commerce or Revenue to the Ports of one State over those of
another.” Under Art. IV, §2, cl. 1, “[t]he Citizens of each
State shall be entitled to all Privileges and Immunities of
Citizens in the several States.” Article V provides that “no State,
without its Consent, shall be deprived of its equal Suffrage in the
Senate.” Language mandating equal treatment of one sort or another
also appeared in the religious liberty provisions of colonial
charters and state constitutions.[ 33 ] But Congress eschewed those models. The contrast
between these readily available anti-discrimination models and the
language that appears in the First Amendment speaks volumes.

															IV

															A

															While we presume that the words of the
Constitution carry their ordinary and normal meaning, we cannot
disregard the possibility that some of the terms in the Free
Exercise Clause had a special meaning that was well understood at
the time. Heller , again, provides a helpful example. Heller did not hold that the right to keep and bear arms
means that everyone has the right to keep and bear every type of
weaponry in all places and at all times. Instead, it held that the
Second Amendment protects a known right that was understood to have
defined dimensions. 554 U. S., at 626–628.

															Following Heller ’s lead, we must ask
whether the Free Exercise Clause protects a right that was known at
the time of adoption to have defined dimensions. But in doing so,
we must keep in mind that there is a presumption that the words of
the Constitution are to be interpreted in accordance with their
“normal and ordinary” sense. Id. , at 576 (internal quotation
marks omitted). Anyone advocating a different reading must overcome
that presumption.

															B

															1

															What was the free-exercise right understood to
mean when the Bill of Rights was ratified? And in particular, was
it clearly understood that the right simply required equal
treatment for religious and secular conduct? When Smith was
decided, scholars had not devoted much attention to the original
meaning of the Free Exercise Clause, and the parties’ briefs
ignored this issue, as did the opinion of the Court. Since then,
however, the historical record has been plumbed in detail,[ 34 ] and we are now in a good
position to examine how the free-exercise right was understood when
the First Amendment was adopted.

															By that date, the right to religious liberty
already had a long, rich, and complex history in this country. What
appears to be the first “free exercise” provision was adopted in
1649. Prompted by Lord Baltimore,[ 35 ] the Maryland Assembly enacted a provision protecting
the right of all Christians to engage in “the free exercise” of
religion.[ 36 ] Rhode Island’s
1663 Charter extended the right to all. See Charter of Rhode Island
and Providence Plantations (1663), in Cogan 34. Early colonial
charters and agreements in Carolina, Delaware, New Jersey, New
York, and Pennsylvania also recognized the right to free
exercise,[ 37 ] and by 1789,
every State except Connecticut had a constitutional provision
protecting religious liberty. McConnell, Origins 1455. In fact, the
Free Exercise Clause had more analogs in State Constitutions than
any other individual right. See Calabresi, Agudo, & Dore, State
Bills of Rights in 1787 and 1791: What Individual Rights Are Really
Deeply Rooted in American History and Tradition? 85 S. Cal. L. Rev.
1451, 1463–1464, 1472–1473 (2012). In all of those State
Constitutions, freedom of religion enjoyed broad protection, and
the right “was universally said to be an unalienable right.”
McConnell, Origins 1456.[ 38 ]

															2

															What was this right understood to protect? In
seeking to discern that meaning, it is easy to get lost in the
voluminous discussion of religious liberty that occurred during the
long period from the first British settlements to the adoption of
the Bill of Rights. Many different political figures, religious
leaders, and others spoke and wrote about religious liberty and the
relationship between the authority of civil governments and
religious bodies. The works of a variety of thinkers were
influential, and views on religious liberty were informed by
religion, philosophy, historical experience, particular
controversies and issues, and in no small measure by the practical
task of uniting the Nation. The picture is complex.

															For present purposes, we can narrow our focus
and concentrate on the circumstances that relate most directly to
the adoption of the Free Exercise Clause. As has often been
recounted, critical state ratifying conventions approved the
Constitution on the understanding that it would be amended to
provide express protection for certain fundamental rights,[ 39 ] and the right to religious
liberty was unquestionably one of those rights. As noted, it was
expressly protected in 12 of the 13 State Constitutions, and these
state constitutional provisions provide the best evidence of the
scope of the right embodied in the First Amendment.

															When we look at these provisions, we see one
predominant model. This model extends broad protection for
religious liberty but expressly provides that the right does not
protect conduct that would endanger “the public peace” or
“safety.”

															This model had deep roots in early colonial
charters. It appeared in the Rhode Island Charter of 1663,[ 40 ] the Second Charter of Carolina
in 1665,[ 41 ] and the New
York Act Declaring Rights & Priviledges in 1691.[ 42 ]

															By the founding, more than half of the State
Constitutions contained free-exercise provisions subject to a
“peace and safety” carveout or something similar. The Georgia
Constitution is a good example. It provided that “[a]ll persons
whatever shall have the free exercise of their religion; provided
it be not repugnant to the peace and safety of the State.”
Ga. Const., Art. LVI (1777), in Cogan 16 (emphasis added). The
founding era Constitutions of Delaware, Maryland, Massachusetts,
New Hampshire, New York, Rhode Island, and South Carolina all
contained broad protections for religious exercise, subject to
limited peace-and-safety carveouts.[ 43 ]

															The predominance of this model is highlighted by
its use in the laws governing the Northwest Territory. In the
Northwest Ordinance of 1787, the Continental Congress provided that
“[n]o person, demeaning himself in a peaceable and orderly
manner , shall ever be molested on account of his mode of
worship, or religious sentiments, in the said territory.” Art. I
(emphasis added). After the ratification of the Constitution, the
First Congress used similar language in the Northwest Ordinance of
1789. See Act of Aug. 7, 1789, 1Stat. 52 (reaffirming Art. I of
Northwest Ordinance of 1787). Since the First Congress also framed
and approved the Bill of Rights, we have often said that its
apparent understanding of the scope of those rights is entitled to
great respect. See, e.g., Town of Greece v. Galloway , 572 U.S.
565 , 575–578 (2014); Harmelin v. Michigan , 501 U.S.
957 , 980 (1991) (opinion of Scalia, J.); Marsh v. Chambers , 463 U.S.
783 , 786–792 (1983); Carroll v. United States , 267 U.S.
132 , 150–151 (1925).

															3

															The model favored by Congress and the state
legislatures—providing broad protection for the free exercise of
religion except where public “peace” or “safety” would be
endangered—is antithetical to Smith. If, as Smith held, the free-exercise right does not require any religious
exemptions from generally applicable laws, it is not easy to
imagine situations in which a public-peace-or-safety carveout would
be necessary. Legislatures enact generally applicable laws to
protect public peace and safety. If those laws are thought to be
sufficient to address a particular type of conduct when engaged in
for a secular purpose, why wouldn’t they also be sufficient to
address the same type of conduct when carried out for a religious
reason? Smith ’s defenders have no good answer.
Their chief response is that the free-exercise provisions that
included these carveouts were tantamount to the Smith rule
because any conduct that is generally prohibited or generally
required can be regarded as necessary to protect public peace or
safety. See City of Boerne , 521 U. S., at 539 (Scalia,
J., concurring in part) (“At the time these provisos were enacted,
keeping ‘peace’ and ‘order’ seems to have meant, precisely, obeying
the laws”).

															This argument gives “public peace and safety” an
unnaturally broad interpretation. Samuel Johnson’s 1755 dictionary
defined “peace” as: “1. Respite from war. . . . 2.
Quiet from suits or disturbances. . . . 3. Rest from
any commotion. 4. Stil[l]ness from riots or
tumults. . . . 5. Reconciliation of
differences. . . . 6. A state not
hostile. . . . 7. Rest; quiet; content; freedom from
terrour; heavenly rest. . . .” 2 Johnson.[ 44 ]

															In ordinary usage, the term “safety” was
understood to mean: “1. Freedom from danger. . . . 2.
Exemption from hurt. 3. Preservation from hurt. . . .” Ibid .[ 45 ]

															When “peace” and “safety” are understood in this
way, it cannot be said that every violation of every law imperils
public “peace” or “safety.” In 1791 (and today), violations of many
laws do not threaten “war,” “disturbances,” “commotion,” “riots,”
“terrour,” “danger,” or “hurt.” Blackstone catalogs numerous
violations that do not threaten any such harms, including
“cursing”;[ 46 ] refusing to
pay assessments for “the repairs of sea banks and sea walls” and
the “cleansing of rivers, public streams, ditches and other
conduits”;[ 47 ] “retaining a
man’s hired servant before his time is expired”;[ 48 ] an attorney’s failure to show up for a
trial;[ 49 ] the unauthorized
“solemniz[ing of a] marriage in any other place besides a church,
or public chapel wherein banns have been usually
published”;[ 50 ]
“transporting and seducing our artists to settle abroad”;[ 51 ] engaging in the conduct of “a
common scold”;[ 52 ] and
“exercis[ing] a trade in any town, without having previously served
as an apprentice for seven years.”[ 53 ]

															In contrast to these violations, Blackstone
lists “offences against the public peace.” 4 Commentaries on the
Laws of England 142–153 (1769). Those include: riotous assembling
of 12 persons or more; unlawful hunting; anonymous threats and
demands; destruction of public floodgates, locks, or sluices on a
navigable river; public fighting; riots or unlawful assemblies;
“tumultuous” petitioning; forcible entry or detainer; riding or
“going armed” with dangerous or unusual weapons; spreading false
news to “make discord between the king and nobility, or concerning
any great man of the realm”; spreading “false and pretended”
prophecies to disturb the peace; provoking breaches of the peace;
and libel “to provoke . . . wrath, or expose [an individual] to
public hatred, contempt, and ridicule.” Ibid. (emphasis
deleted); see also McConnell, Freedom from Persecution 835–836.
These offenses might inform what constitutes actual or threatened
breaches of public peace or safety in the ordinary sense of those
terms.[ 54 ] But the ordinary
meaning of offenses that threaten public peace or safety must be
stretched beyond the breaking point to encompass all violations of any law.[ 55 ]

															C

															That the free-exercise right included the
right to certain religious exemptions is strongly supported by the
practice of the Colonies and States. When there were important
clashes between generally applicable laws and the religious
practices of particular groups, colonial and state legislatures
were willing to grant exemptions—even when the generally applicable
laws served critical state interests.

															Oath exemptions are illustrative. Oath
requirements were considered “indispensable” to civil society
because they were thought to ensure that individuals gave truthful
testimony and fulfilled commitments. McConnell, Origins 1467.
Quakers and members of some other religious groups refused to take
oaths, ibid. , and therefore a categorical oath requirement
would have resulted in the complete exclusion of these Americans
from important civic activities, such as testifying in court and
voting, see ibid. Tellingly, that is not what happened. In the
1600s, Carolina allowed Quakers to enter a pledge rather than
swearing an oath. Ibid. In 1691, New York permitted Quakers
to give testimony after giving an affirmation. Ibid. Massachusetts did the same in 1743. Id., at 1467–1468. In
1734, New York also allowed Quakers to qualify to vote by making an
affirmation, and in 1740, Georgia granted an exemption to Jews,
allowing them to omit the phrase “ ‘on the faith of a
Christian’ ” from the State’s naturalization oath. Id., at 1467. By 1789, almost all States had passed oath exemptions. Id. , at 1468.

															Some early State Constitutions and declarations
of rights formally provided oath exemptions for religious
objectors. For instance, the Maryland Declaration of Rights of 1776
declared that Quakers, Mennonites, and members of some other
religious groups “ought to be allowed to make their solemn
affirmation” instead of an oath. §36, in Cogan 18. Similarly, the
Massachusetts Constitution of 1780 permitted Quakers holding
certain government positions to decline to take the prescribed oath
of office, allowing affirmations instead. Pt. II, ch. VI, Art. I,
in id., at 22. The Federal Constitution likewise permits
federal and state officials to make either an “Oath or Affirmation, to support this Constitution.” Art. VI, cl. 3
(emphasis added); see also Art. I, §3, cl. 6; Art. II, §1, cl.
8.

															Military conscription provides an even more
revealing example. In the Colonies and later in the States,
able-bodied men of a certain age were required to serve in the
militia, see Heller , 554 U. S., at 595–596, but
Quakers, Mennonites, and members of some other religious groups
objected to militia service on religious grounds, see McConnell,
Origins 1468. The militia was regarded as essential to the security
of the State and the preservation of freedom, see Heller ,
554 U. S., at 597–598, but colonial governments nevertheless
granted religious exemptions, see McConnell, Origins 1468. Rhode
Island, Maryland, North Carolina, and New Hampshire did so in the
founding era. Ibid. In 1755, New York permitted a
conscientious objector to obtain an exemption if he paid a fee or
sent a substitute. Ibid. Massachusetts adopted a similar law
two years later, and Virginia followed suit in 1776. Ibid. ,
and n. 297.

															The Continental Congress also granted exemptions
to religious objectors because conscription would do “violence to
their consciences.” Resolution of July 18, 1775, in 2 Journals of
the Continental Congress, 1774–1789, p. 189 (W. Ford ed. 1905)
(quoted in McConnell, Origins 1469, and n. 299). This decision is
especially revealing because during that time the Continental Army
was periodically in desperate need of soldiers,[ 56 ] the very survival of the new Nation

															often seemed in danger,[ 57 ] and the Members of Congress faced bleak
personal prospects if the war was lost.[ 58 ] Yet despite these stakes, exemptions were
granted.

															Colonies with established churches also
permitted 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 exemptions to
Huguenots in 1700, German Lutherans in 1730, and dissenters from
the Church of England in 1776. Ibid. ; see also S. Cobb, The
Rise of Religious Liberty in America 98, 492 (1902). Beginning in
1692, New Hampshire exempted those who could prove they were
“ ‘conscientiously’ ” of a “ ‘different
persuasion,’ ” regularly attended their own religious
services, and contributed financially to their faith.
McConnell , Origins 1469 . Various other religious exemptions were also
provided. North Carolina and Maryland granted exemptions from the
requirement that individuals remove their hats in court, a gesture
that Quakers viewed as an impermissible showing of respect to a
secular authority. Id. , at 1471–1472. And Rhode Island
exempted Jews from some marriage laws. Id. , at 1471.

															In an effort to dismiss the significance of
these legislative exemptions, it has been argued that they show
only what the Constitution permits, not what it requires. City
of Boerne , 521 U. S., at 541 (opinion of Scalia, J.). But
legislatures provided those accommodations before the concept of
judicial review took hold, and their actions are therefore strong
evidence of the founding era’s understanding of the free-exercise
right. See McConnell , Free Exercise Revisionism 1119. Cf. Heller , 554 U. S., at 600–603 (looking to state
constitutions that preceded the adoption of the Second
Amendment).

															D

															Defenders of Smith have advanced
historical arguments of their own, but they are unconvincing, and
in any event, plainly insufficient to overcome the ordinary meaning
of the constitutional text.

															1

															One prominent argument points to language in
some founding-era charters and constitutions prohibiting laws or
government actions that were taken “for” or “on account” of
religion. See City of Boerne , 521 U. S., at 538–539
(opinion of Scalia, J.). That phrasing, it is argued, reaches only
measures that target religion, not neutral and generally applicable
laws. This argument has many flaws.

															No such language appears in the Free Exercise
Clause, and in any event, the argument rests on a crabbed reading
of the words “for” or “on account of ” religion. As Professor
McConnell has explained, “[i]f a member of the Native American
Church is arrested for ingesting peyote during a religious
ceremony, then he surely is molested ‘for’ or ‘on account of ’
his religious practice—even though the law under which he is
arrested is neutral and generally applicable.” Freedom From
Persecution 834.

															This argument also ignores the full text of many
of the provisions on which it relies. Id., at 833–834. While
some protect against government actions taken “for” or “on account
of ” religion, they do not stop there. Instead, they go on to
provide broader protection for religious liberty. See, e.g., Maryland Act Concerning Religion (1649), in Cogan 17 (guaranteeing
residents not be “troubled . . . in the free exercise [of
religion]”); New York Constitution (1777), in id. , at 26
(guaranteeing “the free Exercise and Enjoyment of religious
Profession and Worship”).

															2

															Another argument advanced by Smith ’s
defenders relies on the paucity of early cases “refusing to enforce
a generally applicable statute because of its failure to make
accommodation,” City of Boerne , 521 U. S., at 542
(opinion of Scalia, J.). If exemptions were thought to be
constitutionally required, they contend, we would see many such
cases.

															There might be something to this argument if
there were a great many cases denying exemptions and few granting
them, but the fact is that diligent research has found only a
handful of cases going either way. Commentators have discussed the
dearth of cases, and as they note, there are many possible
explanations.[ 59 ] Early 19th
century legislation imposed only limited restrictions on private
conduct, and this minimized the chances of conflict between
generally applicable laws and religious practices. The principal
conflicts that arose—involving oaths, conscription, and taxes to
support an established church—were largely resolved by state
constitutional provisions and laws granting exemptions. And the
religious demographics of the time decreased the likelihood of
conflicts. The population was overwhelmingly Christian and
Protestant, the major Protestant denominations made up the great
bulk of the religious adherents,[ 60 ] and other than with respect to the issue of taxes to
support an established church, it is hard to think of conflicts
between the practices of the members of these denominations and
generally applicable laws that a state legislature might have
enacted.

															Members of minority religions are most likely to
encounter such conflicts, and the largest minority group, the
Quakers, who totaled about 10% of religious adherents,[ 61 ] had received exemptions for the
practices that conflicted with generally applicable laws. As will
later be shown, see infra , at 46–50, the small number of
religious-exemption cases that occurred during the early 19th
century involved members of what were then tiny religious
groups—such as Catholics, Jews, and Covenanters.[ 62 ] Given the size of these groups, one
would not expect a large number of cases. And where cases arose,
the courts’ decisions may not have always been reported. Barclay,
The Historical Origins of Judicial Religious Exemptions, 96 Notre
Dame L. Rev. 55, 70 (2020).

															3

															When the body of potentially relevant cases is
examined, they provide little support for Smith ’s
interpretation of the free-exercise right. Not only are these
decisions few in number, but they reached mixed results. In
addition, some are unreasoned; some provide ambiguous explanations;
and many of the cases denying exemptions were based on grounds that
do not support Smith. The most influential early case granting an
exemption was People v. Philips , 1 W. L. J. 109,
112–113 (Gen. Sess., N. Y. 1813), where the court held that a
Catholic priest could not be compelled to testify about a
confession. The priest’s refusal, the court reasoned, was protected
by the state constitutional right to the free exercise of religion
and did not fall within the exception for “acts of licentiousness”
and “practices inconsistent with the peace or safety of th[e]
State.”[ 63 ] This, of course,
is exactly the understanding of the free-exercise right that is
seen in the founding era State Constitutions.

															Although Philips was not officially
reported, knowledge of the decision appears to have spread widely.
Four years later, another New York court implicitly reaffirmed the
principle Philips recognized but found the decision
inapplicable because the Protestant minister who was called to
testify did not feel a religious obligation to refuse. See Smith ’ s Case , 2 N. Y. City-Hall Recorder 77, 80,
and n. (1817); McConnell, Origins 1505–1506; Walsh 40–41.

															In 1827, a South Carolina court relied on Philips as support for its decision to grant an exemption
from a state law relied on to bar the testimony of a witness who
denied a belief in punishment after death for testifying falsely,
and the State’s newly constituted high court approved that opinion. Farnandis v. Henderson , 1 Carolina L. J. 202, 213,
214 (1827).[ 64 ]

															In Commonwealth v. Cronin , 2 Va.
Cir. 488, 498, 500, 505 (1855), a Virginia court followed Philips and held that a priest’s free-exercise right
required an exemption from the general common law rule compelling a
witness to “disclose all he may know” when giving testimony.

															On the other side of the ledger, the most
prominent opponent of exemptions was John Bannister Gibson of the
Pennsylvania Supreme Court. Today, Gibson is best known for his
dissent in Eakin v . Raub , 12 Serg. & Rawle 330,
355–356 (1825), which challenged John Marshall’s argument for
judicial review in Marbury v . Madison , 1 Cranch 137
(1803). See McConnell, Origins 1507. Three years after Eakin , Gibson’s dissent in Commonwealth v. Lesher , 17 Serg. & Rawle 155 (Pa. 1828), advanced a
related argument against decisions granting religious exemptions.
Gibson agreed that the state constitutional provision protecting
religious liberty conferred the right to do or forbear from doing
any act “not prejudicial to the public weal,” but he argued that
judges had no authority to override legislative judgments about
what the public weal required. Id., at 160–161 (emphasis
deleted).

															Three years later, he made a similar argument in
dicta in Philips’s Executors v. Gratz , 2 Pen. &
W. 412, 412–413 (Pa. 1831), where a Jewish plaintiff had taken a
non-suit (agreed to a dismissal) in a civil case scheduled for
trial on a Saturday. Gibson’s opinion for the Court set aside the
non-suit on other grounds but rejected the plaintiff ’s
religious objection to trial on Saturday. Id., at 416–417.
He proclaimed that a citizen’s obligation to the State must always
take precedence over any religious obligation, and he expressly
registered disagreement with the New York court’s decision in Philips . Id., at 417.

															In South Carolina, an exemption claim was denied
in State v. Willson , 13 S. C. L. 393, 394–397 (1823),
where the court refused to exempt a member of the Covenanters
religious movement from jury service. Because Covenanters opposed
the Constitution on religious grounds, they refused to engage in
activities, such as jury service and voting, that required an oath
to support the Constitution or otherwise enlisted their
participation in the Nation’s scheme of government.[ 65 ] It is possible to read the opinion in Willson as embodying something like the Smith rule—or
as concluding that granting the exemption would have opened the
floodgates and undermined public peace and safety. See 13 S. C. L.,
at 395 (“who could distinguish . . . between the pious
asseveration of a holy man and that of an accomplished villain”).
But if Willson is read as rejecting religious exemptions,
South Carolina’s reconstituted high court reversed that position in Farnandis .[ 66 ]

															Other cases denying exemptions are even less
helpful to Smith ’s defenders. Three decisions rejected
challenges to Sunday closing laws by merchants who celebrated
Saturday as the Sabbath, but at least two of these were based on
the court’s conclusion that the asserted religious belief was
unfounded. See City Council of Charleston v. Benjamin , 33 S. C. L. 508, 529 (1846) (“There is
. . . no violation of the Hebrew’s religion, in requiring
him to cease from labor on another day than his Sabbath, if he be
left free to observe the latter according to his religion”
(emphasis deleted)); Commonwealth v. Wolf , 3 Serg.
& Rawle 47, 50, 51 (Pa. 1817) (“[T]he Jewish Talmud
. . . asserts no such doctrine” and the objection was
made “out of mere caprice”). That reasoning is contrary to a
principle that Smith reaffirmed: “Repeatedly and in many
different contexts, we have warned that courts must not presume to
determine . . . the plausibility of a religious claim.”
494 U. S., at 887.

															A third Sunday closing law decision appears to
rest at least in part on a similar ground. See Specht v. Commonwealth , 8 Pa. 312 (1848). The court observed that the
merchant’s conscience rights might have been violated if his
religion actually required him to work on Sunday, but the court
concluded that the commandment to keep holy the Sabbath had never
been understood to impose “an imperative obligation to fill up each
day of the other six with some worldly employment.” Id ., at
326.

															Other cases cited as denying exemptions were
decided on nebulous grounds. In Stansbury v . Marks , 2
Dall. 213 (Pa. 1793), a decision of the Pennsylvania Supreme Court,
the case report in its entirety states: “In this cause (which was
tried on Saturday, the 5th of April) the defendant offered Jonas
Phillips, a Jew, as a witness; but he refused to be sworn, because
it was his Sabbath. The Court, therefore, fined him £10; but the
defendant, afterwards, waving the benefit of his testimony, he was
discharged from the fine.” (Emphasis deleted.) What can be deduced
from this cryptic summary? Was the issue mooted when the defendant
waived the benefit of Phillips’s testimony? Who can tell?

															In Commonwealth v. Drake , 15 Mass.
161 (1818), the Supreme Judicial Court of Massachusetts summarily
affirmed the conviction of a criminal defendant who was convicted
after the trial court admitted the testimony of his fellow church
members before whom he had confessed. The State argued that the
defendant had voluntarily confessed, that his confession was not
required by any “ecclesiastical rule,” and that he had confessed
“not to the church” but “to his friends and neighbours.” Id. , at 162. Because the court provided no explanation of
its decision, this case sheds no light on the understanding of the
free-exercise right.

															All told, this mixed bag of antebellum decisions
does little to support Smith , and extending the search past
the Civil War does not advance Smith ’s cause. One of the
objectives of the Fourteenth Amendment, it has been argued, was to
protect the religious liberty of African-Americans in the South,
where a combination of laws that did not facially target religious
practice had been used to suppress religious exercise by slaves.
See generally Lash, The Second Adoption of the Free Exercise
Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw.
U. L. Rev. 1106 (1994).

															4

															Some have claimed that the drafting history of
the Bill of Rights supports Smith . See Brief for First
Amendment Scholars as Amici Curiae 10–11; Muñoz, Original
Meaning 1085. But as Professor Philip Hamburger, one of Smith ’s most prominent academic defenders, has concluded,
“[w]hat any of this [history] implies about the meaning of the Free
Exercise Clause is speculative.” Religious Exemption 928.

															Here is the relevant history. The House debated
a provision, originally proposed by Madison, that protected the
right to bear arms but included language stating that “no person,
religiously scrupulous, shall be compelled to bear arms.” 1 Annals
of Cong. 749, 766 (1789); see also Muñoz, Original Meaning 1112.
Some Members spoke in favor of

															the proposal,[ 67 ] others opposed it,[ 68 ] and in the end, after adding the words “in person” at
the end of the clause, the House adopted it.[ 69 ] The Senate, however, rejected the proposal
(for reasons not provided on the public record), id ., at
1116, and the House acceded to the deletion.

															Those who claim that this episode supports Smith argue that the House would not have found it necessary
to include this proviso in the Second Amendment if it had thought
that the Free Exercise Clause already protected conscientious
objectors from conscription, Muñoz, Original Meaning 1120, but that
conclusion is unfounded. Those who favored Madison’s language might
have thought it necessary, not because the free-exercise right never required religious exemptions but because they feared
that exemption from military service would be held to fall into the
free-exercise right’s carveout for conduct that threatens public
safety.[ 70 ] And of course,
it could be argued that the willingness of the House to
constitutionalize this exemption despite its potential effect on
national security shows the depth of the Members’ commitment to the
concept of religious exemptions.

															As for the Senate’s rejection of the proviso, we
have often warned against drawing inferences from Congress’s
failure to adopt a legislative proposal. See Schneidewind v. ANR Pipeline Co. , 485 U.S.
293 , 306 (1988) (“This Court generally is reluctant to draw
inferences from Congress’ failure to act”); Brecht v. Abrahamson , 507 U.S.
619 , 632–633 (1993) (collecting cases). And in this instance,
there are many possible explanations for what happened in the
Senate. The rejection of the proviso could have been due to
a general objection to religious exemptions, but it could also have
been based on any of the following grounds: opposition to this
particular exemption, the belief that conscientious objectors were
already protected by the Free Exercise Clause, a belief that
military service fell within the public safety carveout, or the
view that Congress should be able to decide whether to grant or
withhold such exemptions based on its assessment of what national
security required at particular times.

															*  *  *

															In sum, based on the text of the Free Exercise
Clause and evidence about the original understanding of the
free-exercise right, the case for Smith fails to overcome
the more natural reading of the text. Indeed, the case against Smith is very convincing.

															V

															That conclusion cannot end our analysis. “We
will not overturn a past decision unless there are strong grounds
for doing so,” Janus v. State, County, and Municipal
Employees, 585 U. S. ___, ___ (2018) (slip op., at 34),
but at the same time, stare decisis is “not an inexorable
command.” Ibid. (internal quotation marks omitted). It “is
at its weakest when we interpret the Constitution because our
interpretation can be altered only by constitutional amendment or
by overruling our prior decisions.” Agostini v. Felton , 521 U.S.
203 , 235 (1997). And it applies with “perhaps least force of
all to decisions that wrongly denied First Amendment rights.” Janus , 585 U. S., at ___ (slip op., at 34); see also Federal Election Comm’n v. Wisconsin Right to Life,
Inc. , 551 U.S.
449 , 500 (2007) (Scalia, J., concurring in part and concurring
in judgment) (“This Court has not hesitated to overrule decisions
offensive to the First Amendment (a fixed star in our
constitutional constellation, if there is one)” (internal quotation
marks omitted)); Citizens United v. Federal Election
Comm’n , 558 U.S.
310 , 365 (2010) (overruling Austin v. Michigan
Chamber of Commerce , 494 U.S.
652 (1990)); West Virginia Bd. of Ed. v. Barnette , 319 U.S.
624 , 642 (1943) (overruling Minersville School Dist. v . Gobitis , 310 U.S.
586 (1940)).

															In assessing whether to overrule a past decision
that appears to be incorrect, we have considered a variety of
factors, and four of those weigh strongly against Smith : its
reasoning; its consistency with other decisions; the workability of
the rule that it established; and developments since the decision
was handed down. See Janus , 585 U. S., at ___–___ (slip
op., at 34–35). No relevant factor, including reliance, weighs in Smith ’s favor.

															A Smith’s reasoning . As explained in
detail above, Smith is a methodological outlier. It ignored
the “normal and ordinary” meaning of the constitutional text, see Heller , 554 U. S., at 576, and it made no real effort
to explore the understanding of the free-exercise right at the time
of the First Amendment’s adoption. And the Court adopted its
reading of the Free Exercise Clause with no briefing on the issue
from the parties or amici . Laycock, 8 J. L. & Religion,
at 101.

															Then there is Smith ’s treatment of
precedent. It looked for precedential support in strange places,
and the many precedents that stood in its way received remarkably
rough treatment.

															Looking for a case that had endorsed its
no-exemptions view, Smith turned to Gobitis , 310
U. S., at 586, a decision that Justice Scalia himself later
acknowledged was “erroneous,” Wisconsin Right to Life , Inc ., 551 U. S., at 500–501 (opinion concurring in
part). William Gobitas,[ 71 ]
a 10-year-old fifth grader, and his 12-year-old sister Lillian
refused to salute the flag during the Pledge of Allegiance because,
along with other Jehovah’s Witnesses, they thought the salute
constituted idolatry. 310 U. S., at 591–592.[ 72 ] William’s “teacher tried to force his
arm up, but William held on to his pocket and successfully
resisted.”[ 73 ] The Gobitas
children were expelled from school, and the family grocery was
boycotted.[ 74 ]

															This Court upheld the children’s expulsion
because, in ringing rhetoric quoted by Smith ,
“[c]onscientious scruples have not, in the course of the long
struggle for religious toleration, relieved the individual from
obedience to a general law not aimed at the promotion or
restriction of religious beliefs.” 310 U. S., at 594; see also Smith , 494 U. S., at 879 (quoting this passage). This
declaration was overblown when issued in 1940. (As noted, many
religious exemptions had been granted by legislative bodies, and
the 1940 statute instituting the peacetime draft continued that
tradition by exempting conscientious objectors. Selective Training
and Service Act, 54Stat. 885, 889.) By 1990, when Smith was
handed down, the pronouncement flew in the face of nearly 40 years
of Supreme Court precedent.

															But even if all that is put aside, Smith ’s recourse to Gobitis was surprising because
the decision was overruled just three years later when three of the
Justices in the majority had second thoughts. See Barnette ,
319 U.S. 642; id., at 643–644 (Black and Douglas, JJ.,
concurring); id., at 644–646 (Murphy, J., concurring).
Turning Gobitis ’s words on their head, Barnette held
that students with religious objections to saluting the flag were
indeed “relieved . . . from obedience to a general [rule]
not aimed at the promotion or restriction of religious beliefs.” Gobitis , 310 U. S., at 594.

															After reviving Gobitis’ s anti-exemption
rhetoric, Smith turned to Reynolds v. United
States , 98 U.S.
145 , an 1879 decision upholding the polygamy conviction of a
member of the Church of Jesus Christ of Latter-day Saints. Unlike Gobitis , Reynolds at least had not been
overruled,[ 75 ] but the
decision was not based on anything like Smith ’s
interpretation of the Free Exercise Clause. It rested primarily on
the proposition that the Free Exercise Clause protects beliefs, not
conduct. 98 U. S., at 166–167. The Court had repudiated that
distinction a half century before Smith was decided. See Cantwell , 310 U. S., at 303–304; Murdock v. Pennsylvania , 319 U.S.
105 , 110–111, 117 (1943). And Smith itself agreed! See
494 U. S., at 877.

															The remaining pre- Sherbert cases cited by Smith actually cut against its interpretation. None was
based on the rule that Smith adopted. Although these
decisions ended up denying exemptions, they did so on other
grounds. In Prince v. Massachusetts , 321 U.S.
158 (1944), where a Jehovah’s Witness who enlisted a child to
distribute religious literature was convicted for violating a state
child labor law, the decision was based on the Court’s assessment
of the strength of the State’s interest. Id ., at 159–160,
162, 169–170; see also Yoder , 406 U. S., at 230–231
(describing the Prince Court’s rationale).

															In Braunfeld v. Brown , 366 U.S.
599 , 601, 609 (1961) (plurality opinion), which rejected a
Jewish merchant’s challenge to Pennsylvania’s Sunday closing laws,
the Court balanced the competing interests. The Court attached
diminished weight to the burden imposed by the law (because it did
not require work on Saturday), id., at 606,[ 76 ] and on the other side of the balance,
the Court accepted the Commonwealth’s view that the public welfare
was served by providing a uniform day of rest, id ., at
608–609; see Sherbert , 374 U. S., at 408–409
(discussing Braunfeld ).

															When Smith came to post- Sherbert cases, the picture did not improve. First, in order to place Sherbert , Hobbie , and Thomas in a special
category reserved for cases involving unemployment compensation, an
inventive transformation was required. None of those opinions
contained a hint that they were limited in that way. And since Smith itself involved the award of unemployment compensation
benefits under a scheme that allowed individualized exemptions, it
is hard to see why that case did not fall into the same
category.

															The Court tried to escape this problem by
framing Alfred Smith’s and Galen Black’s free-exercise claims as
requests for exemptions from the Oregon law criminalizing the
possession of peyote, see 494 U. S., at 876, but neither Smith
nor Black was prosecuted for that offense even though the State was
well aware of what they had done. The State had the discretion to
decline prosecution based on the facts of particular cases, and
that is presumably what it did regarding Smith and Black. Why this
was not sufficient to bring the case within Smith ’s rule
about individualized exemptions is unclear. See McConnell, Free
Exercise Revisionism 1124.

															Having pigeon-holed Sherbert , Hobbie , and Thomas as unemployment compensation
decisions, Smith still faced problems. For one thing, the
Court had previously applied the Sherbert test in many cases
not involving unemployment compensation, including Hernandez v. Commissioner , 490 U.S.
680 (1989) (disallowance of tax deduction); Lee , 455 U.S.
252 (payment of taxes); and Gillette, 401 U.S.
437 (denial of conscientious objector status to person with
religious objection to a particular war). To get these cases out of
the way, Smith claimed that, because they ultimately found
no free-exercise violations, they merely “ purported to apply
the Sherbert test.” 494 U. S., at 883 (emphasis
added).

															This was a curious observation. In all those
cases, the Court invoked the Sherbert test but found that it
did not require relief. See Hernandez , 490 U. S., at
699; Lee , 455 U. S., at 257–260; Gillette , 401
U. S., at 462 . Was the Smith Court questioning
the sincerity of these earlier opinions? If not, then in what sense
did those decisions merely “purport” to apply Sherbert ?

															Finally, having swept all these cases from the
board, Smith still faced at least one big troublesome
precedent: Yoder . Yoder not only applied the Sherbert test but held that the Free Exercise Clause
required an exemption totally unrelated to unemployment benefits.
406 U. S., at 220–221, 236. To dispose of Yoder , Smith was forced to invent yet another special category of
cases, those involving “hybrid-rights” claims. Yoder fell
into this category because it implicated both the Amish parents’
free-exercise claim and a parental-rights claim stemming from Pierce v . Society of Sisters , 268
U.S. 510 (1925). See Smith , 494 U. S., at 881. And
in such hybrid cases, Smith held, the Sherbert test
survived. See 494 U. S., at 881–882.

															It is hard to see the justification for this
curious doctrine. The idea seems to be that if two independently
insufficient constitutional claims join forces they may merge into
a single valid hybrid claim, but surely the rule cannot be that
asserting two invalid claims, no matter how weak, is always enough.
So perhaps the doctrine requires the assignment of a numerical
score to each claim. If a passing grade is 70 and a party advances
a free-speech claim that earns a grade of 40 and a free-exercise
claim that merits a grade of 31, the result would be a (barely)
sufficient hybrid claim. Such a scheme is obviously unworkable and
has never been recognized outside of Smith .

															And then there is the problem that the
hybrid-rights exception would largely swallow up Smith ’s
general rule. A great many claims for religious exemptions can
easily be understood as hybrid free-exercise/free-speech claims.
Take the claim in Smith itself. To members of the Native
American Church, the ingestion of peyote during a religious
ceremony is a sacrament. When Smith and Black participated in this
sacrament, weren’t they engaging in a form of expressive conduct?
Their ingestion of peyote “communicate[d], in a rather dramatic
way, [their] faith in the tenets of the Native American Church,”
and the State’s prohibition of that practice “interfered with their
ability to communicate this message” in violation of the Free
Speech Clause. McConnell, Free Exercise Revisionism 1122. And, “if
a hybrid claim is one in which a litigant would actually obtain an
exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been
no reason for the Court in [the so-called] hybrid cases to have
mentioned the Free Exercise Clause at all.” Lukumi , 508
U. S., at 566–567 (opinion of Souter, J.); see also Laycock, 8
J. L. & Religion, at 106 (noting that Smith “reduces the
free exercise clause to a cautious redundancy, relevant only to
‘hybrid’ cases”). It is telling that this Court has never once
accepted a “hybrid rights” claim in the more than three decades
since Smith .

															In addition to all these maneuvers—creating
special categories for unemployment compensation cases, cases
involving individualized exemptions, and hybrid-rights
cases— Smith ignored the multiple occasions when the Court
had directly repudiated the very rule that Smith adopted.
See supra, at 13–14. Smith ’s rough treatment of prior
decisions diminishes its own status as a precedent.

															B Consistency with other precedents . Smith is also discordant with other precedents. Smith did not overrule Sherbert or any of the other cases that
built on Sherbert from 1963 to 1990, and for the reasons
just discussed, Smith is tough to harmonize with those
precedents.

															The same is true about more recent decisions. In Hosanna-Tabor Evangelical Lutheran Church and School v .
EEOC , 565 U.S.
171 (2012), the Court essentially held that the First Amendment
entitled a religious school to a special exemption from the
requirements of the Americans with Disabilities Act of 1990 (ADA),
104Stat. 327, 42 U. S. C. §12101 et seq . When the
school discharged a teacher, she claimed that she had been
terminated because of disability. 565 U. S., at 178–179. Since
the school considered her a “minister” and she provided religious
instruction for her students, the school argued that her discharge
fell within the so-called “ministerial exception” to generally
applicable employment laws. Id., at 180. The Equal
Employment Opportunity Commission maintained that Smith precluded recognition of this exception because “the ADA’s
prohibition on retaliation, like Oregon’s prohibition on peyote
use, is a valid and neutral law of general applicability.” Id. , at 190; see id. , at 189–190. We nevertheless
held that the exception applied. Id., at 190.[ 77 ] Similarly, in Our Lady of Guadalupe
School v. Morrissey-Berru , 591 U. S. ___, ___–___
(2020) (slip op., at 21–22), we found that other religious schools
were entitled to similar exemptions from both the ADA and the Age
Discrimination in Employment Act of 1967.

															There is also tension between Smith and
our opinion in Masterpiece Cakeshop, Ltd. v . Colorado
Civil Rights Comm’n, 584 U. S. ___ (2018). In that case,
we observed that “[w]hen it comes to weddings, it can be assumed
that a member of the clergy who objects to gay marriage on moral
and religious grounds could not be compelled to perform the
ceremony without denial of his or her right to the free exercise of
religion.” Id ., at ___ (slip op., at 10). The clear import
of this observation is that such a member of the clergy would be
entitled to a religious exemption from a state law restricting the
authority to perform a state-recognized marriage to individuals who
are willing to officiate both opposite-sex and same-sex
weddings.

															Other inconsistencies exist. Smith declared that “a private right to ignore generally applicable laws”
would be a “constitutional anomaly,” 494 U. S., at 886, but
this Court has often permitted exemptions from generally applicable
laws in First Amendment cases. For instance, in Boy Scouts of
America v. Dale , 530 U.S.
640 , 656 (2000), we granted the Boy Scouts an exemption from an
otherwise generally applicable state public accommodations law. In Hurley v . Irish-American Gay, Lesbian and Bisexual Group
of Boston , Inc ., 515 U.S.
557 , 573 (1995), parade sponsors’ speech was exempted from the
requirements of a similar law.

															The granting of an exemption from a generally
applicable law is tantamount to a holding that a law is
unconstitutional as applied to a particular set of facts, see
Barclay & Rienzi, Constitutional Anomalies or As-Applied
Challenges? A Defense of Religious Exemptions, 59 Boston
College L. Rev. 1595, 1611 (2018) , and ca ses holding
generally applicable laws unconstitutional as applied are
unremarkable. “[T]he normal rule is that partial, rather than
facial, invalidation is the required course, such that a statute
may . . . be declared invalid to the extent that it
reaches too far, but otherwise left intact.” Ayotte v. Planned
Parenthood of Northern New Eng., 546 U.S.
320 , 329 (2006) (internal quotation marks omitted; emphasis
added). Thus, in Brown v. Socialist Workers ’74 Campaign
Comm. (Ohio) , 459 U.S.
87 (1982), we held that a law requiring disclosure of campaign
contributions and expenditures could not be “constitutionally
applied” to a minor party whose members and contributors would face
“threats, harassment or reprisals.” Id. , at 101–102. Cf. NAACP v . Alabama ex rel. Patterson , 357 U.S.
449 , 466 (1958) (exempting the NAACP from a disclosure order
entered to purportedly investigate compliance with a generally
applicable statute). In Hustler Magazine, Inc. v. Falwell , 485 U.S.
46 , 56 (1988), and Snyder v . Phelps , 562 U.S.
443 , 459 (2011), the Court held that an established and
generally applicable tort claim (the intentional infliction of
emotional distress) could not constitutionally be applied to the
particular expression at issue. Similarly, breach-of-the-peace
laws, although generally valid, have been held to violate the Free
Speech Clause under certain circumstances. See Cohen v .
California , 403 U.S.
15 , 16, 26 (1971); Cantwell , 310 U. S., at 300,
311; see also Bartnicki v. Vopper , 532 U.S.
514 , 517, 535 (2001) (respondents not liable under law
prohibiting disclosure of illegally intercepted communications
because their speech was protected by the First Amendment); United States v. Treasury Employees , 513 U.S.
454 , 477 (1995) (respondents not subject to the honoraria ban
because it would violate their First Amendment rights); United
States v. Grace , 461 U.S.
171 , 175, 179, 183 (1983) (respondents engaging in expressive
conduct on public sidewalks not subject to law generally regulating
conduct on Supreme Court grounds).

															Finally, Smith ’s treatment of the
free-exercise right is fundamentally at odds with how we usually
think about liberties guaranteed by the Bill of Rights. As Justice
Jackson famously put it, “[t]he very purpose of a Bill of Rights
was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and
officials.” Barnette , 319 U. S., at 638. Smith ,
by contrast, held that protection of religious liberty was better
left to the political process than to courts. 494 U. S., at
890. In Smith ’s view, the Nation simply could not “afford
the luxury” of protecting the free exercise of religion from
generally applicable laws. Id. , at 888. Under this
interpretation, the free exercise of religion does not receive the
judicial protection afforded to other, favored rights.

															C Workability . One of Smith ’s
supposed virtues was ease of application, but things have not
turned out that way. Instead, at least four serious problems have
arisen and continue to plague courts when called upon to apply Smith .

															1 “Hybrid-rights” cases . The “hybrid
rights” exception, which was essential to distinguish Yoder ,
has baffled the lower courts. They are divided into at least three
camps. See Combs v. Homer-Center School Dist. , 540
F.3d 231, 244–247 (CA3 2008) (describing Circuit split). Some
courts have taken the extraordinary step of openly refusing to
follow this part of Smith ’s interpretation. The Sixth
Circuit was remarkably blunt: “[H]old[ing] that the legal standard
under the Free Exercise Clause depends on whether a free-exercise
claim is coupled with other constitutional rights . . .
is completely illogical.” Kissinger v . Board of Trustees
of Ohio State Univ. , 5 F.3d 177, 180 (1993). The Second and
Third Circuits have taken a similar approach. See Leebaert v. Harrington , 332 F.3d 134 , 144 (CA2 2003) (“We . . . can think of
no good reason for the standard of review to vary simply with the
number of constitutional rights that the plaintiff asserts have
been violated”); Knight v . Connecticut Dept . of
Pub. Health , 275 F.3d 156 , 167 (CA2 2001); Combs , 540 F. 3d, at
247 (“Until the Supreme Court provides direction, we believe the
hybrid-rights theory to be dicta”).

															A second camp holds that the hybrid-rights
exception applies only when a free-exercise claim is joined with
some other independently viable claim. See Archdiocese of
Washington v. WMATA , 897 F.3d 314, 331 (CADC 2018) (A
“hybrid rights claim . . . requires independently viable
free speech and free exercise claims”); Gary S. v. Manchester School Dist. , 374 F.3d 15 , 19 (CA1 2004) (adopting District Court’s reasoning
that “the [hybrid-rights] exception can be invoked only if the
plaintiff has joined a free exercise challenge with another
independently viable constitutional claim,” 241 F. Supp. 2d 111 , 121 (NH 2003)); Brown v. Hot,
Sexy and Safer Productions , 68 F.3d 525 , 539 (CA1 1995). But this approach essentially
makes the free-exercise claim irrelevant. See Axson-Flynn v. Johnson , 356 F.3d 1277 , 1296–1297 (CA10 2004) (“[I]t makes no sense to
adopt a strict standard that essentially requires a successful companion claim because such a test would make
the free exercise claim unnecessary”); see also Lukumi , 508
U. S., at 567 (opinion of Souter, J.) (making the same
point).

															The third group requires that the
non-free-exercise claim be “colorable.” See Cornerstone
Christian Schools v. University Interscholastic League ,
563 F.3d 127, 136, n. 8 (CA5 2009); San Jose Christian
College v. Morgan Hill , 360 F.3d 1024 , 1032–1033 (CA9 2004); Axson-Flynn, 356
F. 3d, at 1295–1297. But what that means is obscure. See, e.g., id ., at 1295 (referring to “helpful” analogies
such as the “ ‘likelihood of success on the merits’ standard
for preliminary injunctions” or the pre-Antiterrorism and Effective
Death Penalty Act standard for obtaining an evidentiary hearing, i.e. , a “ ‘colorable showing of factual
innocence’ ”).[ 78 ]

															It is rare to encounter a holding of this Court
that has so thoroughly stymied or elicited such open derision from
the Courts of Appeals.

															2 Rules that “target” religion .
Post- Smith cases have also struggled with the task of
determining whether a purportedly neutral rule “targets” religious
exercise or has the restriction of religious exercise as its
“object.” Lukumi , 508 U. S., at 534; Smith , 494
U. S., at 878. A threshold question is whether “targeting”
calls for an objective or subjective inquiry. Must “targeting” be
assessed based solely on the terms of the relevant rule or rules?
Or can evidence of the rulemakers’ motivation be taken into
account? If subjective motivations may be considered, does it
matter whether the challenged state action is an adjudication, the
promulgation of a rule, or the enactment of legislation? Should
courts consider the motivations of only the officials who took the
challenged action, or may they also take into account comments by
superiors and others in a position of influence? And what degree of
hostility to religion or a religious group is required to prove
“targeting”?

															The genesis of this problem was Smith ’s
holding that a rule is not neutral “if prohibiting the exercise of
religion” is its “object.” 494 U. S., at 878. Smith did
not elaborate on what that meant, and later in Lukumi , which
concerned city ordinances that burdened the practice of Santeria,
508 U. S., at 525–528, Justices in the Smith majority
adopted different interpretations. Justice Scalia and Chief Justice
Rehnquist took the position that the “object” of a rule must be
determined by its terms and that evidence of the rulemakers’
motivation should not be considered. 508 U. S., at 557–559.
This interpretation had the disadvantage of allowing skillful
rulemakers to target religious exercise by devising a facially
neutral rule that applies to both the targeted religious conduct
and a slice of secular conduct that can be burdened without
eliciting unacceptable opposition from those whose interests are
affected.

															The alternative to this approach takes courts
into the difficult business of ascertaining the subjective
motivations of rulemakers. In Lukumi , Justices Kennedy and
Stevens took that path and relied on numerous statements by council
members showing that their object was to ban the practice of
Santeria within the city’s borders. Id., at 540–542. Thus, Lukumi left the meaning of a rule’s “object” up in the
air.

															When the issue returned in Masterpiece
Cakeshop , the question was only partially resolved. Holding
that the Colorado Civil Rights Commission violated the
free-exercise rights of a baker who refused for religious reasons
to create a cake for a same-sex wedding, the Court pointed to
disparaging statements made by commission members, and the Court
noted that these comments, “by an adjudicatory body deciding a
particular case,” “were made in a very different context” from the
remarks by the council members in Lukumi . Masterpiece
Cakeshop, 584 U. S., at ___ (slip op., at 14). That is as
far as this Court’s decisions have gone on the question of
targeting, and thus many important questions remain open.

															The present case highlights two—specifically,
which officials’ motivations are relevant and what degree of
disparagement must be shown to establish unconstitutional
targeting. In Masterpiece Cakeshop , the commissioners’
statements—comparing the baker’s actions to the Holocaust and
slavery and suggesting that his beliefs were just an excuse for
bigotry—went too far. Id., at ___–___ (slip op., at 12–14).
But what about the comments of Philadelphia officials in this case?
The city council labeled CSS’s policy “discrimination that occurs
under the guise of religious freedom.” App. to Pet. for Cert. 147a.
The mayor had said that the Archbishop’s actions were not
“Christian,” and he once called on the Pope “to kick some ass
here.” Id. , at 173a, 177a–178a. In addition, the
commissioner of the Department of Human Services (DHS), who serves
at the mayor’s pleasure,[ 79 ]
disparaged CSS’s policy as out of date and out of touch with Pope
Francis’s teachings.[ 80 ]

															The Third Circuit found this evidence
insufficient. Although the mayor conferred with the DHS
commissioner both before and after her meeting with CSS
representatives, the mayor’s remarks were disregarded because there
was no evidence “that he played a direct role, or even a significant role, in the process.” 922 F. 3d, at 157
(emphasis added). The city council’s suggestion that CSS’s
religious liberty claim was a “guise” for discrimination was found
to “fal[l] into [a] grey zone,” and the commissioner’s debate with
a CSS representative about up-to-date Catholic teaching, which
“some might think . . . improper” “if taken out of
context” was “best viewed as an effort to reach common ground with
[CSS] by appealing to an authority within their shared religious
tradition.” Ibid . One may agree or disagree with the Third
Circuit’s characterization and evaluation of the statements of the
City officials, but the court’s analysis highlights the extremely
impressionistic inquiry that Smith ’s targeting requirement
may entail.

															Confusion and disagreement about “targeting”
have surfaced in other cases. Recently in Roman Catholic Diocese
of Brooklyn v . Cuomo , 592 U. S. ___ (2020)
( per curiam ), there were conflicting views about
comments made by the Governor of New York. On the day before he
severely restricted religious services in Brooklyn, the Governor
“said that if the ‘ultra-Orthodox [Jewish] community’ would not
agree to enforce the rules, ‘then we’ll close the institutions
down.’ ” Agudath Israel of America v. Cuomo , 980
F.3d 222, 229 (CA2 2020)  (Park, J., dissenting). A dissenting
judge on the Second Circuit thought the Governor had crossed the
line, ibid. , and we ultimately enjoined enforcement of the
rules, Roman Catholic Diocese , 592 U. S., at ___. But
two Justices who dissented found the Governor’s comments
inconsequential. Id., at ___–___ (slip op., at 4–5) (opinion
of Sotomayor, J., joined by Kagan, J.).

															In Stormans, Inc. v. Wiesman , 579
U. S. ___ (2016) (denying certiorari), there was similar
disagreement. That case featured strong evidence that pro-life
Christian pharmacists who refused to dispense emergency
contraceptives were the object of a new rule requiring every
pharmacy to dispense every Food and Drug Administration-approved
drug. A primary drafter of the rule all but admitted that the rule
was aimed at these pharmacists, and the Governor took unusual steps
to secure adoption of the rule. Stormans, Inc. v. Selecky , 854 F. Supp. 2d 925, 937–943 (WD Wash. 2012). After
a 12-day trial, the District Court found that Christian pharmacists
had been targeted, id., at 966, 987, but the Ninth Circuit
refused to accept that finding, Stormans, Inc. , 794 F.3d
1064, 1079 (2015). Compare Stormans, Inc. , 579 U. S.,
at ___–___, and n. 3 (Alito, J., joined by Roberts,
C. J., and Thomas, J., dissenting from denial of certiorari)
(slip op., at 8–9, and n. 3) (questioning Ninth Circuit’s
finding).

															Decisions of the lower courts on the issue of
targeting remain in disarray. Compare F. F. v. State ,
66 Misc. 3d 467, 479–482, 114 N. Y. S. 3d 852, 865–867
(2019) (declining to consider individual legislators’ comments); Tenafly Eruv Assn., Inc. v. Tenafly , 309 F.3d 144 , 168, n. 30 (CA3 2002) (declining to reach issue),
with Commack Self-Service Kosher Meats, Inc. v. Hooker , 680 F.3d 194, 211 (CA2 2012) (considering
legislative history); St. John’s United Church of Christ v. Chicago , 502 F.3d 616, 633 (CA7 2007) (“[W]e must look at
. . . the ‘historical background of the decision under
challenge’ ” (quoting Lukumi , 508 U. S., at 540)); Children’s Healthcare Is a Legal Duty, Inc. v. Min De
Parle , 212 F.3d 1084 , 1090 (CA8 2000) (targeting can be evidenced by
legislative history).

															3 The nature and scope of exemptions .
There is confusion about the meaning of Smith ’s holding on
exemptions from generally applicable laws. Some decisions apply
this special rule if multiple secular exemptions are granted. See, e.g., Horen v. Commonwealth , 23 Va. App. 735,
743–744, 479 S.E.2d 553, 557 (1997); Rader v. Johnston , 924 F. Supp. 1540 , 1551–1553 (Neb. 1996). Others conclude that
even one secular exemption is enough. See, e.g., Midrash
Sephardi, Inc. v. Surfside , 366 F.3d 1214 , 1234–1235 (CA11 2004); Fraternal Order of
Police Newark Lodge No. 12 v. Newark , 170 F.3d 359 , 365 (CA3 1999). And still others have applied the
rule where the law, although allowing no exemptions on its face,
was widely unenforced in cases involving secular conduct. See, e.g., Tenafly Eruv Assn. , 309 F. 3d, at
167–168.

															4 Identifying appropriate comparators . To
determine whether a law provides equal treatment for secular and
religious conduct, two steps are required. First, a court must
identify the secular conduct with which the religious conduct is to
be compared. Second, the court must determine whether the State’s
reasons for regulating the religious conduct apply with equal force
to the secular conduct with which it is compared. See Lukumi , 508 U. S., at 543. In Smith , this
inquiry undoubtedly seemed straightforward: The secular conduct and
the religious conduct prohibited by the Oregon criminal statute
were identical. But things are not always that simple.

															Cases involving rules designed to slow the
spread of COVID–19 have driven that point home. State and local
rules adopted for this purpose have typically imposed different
restrictions for different categories of activities. Sometimes
religious services have been placed in a category with certain
secular activities, and sometimes religious services have been
given a separate category of their own. To determine whether
COVID–19 rules provided neutral treatment for religious and secular
conduct, it has been necessary to compare the restrictions on
religious services with the restrictions on secular activities that
present a comparable risk of spreading the virus, and identifying
the secular activities that should be used for comparison has been
hotly contested.

															In South Bay United Pentecostal Church v . Newsom , 590 U. S. ___ (2020), where the Court
refused to enjoin restrictions on religious services, The Chief
Justice’s concurrence likened religious services to lectures,
concerts, movies, sports events, and theatrical performances. Id., at ___ (slip op., at 2). The dissenters, on the other
hand, focused on “supermarkets, restaurants, factories, and
offices.” Id., at ___ (opinion of Kavanaugh, J., joined by
Thomas and Gorsuch, JJ.) (slip op., at 3).

															In Calvary Chapel Dayton Valley v .
Sisolak , 591 U. S. ___ (2020), Nevada defended a rule
imposing severe limits on attendance at religious services and
argued that houses of worship should be compared with “movie
theaters, museums, art galleries, zoos, aquariums, trade schools,
and technical schools.” Response to Emergency Application for
Injunction, O. T. 2019, No. 19A1070, pp. 7, 14–15. Members of
this Court who would have enjoined the Nevada rule looked to the
State’s more generous rules for casinos, bowling alleys, and
fitness facilities. 591 U. S., at ___–___ (Alito, J., joined
by Thomas and Kavanaugh, JJ., dissenting) (slip op., at 6–7).

															In Roman Catholic Diocese of Brooklyn ,
592 U. S. ___, Justices in the majority compared houses of
worship with large retail establishments, factories, schools,
liquor stores, bicycle repair shops, and pet shops, id., at
___ (slip op., at 3); id. , at ___ (Gorsuch, J., concurring)
(slip op., at 2), id., at ___ (Kavanaugh, J., concurring)
(slip op., at 2), while dissenters cited theaters and concert
halls, id., at ___ (opinion of Sotomayor, J., joined by
Kagan, J.) (slip op., at 2).

															In Danville Christian Academy, Inc. v .
Beshear , 592 U. S. ___ (2020), the District Court enjoined
enforcement of an executive order that compelled the closing of a
religiously affiliated school, reasoning that the State permitted
pre-schools, colleges, and universities to stay open and also
allowed attendance at concerts and lectures. Danville Christian
Academy, Inc. v . Beshear , ___ F. Supp. 3d ___, 2020
WL 6954650, *4 (ED Ky., Nov. 25, 2020). The Sixth Circuit reversed,
concluding that the rule was neutral and generally applicable
because it applied to all elementary and secondary schools, whether
secular or religious. Kentucky ex rel. Danville
Christian Academy, Inc. v . Beshear , 981 F.3d 505, 509
(2020).

															Much of Smith ’s initial appeal was likely
its apparent simplicity. Smith seemed to offer a relatively
simple and clear-cut rule that would be easy to apply. Experience
has shown otherwise.

															D Subsequent developments . Developments
since Smith provide additional reasons for changing course.
The Smith majority thought that adherence to Sherbert would invite “anarchy,” 494 U. S., at 888, but experience has
shown that this fear was not well founded. Both RFRA and RLUIPA
impose essentially the same requirements as Sherbert , and we
have observed that the courts are well “up to the task” of applying
that test. Gonzales v. O Centro Espírita Beneficente
União do Vegetal , 546 U.S.
418 , 436 (2006). See also Cutter v . Wilkinson , 544 U.S.
709 , 722 (2005) (noting “no cause to believe” the test could
not be “applied in an appropriately balanced way”).

															Another significant development is the
subsequent profusion of studies on the original meaning of the Free
Exercise Clause. When Smith was decided, the available
scholarship was thin, and the Court received no briefing on the
subject. Since then, scholars have explored the subject in great
depth.[ 81 ]

															*  *  *

															Multiple factors strongly favor overruling Smith . Are there countervailing factors?

															E

															None is apparent. Reliance is often the
strongest factor favoring the retention of a challenged precedent,
but no strong reliance interests are cited in any of the numerous
briefs urging us to preserve Smith . Indeed, the term is
rarely even mentioned.

															All that the City has to say on the subject is
that overruling Smith would cause “substantial regulatory
. . . disruption” by displacing RFRA, RLUIPA, and related
state laws, Brief for City Respondents 51 (internal quotation marks
omitted), but this is a baffling argument. How would overruling Smith disrupt the operation of laws that were enacted to
abrogate Smith ?

															One of the City’s amici , the New York
State Bar Association, offers a different reliance argument. It
claims that some individuals, relying on Smith , have moved
to jurisdictions with anti-discrimination laws that do not permit
religious exemptions. Brief for New York State Bar Association as Amicus Curiae 11. The bar association does not cite any
actual examples of individuals who fall into this category, and
there is reason to doubt that many actually exist.

															For the hypothesized course of conduct to make
sense, all of the following conditions would have to be met. First,
it would be necessary for the individuals in question to believe
that a religiously motivated party in the jurisdiction they left or
avoided might engage in conduct that harmed them. Second, this
conduct would have to be conduct not already protected by Smith in that it (a) did not violate a generally applicable
state law, (b) that law did not allow individual exemptions, and
(c) there was insufficient proof of religious targeting. Third, the
feared conduct would have to fall outside the scope of RLUIPA.
Fourth, the conduct, although not protected by Smith , would
have to be otherwise permitted by local law, for example, through a
state version of RFRA. Fifth, this fear of harm at the hands of a
religiously motivated actor would have to be a but-for cause of the
decision to move. Perhaps there are individuals who fall into the
category that the bar association hypothesizes, but we should not
allow violations of the Free Exercise Clause in perpetuity based on
such speculation.

															Indeed, even if more substantial reliance could
be shown, Smith ’s dubious standing would weigh against
giving this factor too much weight. Smith has been embattled
since the day it was decided, and calls for its reexamination have
intensified in recent years. See Masterpiece Cakeshop, 584
U. S., at ___ (Gorsuch, J., joined by Alito, J., concurring)
(slip op., at 1); Kennedy , 586 U. S., at ___–___
(Alito, J., joined by Thomas, Gorsuch, and Kavanaugh, JJ.,
concurring in denial of certiorari) (slip op., at 5–6); City of
Boerne 521 U. S., at 566 (Breyer, J., dissenting) (“[T]he
Court should direct the parties to brief the question whether
[ Smith ] was correctly decided”); id. , at 565
(O’Connor, J., joined by Breyer, J., dissenting) (“[I]t is
essential for the Court to reconsider its holding in Smith ”); Lukumi , 508 U. S., at 559 (Souter, J.,
concurring in part and concurring in judgment) (“[I]n a case
presenting the issue, the Court should reexamine the rule Smith declared”). Thus, parties have long been on notice
that the decision might soon be reconsidered. See Janus, 585
U. S., at ___ (slip op., at 45).

															*  *  * Smith was wrongly decided. As long as
it remains on the books, it threatens a fundamental freedom. And
while precedent should not lightly be cast aside, the Court’s error
in Smith should now be corrected.

															VI

															A

															If Smith is overruled, what legal
standard should be applied in this case? The answer that comes most
readily to mind is the standard that Smith replaced: A law
that imposes a substantial burden on religious exercise can be
sustained only if it is narrowly tailored to serve a compelling
government interest.

															Whether this test should be rephrased or
supplemented with specific rules is a question that need not be
resolved here because Philadelphia’s ouster of CSS from foster care
work simply does not further any interest that can properly be
protected in this case. As noted, CSS’s policy has not hindered any
same-sex couples from becoming foster parents, and there is no
threat that it will do so in the future.

															CSS’s policy has only one effect: It expresses
the idea that same-sex couples should not be foster parents because
only a man and a woman should marry. Many people today find this
idea not only objectionable but hurtful. Nevertheless, protecting
against this form of harm is not an interest that can justify the
abridgment of First Amendment rights.

															We have covered this ground repeatedly in free
speech cases. In an open, pluralistic, self-governing society, the
expression of an idea cannot be suppressed simply because some find
it offensive, insulting, or even wounding. See Matal v. Tam , 582 U. S. ___, ___–___ (2017) (slip op., at 1–2)
(“Speech may not be banned on the ground that it expresses ideas
that offend”); Hurley , 515 U. S., at 579 (“[T]he law
. . . is not free to interfere with speech for no better
reason than promoting an approved message or discouraging a
disfavored one, however enlightened either purpose may strike the
government”); Johnson , 491 U. S., at 414 (“If there is
a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable”); FCC v. Pacifica Foundation , 438
U.S. 726 , 745 (1978) (opinion of Stevens, J.) (“[T]he fact that
society may find speech offensive is not a sufficient reason for
suppressing it. Indeed, if it is the speaker’s opinion that gives
offense, that consequence is a reason for according it
constitutional protection”); Street v. New York , 394 U.S.
576 , 592 (1969) (“[T]he public expression of ideas may not be
prohibited merely because the ideas are themselves offensive to
some of their hearers”); Cf. Coates v. Cincinnati , 402 U.S.
611 , 615 (1971) (“Our decisions establish that mere public
intolerance or animosity cannot be the basis for abridgment of
. . . constitutional freedoms”).

															The same fundamental principle applies to
religious practices that give offense. The preservation of
religious freedom depends on that principle. Many core religious
beliefs are perceived as hateful by members of other religions or
nonbelievers. Proclaiming that there is only one God is offensive
to polytheists, and saying that there are many gods is anathema to
Jews, Christians, and Muslims. Declaring that Jesus was the Son of
God is offensive to Judaism and Islam, and stating that Jesus was
not the Son of God is insulting to Christian belief. Expressing a
belief in God is nonsense to atheists, but denying the existence of
God or proclaiming that religion has been a plague is infuriating
to those for whom religion is all-important.

															Suppressing speech—or religious practice—simply
because it expresses an idea that some find hurtful is a 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 Obergefell v . Hodges, 576 U.S. 644 (2015), the majority made a
commitment. It refused to equate traditional beliefs about
marriage, which it termed “decent and honorable,” id ., at
672, with racism, which is neither. And it promised that
“religions, and those who adhere to religious doctrines, may
continue to advocate with utmost, sincere conviction that, by
divine precepts, same-sex marriage should not be condoned.” Id ., at 679. An open society can keep that promise while
still respecting the “dignity,” “worth,” and fundamental equality
of all members of the community. Masterpiece Cakeshop , 584
U. S., at ___ (slip op., at 9).

															B

															One final argument must be addressed.
Philadelphia and many of its amici contend that preservation
of the City’s policy is not dependent on Smith. They argue
that the City is simply asserting the right to control its own
internal operations, and they analogize CSS to either a City
employee or a contractor hired to perform an exclusively
governmental function.

															This argument mischaracterizes the relationship
between CSS and the City. The members of CSS’s staff are not City
employees; the power asserted by the City goes far beyond a refusal
to enter into a contract; and the function that CSS and other
private foster care agencies have been performing for decades has
not historically been an exclusively governmental function. See, e.g., Leshko v. Servis , 423 F.3d 337 , 343–344 (CA3 2005) (“No aspect of providing care
to foster children in Pennsylvania has ever been the exclusive
province of the government”); Rayburn v. Hogue , 241 F.3d 1341 , 1347 (CA11 2001) (acknowledging that foster care
is not traditionally an exclusive state prerogative); Milburn v. Anne Arundel Cty. Dept. of Social Servs. ,
871 F.2d 474, 479 (CA4 1989) (same); Malachowski v. Keene , 787 F.2d 704, 711 (CA1 1986) (same); see also Ismail v. County of Orange , 693 Fed. Appx. 507, 512
(CA9 2017) (concluding that foster parents were not state actors).
On the contrary, States and cities were latecomers to this field,
and even today, they typically leave most of the work to private
agencies.

															The power that the City asserts is essentially
the power to deny CSS a license to continue to perform work that it
has carried out for decades and that religious groups have
performed since time immemorial. Therefore, the cases that provide
the basis for the City’s argument—such as Garcetti v. Ceballos , 547 U.S.
410 (2006), and Board of Comm’rs, Wabounsee Cty . v. Umbehr , 518 U.S.
668 (1996)—are far afield. A government cannot “reduce a
group’s First Amendment rights by simply imposing a licensing
requirement.” National Institute of Family and Life
Advocates v. Becerra , 585 U. S. ___, ___ (2018)
(slip op., at 14).

															*  *  *

															For all these reasons, I would overrule Smith and reverse the decision below. Philadelphia’s
exclusion of CSS from foster care work violates the Free Exercise
Clause, and CSS is therefore entitled to an injunction barring
Philadelphia from taking such action.

															After receiving more than 2,500 pages of
briefing and after more than a half-year of post-argument
cogitation, the Court has emitted a wisp of a decision that leaves
religious liberty in a confused and vulnerable state. Those who
count on this Court to stand up for the First Amendment have every
right to be disappointed—as am I. Notes 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. 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 benefits, causes postoperative
pain, can have serious long-term consequences, constitutes a
violation of the United Nations’ Declaration of the Rights of the
Child, and conflicts with the Hippocratic oath”). 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 Shengold
Jewish Encyclopedia 62 (3d ed. 2003) (“[Circumcision] has become a
basic law among Jews. In times of persecution, Jews risked their
livesto fulfill the commandment”); B. Abramowitz, The Law of
Israel: A Compilation of the Hayye Adam 206 (1897) (“It is a
positive commandment that a father shall circumcise his son or that
he shall appoint another Israelite to act as his agent therein”); 3
Encyclopedia of Religion 1798 (2d ed. 2005) (“Muslims agree that
[circumcision] must occur before marriage and is required of male
converts”); H. Gibb & J. Kramers, Shorter Encyclopaedia of
Islam 254 (1953). 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)
(describing Basil of Caesarea’s use of his 4th century monastery as
a “place for the nourishment of orphans,” who “lived in their own
wing of the monastery,” “were provided with all the necessities of
life[,] and were raised by the monastics acting as surrogate
parents” (internal quotation marks omitted)). 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). 12 2
Encylopedia of the New American Nation 477 (2006); Hacsi, Second
Home, at 18. 13 15
Encyclopaedia Judaica 485. 14 2
Encyclopedia of Children and Childhood 639–640 (2004); Brief for
Historians of Child Welfare as Amici Curiae 16–17. 15 Brief
for Annie E. Casey Foundation et al. as Amici Curiae 4–5. 16 See
Social Security Act, §521, 49Stat. 627, 633; Social Security
ActAmendments of 1961, 75Stat. 131. 17 See
United States Conference of Catholic Bishops, Discrimination
Against Catholic Adoption Services (2018),
https://www.usccb.org/issues-and-action/religious-liberty/upload/Discrimination-against-Catholic-adoption-services.pdf. 18 See
Brief for Petitioners 11–12 (citing Wax-Thibodeaux, “We Are Just
Destroying These Kids”: The Foster Children Growing Up Inside
Detention Centers, Washington Post (Dec. 30, 2019),
https://www.washingtonpost.com/national/we-are-just-destroying-these-kids-the-foster-children-growing-up-inside-detention-centers/2019/12/30/97f65f3a-eaa2-11e9-9c6d-436a0df4f31d_story.html
(describing the placement of foster children in emergency shelters
and juvenile detention centers)); Brief in Opposition for City
Respondents 4 (acknowledging 5,000 children in need of care in
Philadelphia); Terruso, Philly Puts Out “Urgent” Call—300 Families
Needed for Fostering, Philadelphia Inquirer (Mar. 8, 2018),
https://www.inquirer.com/philly/news/foster-parents-dhs-philly-child-welfare-adoptions-20180308.html;
see also Haskins, Kohomban, & Rodriguez, Keeping Up With the
Caseload: How To Recruit and Retain Foster Parents, The Brookings
Institution (Apr. 24, 2019), https:
www.brookings.edu/blog/upfront/2019/04/24/keeping-up-with-the-caseload-how-to-recruit-and-retain-foster-parents/
(explaining that “[t]he number of children in foster care ha[d]
risen for the fifth consecutive year” to nearly 443,000 in 2017 and
noting that “between 30 to 50 percent of foster families step down
each year”); Adams, Foster Care Crisis: More Kids Are Entering, but
Fewer Families Are Willing To Take Them In, NBC News (Dec. 30,
2020),
https://www.nbcnews.com/news/nbcblk/foster-care-crisis-more-kids-are-entering-fewer-families-are-n1252450
(explaining how the COVID–19 pandemic has overwhelmed the United
States’ foster care system); Satija, For Troubled Foster Kids in
Houston, Sleeping in Offices Is “Rock Bottom,” Texas Tribune (Apr.
20, 2017),
https://www.texastribune.org/2017/04/20/texas-foster-care-placement-crisis/
(describing Texas’s shortage of placement options, which resulted
in children sleeping in office buildings where “no one is likely to
stop them” if they decide to run away); Associated Press, Indiana
Agencies Desperate To Find Foster Parents With Children Entering
System at All-Time High, Fox 59 (Mar. 7, 2017),
https://fox59.com/news/indiana-agencies-desperate-to-find-foster-parents-with-children-entering-system-at-all-time-high/
(noting that nearly 1,000 children in Indiana are in need of care
and that, in the span of one month, the State’s largest
not-for-profit child services agency was able to place 3 children
out of 150 to 200in 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
App. to Pet. for Cert. 19a, 64a, 140a; see also App. 59 (plaintiff
Cecilia Paul testifying that, at the time of the evidentiary
hearing below, she had no children in her care due to the City’s
policy). 20 Id., at 182, 365–366
(describing Department of Human Services commissioner’s comments to
CSS that “it would be great if we followed the teachings of Pope
Francis” and that “things have changed since 100 years
ago”). 21 The
Court’s decision also depends on its own contested interpretation
of local and state law. See post , at 2–7 (Gorsuch, J.,
concurring in judgment). Instead of addressing whether the City’s
Fair Practices Ordinance is generally applicable, the Court
concludes that the ordinance does not apply to CSS because CSS’s
foster care certification services do not constitute “public
accommodations” under the FPO. Ante , at 11. Of course, this
Court’s interpretation of state and local law is not binding on
state courts. See, e.g., West v. American
Telephone & Telegraph Co. , 311 U.S.
223 , 236 (1940); see also Danforth v. Minnesota , 552 U.S.
264 , 291 (2008) (Roberts, C. J., dissenting) (“State
courts are the final arbiters of their own state law”). Should the
Pennsylvania courts interpret the FPO differently, they would
effectively abrogate the Court’s decision in this
case. 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) (prohibiting, on the basis of
sexual orientation, the direct or indirect denial of “the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public
accommodations,” defined to include “establishments dealing with
goods or services of any kind”); Ill. Comp. Stat., ch. 775,
§§5/1–103(O–1), (Q), 5/5–101(A), 5/5–102 (2011) (prohibiting
discrimination on the basis of sexual orientation in a “place of
public accommodation,” defined by a list of non-exclusive
examples). 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, benefits, and licensing processes, and shall
not be subjected to discrimination . . . on the basis of . . .
sexual orientation”); D. C. Munic. Regs., tit. 29, §6003.1(d)
(2018) (providing that foster parents are “[t]o not be subject to
discrimi-nation as provided in the D. C. Human Rights Act,”
which prohibits discrimination on the basis of sexual orientation);
see also 110 Code Mass. Regs. 1.09(1) (2008) (“No applicant for or
recipient of Department [of Children and Families] services shall,
on the ground of . . . sexual orientation . . .
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination in connection with any
service, program, or activity administered or provided by the
Department”). 24 This
Court actually granted review twice: once, after the state court
first held that the denial of benefits was unconstitutional, see Smith v. Employment Div., Dept. of Human Resources ,
301 Ore. 209, 220, 721 P.2d 445 , 451 (1986), cert. granted 480 U.S. 916 (1987), and then again
after the case was remanded for the state court to determine
whether peyote consumption for religious use was unlawful under
Oregon law, see Employment Div., Dept. of Human Resources of Ore. v. Smith , 485 U.S.
660 , 662, 673–674 (1988). When the state court held that it was
and reaffirmed its prior decision, 307 Ore. 68, 72–73, 763 P.2d 146 , 147–148 (1988), the Court granted certiorari, 489
U.S. 1077 (1989). 25 Justice Barrett makes the surprising
claim that “[a] longstanding tenet of our free exercise
jurisprudence” that “pre-dates” Smith is “that a law
burdening religious exercise must satisfy strict scrutiny if it
gives government officials discretion to grant individualized
exemptions.” Ante , at 2 (concurring opinion). If there
really were such a “longstanding [pre- Smith ] tenet,” one
would expect to find cases stating that rule, but Justice Barrett
does not cite even one such case. Instead, she claims to find
support by reading between the lines of what the Court said in a
footnote in Sherbert , 374 U. S., at 401, n. 4, and a
portion of the opinion in Cantwell v. Connecticut , 310 U.S.
296 , 303–307 (1940)). Ante , at 2. But even a close
interlinear reading of those cases yields no evidence of this
supposed tenet. In the Sherbert footnote, the Court
responded to the dissent’s argument that South Carolina law did not
recognize any exemptions from the general eligibility requirement
for unemployment benefits. 374 U. S., at 419–420 (Harlan, J.,
dissenting). The footnote expressed skepticism about this
interpretation of South Carolina law, but it did not suggest that
its analysis would have been any different if the dissent’s
interpretation were correct. In Cantwell , the Court
addressed the constitutionality of a state statute that generally
prohibited the solicitation of funds for religious purposes unless
a public official found in advance that the cause was authentically
religious. See 310 U. S., at 300–302. The Court held that the
Free Exercise Clause prohibited the State from conditioning
permission to solicit funds on an administrative finding about a
religious group’s authenticity, but the Court did not suggest that
a blanket ban on solicitation would have necessarily been
sustained. On the contrary, it said that the State was “free to
regulate the time and manner of solicitation generally, in
the interest of public safety, peace, comfort or convenience.” Id ., at 307–308 (emphasis added). And the Court said not one
word about “strict scrutiny,” a concept that was foreign to Supreme
Court case law at that time. See Fallon, Strict Judicial Scrutiny,
54 UCLA L. Rev. 1267, 1284 (2007) (“Before 1960, what we would now
call strict judicial scrutiny . . . did not
exist”). 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 sonfrom entering the afterlife. See Yang v. Sturner , 750 F. Supp. 558 , 560 (RI 1990); see also 139 Cong. Rec. 9681 (1993) (remarks of
Rep. Edwards). Members of Congress were also informed that
veterans’ cemeteries had refused to allow burial on weekends even
when that was required by the deceased’s religion, id ., at
9687 (remarks of Rep. Cardin), and that churches were prohibited
from conducting services in areas zoned for commercial and
industrial uses, id. , at 9684 (remarks of Rep. Schumer). In
just the first three years after Smith , more than 50 cases
were decided against religious claimants. 139 Cong. Rec., at 9685
(remarks of Rep. Hoyer); see also id., at 9684 (remarks of
Rep. Schumer) (“Smith was a devastating blow to religious
freedom”). 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 applicable to the States. Gitlow v. New York , 268 U.S.
652 (1925); Hamilton v. Regents of Univ. of Cal. , 293 U.S.
245 (1934); Cantwell , 310 U.S.
296 ; Everson v. Board of Ed. of Ewing , 330 U.S. 1 (1947). And we have long applied that Amendment to actions taken by
those responsible for enforcing the law. See, e.g., Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S.
439 (1988) (considering First Amendment claim based on federal
agency’s decision); Thomas v. Review Bd. of Ind.
Employment Security Div. , 450 U.S.
707 (1981) (applying First Amendment against a state agency); Pickering v. Board of Ed. of Township High School Dist.
205 , Will Cty., 391 U.S.
563 (1968) (applying First Amendment against local board of
education); see also U. S. Const., Amdt. 14, §1 (“No State
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States”
(emphasis added)). 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.
Fraudulent speech, speech integral to criminal conduct, speech
soliciting bribes, perjury, speech threatening physical injury, and
obscenity are examples. See, e.g., Donaldson v. Read Magazine, Inc. , 333 U.S.
178 , 190–191 (1948) (fraud); Giboney v. Empire
Storage & Ice Co. , 336 U.S.
490 , 498 (1949) (speech integral to criminal conduct); McCutcheon v. Federal Election Comm’n , 572 U.S.
185 , 191–192 (2014) (plurality opinion) ( quid pro quo bribes); United States v. Dunnigan , 507 U.S.
87 , 96–97 (1993) (perjury); Virginia v. Black , 538 U.S.
343 , 359 (2003) (threats); Miller , 413 U. S., at 23
(obscenity). The First Amendment has never been thought to have
done away with all these rules. Alexander Meiklejohn reconciled
this conclusion with the constitutional text: The First Amendment
“does not forbid the abridging of speech. But, at the same time, it
does forbid the abridging of the freedom of speech.” Free Speech
and Its Relation to Self-Government 19 (1948) (emphasis deleted).
In other words, the Free Speech Clause protects a right that was
understood at the time of adoption to have certain defined limits.
See Konigsberg v. State Bar of Cal. , 366 U.S.
36 , 49, and n. 10 (1961). As explained below, the same is true
of the Free Exercise Clause. See infra , at 28–36. No one has
ever seriously argued that the Free Exercise Clause protects every
conceivable religious practice or even every conceivable form of
worship, including such things as human sacrifice. 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 represents 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 (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,”
“unrestrained,” ”exempt”); 1 Webster (“1. Being at liberty; not
being under necessity or restraint, physical or moral
. . . 5. Unconstrained; unrestrained; not under
compulsion or control”); 1 Boag 567–568 (“Being at liberty; not
being under necessity or restraint, physical or moral
. . . Unconstrained; unrestrained, not under compulsion
or control. Permitted; allowed; open; not appropriated. Not
obstructed”). 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
entitled to protection in their religious liberty” (emphasis
added)); N. Y. Const., Art. XXXVIII (1777), in id ., at
26 (“[T]he free Exercise and Enjoyment of religious Profession and
Worship, without Discrimination or Preference , shall forever
hereafter be allowed within this State to all Mankind” (emphasis
added)); S. C. Const., Art. VIII, §1 (1790), in id ., at
41 (“The free exercise and enjoyment of religious profession and
worship, without discrimination or preference , shall,
forever hereafter, be allowed within this state to all mankind”
(emphasis added)). 34 See, e.g., McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990)
(McConnell, Origins); McConnell, Free Exercise Revisionism 1109;
McConnell, Freedom From Persecution or Protection of the Rights of
Conscience?: A Critique of Justice Scalia’s Historical Arguments in City of Boerne v. Flores , 39 Wm. & Mary L. Rev.
819 (1998) (McConnell, Freedom From Persecution); Hamburger, A
Constitutional Right of Religious Exemption: An Historical
Perspective, 60 Geo. Wash. L. Rev. 915 (1992) (Hamburger, Religious
Exemption); Hamburger, More Is Less, 90 Va. L. Rev. 835 (2004)
(Hamburger, More Is Less); Laycock, Religious Liberty as Liberty, 7
J. Contemp. Legal Issues 313 (1996); Bradley, Beguiled: Free
Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L.
Rev. 245 (1991); Campbell, Note, A New Approach to Nineteenth
Century Religious Exemption Cases, 63 Stan. L. Rev. 973 (2011)
(Campbell, A New Approach); Kmiec, The Original Understanding of
the Free Exercise Clause and Religious Diversity, 59 UMKC
L. Rev. 591 (1991); Lash, The Second Adoption of the Free
Exercise Clause: Religious Exemptions Under the Fourteenth
Amendment, 88 Nw. U. L. Rev. 1106 (1994); Lombardi,
Nineteenth-Century Free Exercise Jurisprudence and the Challenge
ofPolygamy: The Relevance of Nineteenth-Century Cases and
Commentaries for Contemporary Debates About Free Exercise
Exemptions, 85 Ore. L. Rev. 369 (2006) (Lombardi, Free Exercise);
Muñoz, The Original Meaning of the Free Exercise Clause: The
Evidence From the First Congress, 31 Harv. J. L. & Pub. Pol’y
1083 (2008) (Muñoz, Original Meaning); Nestor, Note, The Original
Meaning and Significance of Early State Provisos to the Free
Exercise of Religion, 42 Harv. J. L. & Pub. Pol’y 971
(2019) (Nestor); M. Nussbaum, Liberty of Conscience 120–130 (2008);
Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004)
(Walsh). 35 McConnell,
Origins 1425 (describing Lord Baltimore’s directive to the new
Protestant governor and councilors of Maryland to refrain from
interfering with the “free exercise” of Christians, particularly
Roman Catholics). 36 Act
Concerning Religion (1649), in Cogan 17; see also McConnell,
Origins 1425. 37 See Second
Charter of Carolina (1665), in Cogan 27–28 (recognizing the right
of persons to “freely and quietly have and enjoy . . .
their Judgments and Consciences, in Matters of Religion” and
declaring that “no Person . . . shall be in any way
molested, punished, disquieted, or called in Question, for any
Differences in Opinion, or Practice in Matters of religious
Concernments, who do not actually disturb the Civil Peace”);
Charter of Delaware, Art. I (1701), in id., at 15 (ensuring
“[t]hat no person . . . who shall confess and acknowledge
One Almighty God . . . shall be in any case molested or
prejudiced, in his . . . person or estate, because of his
. . . consciencious persuasion or practice, nor
. . . to do or suffer anyother act or thing, contrary to
their religious persuasion”); Concession and Agreement of the Lords
Proprietors of the Province of New Caesarea, or New-Jersey (1664),
in id ., at 23 (declaring the right of all persons to “freely
and fully have and enjoy . . . their Judgments and
Consciences in matters of Religion throughout the said Province”
and ensuring “[t]hat no person . . . at any Time shall be
any ways molested, punished, disquieted or called in question for
any Difference in Opinion or Practice in matter of Religious
Concernments, who do not actually disturb the civil Peace of the
said Province”); Concessions and Agreements of West 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 acknowledge
the one Almighty and Eternal God, and holds themselves obliged in
Conscience to live peacably and quietly in a civil Society, shall
in no way be molested or prejudged for their Religious Perswasions
and Exercise in matters of Faith and Worship”); New York Act
Declaring . . . Rights & Priviledges (1691), in id ., at 25 (“That no Person . . . shall at any
time be any way molested, punished, disturbed, disquieted or called
in question for any Difference in Opinion, or matter of Religious
Concernment, who do not under that pretence disturb the Civil Peace
of the Province”); Charter of Privileges Granted by William Penn
(1701), in id ., at 31–32 (declaring that “no Person
. . . who shall confess and acknowledge One almighty God . . . and profess . . . themselves
obliged to live quietly under the Civil Government, shall be in any
Case molested or prejudiced . . . because of
. . . their consciencious [ sic ] Persuasion or
Practice, nor . . . suffer any other Act or Thing,
contrary to their religious Persuasion”). 38 See infra , at 34, and n. 43; N. J. Const., Art. XVIII
(1776), in Cogan 25 (“That no Person shall ever within this Colony
be deprived of the inestimable Privilege of worshipping Almighty
God in a Manner agreeable to the Dictates of his own Conscience;
nor under any Pretence whatsoever compelled to attend any Place of
Worship contrary to his own Faith and Judgment”); N. C. Decl.
of Rights §XIX (1776), in id., at 30 (“That all Men have a
natural and unalienable Right to worship Almighty God according to
the Dictates of their own Conscience”); Pa. Const., Declaration of
Rights of the Inhabitants of the State of Pa., Art. II (1776), in id., at 32 (“That all men have a natural and unalienable
right to worship Almighty God according to the dictates of their
own consciences and understanding: And that no man ought to or of
right can be compelled to attend any religious worship, or erect or
support any place of worship, or maintain any ministry, contrary
to, or against, his own free will and consent: Nor can any man, who
acknowledges the being of a God, be justly deprived or abridged of
any civil right as a citizen, on account of his religious
sentiments or peculiar mode of religious worship: And that no
authority can or ought to be vested in, or assumed by any power
whatever, that shall in any case interfere with, or in any manner
controul, the right of conscience in the free exercise of religious
worship”); Va. Declaration of Rights, Art. XVI (1776), in id., at 44 (“THAT religion, or the duty which we owe to our
Creator, and the manner of discharging it, can be directed only by
reason and conviction, not by force or violence, and therefore all
men are equally entitled to the free exercise of religion,
according to the dictates of conscience; and that it is the mutual
duty of all to practise Christian forbearance, love, and charity,
towards each other”); see also Vt. Const., ch. 1, §3 (1777), in id., at 41 (“That all Men have a natural and unalienable
Right to worship Almighty God according to the Dictates of their
own Consciences and Understanding . . . and that no
Man ought or of Right can be compelled to attend any religious
Worship, or erect, or support any Place of Worship, or maintain any
Minister contrary to the Dictates of his Conscience; nor can any
Man who professes the Protestant Religion, be justly deprived or
abridged of any civil Right, as a Citizen, on Account of his
religious Sentiment, or peculiar Mode of religious Worship, and
that no Authority can, or ought to be vested in, or assumed by any
Power whatsoever, that shall in any Case interfere with, or in any
Manner control the Rights of Conscience, in the free Exerciseof
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). 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 Licentiousness and Prophaneness; nor to the Civil
Injury, or outward Disturbance 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, anyman disturb the peace, the happiness or safety of
society ” (emphasis added)); Md. Declaration of Rights, Art. 33
(1776), in id., at 17 (“That as it is the duty of every man
to worship God in such manner as he thinks most acceptable to him,
all persons professing the christian religion are equally entitled
to protection in their religious liberty, wherefore no person ought
by any law to be molested in his person or estate on account of his
religious persuasion or profession, or for his religious practice,
unless under colour of religion any man shall disturb the
good order, peace or safety of the state, or shall infringe
the laws of morality, or injure others, in their natural, civil
or religious rights” (emphasis added)); Mass. Const., pt. I,
Art. II (1780), in id., at 20–21 (“It is the right as
well as the duty of all men in society, publickly, and at stated
seasons, to worship the SUPREME BEING , the Great Creator and
Preserver of the Universe. And no subject shall be hurt, molested,
or restrained, in his person, liberty, or estate, for worshipping GOD in the manner and season most agreeable to the dictates
of his own conscience; or for his religious profession or
sentiments; provided he doth not disturb the publick
peace, or obstruct others in their religious worship ” (emphasis
added)); N. H. Const., pt. I, Art. V (1783), in id., at 22–23 (“Every individual has a natural and
unalienable right to worship GOD according to the dictates of his
own conscience, and reason; and no subject shall be hurt, molested,
or restrained in his person, liberty or estate for worshipping GOD
in the manner and season most agreeable to the dictates of his own
conscience, . . . provided he doth not disturb the
public peace, or disturb others in their religious worship ”
(emphasis added)) ; N. Y. Const., Art. XXXVIII (1777),
in id., at 26 (“[T]he free Exercise and Enjoyment of
religious Profession and Worship, without Discrimination or
Preference, shall forever hereafter be allowed within this State to
all Mankind. Provided , That the Liberty of Conscience hereby
granted, shall not be so construed, as to excuse Acts of Licentiousness , or justify Practices inconsistent with the Peace or Safety of this State ” (some emphasis added));
Charter of Rhode Island and Providence Plantations (1663), in id., at 34 (guaranteeing free exercise for matters that “do
not Actually disturb the Civil Peace of Our said Colony ” so long as persons “[b]ehav[e] themselves Peaceably and Quietly, And [do] not Us[e] This Liberty to Licentiousness and Prophaneness; nor to the Civil Injury, or
outward Disturbance of others” (some emphasis added)); S. C.
Const., Art. VIII, §1 (1790), in id., at 41 (“The free
exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall, forever hereafter, be allowed
within this state to all mankind; provided that the liberty of
conscience thereby declared shall not be so construed as to excuse acts of licentiousness , or justify practices
inconsistent with the peace or safety of this state ”
(emphasis added)) . 44 See
also 2 Webster (“1. In a general sense , a state of quiet or
tranquility; freedom from disturbance or
agitation. . . . 2. Freedom from war with a foreign
nation; public quiet. 3. Freedom from internal commotion or civil
war. 4. Freedom from private quarrels, suits or disturbance. 5.
Freedom from agitation or disturbance by the passions, as from
fear, terror, anger, anxiety or the like; quietness of mind;
tranquillity; calmness; quiet of conscience. . . . 6.
Heavenly rest; the happiness of heaven. . . . 7. Harmony;
concord; a state of reconciliation between parties at variance. 8.
Public tranquility; that quiet, order and security which is
guarauteed by the laws; as, to keep the peace ; to break the peace ”); 2 Ash (“Rest, quiet, respite from war, respite from
tumult; reconciliation, an accommodation of
differences”). 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. Exemption from hurt, injury or
loss. . . . 3. Preservation from escape; close
custody. . . . 4. Preservation from hurt”). 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). 54 Some
late 18th century and early 19th century dictionaries provided
special definitions of the term “peace” as used in the law, and
these definitions fit the offenses on Blackstone’s list. See, e.g. , 1 Johnson (6th ed. 1785) (“That general security and
quiet which the king warrants to his subjects, and of which he
therefore avenges the violation; every forcible injury is a breach
of the king’s peace” (emphasis deleted)); 5 G. Jacob,
Law-Dictionary (1811) (“[P]articularly in law, [‘peace’] intends a
quiet behaviour towards the King and his Subjects”); Bailey
(defining “peace” in the “ Law Sense ” as “quiet and
inoffensive Behaviour towards King and Subject”). 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 authority was understood that way. New York’s
1777 Constitution demonstrates the point. As noted above, it
protected free exercise unless a person invoked that protection to
“excuse Acts of Licentiousness, or justify Practices inconsistent
with the Peace or Safety of this State.” Art. XXXVIII, in Cogan 26.
But the New York Constitution authorized the legislature to enact
laws to further broader aims, including “good government, welfare,
and prosperity.” Art. XIX, in 5 Federal and State Constitutions
2633 (F. Thorpe ed. 1909). That authority obviously goes well
beyond the prohibition of “Practices inconsistent with” the “Peace”
and “Safety” (or “Licentiousness”). See McConnell, Freedom from
Persecution 835–836. In like manner, State Constitutions and other
declarations of rights commonly proclaimed that government should
pursue broader goals, such as the promotion of “prosperity” and
“happiness.” See Nestor, Table III: Comparing the Provisos to the
Scope of Legislative Power (online source archived at
www.supremecourt.gov). 56 Mayer, The Continental Army, in A
Companion to the American Revolution 309 (J. Greene & J. Pole
eds. 2000); R. Wright, The Continental Army 153–154, 163
(1983). 57 See
The Oxford Companion to American Military History 606–608, 611 (J.
Chambers ed. 1999). 58 See
Declaration of Independence ¶ 31 (“[W]e mutually pledge to each
other our Lives, our Fortunes and our sacred Honor”); see also P.
Maier, American Scripture 152–153 (1997); Boyd, The Declaration of
Independence: The Mystery of the Lost Original, 100 Pa. Mag. Hist.
& Bio. 438, 445 (1976); L. Montross, The Reluctant Rebels 165
(1970); E. Burnett, The Continental Congress 196–197 (1941). Of the
56 signers of the Declaration of Independence, 9 were taken as
prisoners of war; 2 had sons who died; 3 had sons who were taken
captive; 9 had their homes destroyed; and 13 saw their homes
occupied, confiscated, or damaged. M. Novak, On Two Wings: Humble
Faith and Common Sense at the American Founding 157–158
(2002). 59 See
Barclay, The Historical Origins of Judicial Religious Exemptions,
96 Notre Dame L. Rev. 55, 69–73 (2020); McConnell, Free Exercise
Revisionism 1118; Campbell, A New Approach 978, 987; Lombardi, Free
Exercise 385; Campbell, Religious Neutrality in the Early Republic,
24 Regent U. L. Rev. 311, 314–315, n. 20
(2012). 60 W.
Newman & P. Halvorson, Atlas of American Religion 18
(2000). 61 Ibid. 62 The
Covenanters originated in Scotland, where they opposed the Stuart
kings’ right to rule over the Presbyterian Church. See Emery,
Church and State in the Early Republic: The Covenanters’ Radical
Critique, 25 J. L. & Religion 487, 488 (2009). They immigrated
to the United States and, in the 1790s, organized a branch of the
Reformed Presbyterian Church. Id., at 489. Members ascribe
to two foundational documents—the Scottish National Covenant of
1638 and the Solemn League and Covenant of 1643—and believe in the
supremacy of God over man in both civil and ecclesiastical matters. Id., at 448; see also J. McFeeters, The Covenanters in
America: The Voice of Their Testimony on Present Moral Issues 57
(1892). 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. 65 See
McFeeters, The Covenanters in America 121–129; id., at 122
(Covenanters “must refuse upon the grounds of honor, conscience,
and consistency, to be identified by oath or ballot with such a
political system”); id., at 129 (Covenanters “decline to
take any responsible part in the administration of civil power”);
W. Gibson & A. McLeod, Reformation Principles Exhibited, by the
Reformed Presbyterian Church in the United States of America 138
(1807) (“The juror voluntarily places himself upon oath, under the
direction of a law which is immoral. The Reformed Presbytery
declare this practice inconsistent with their Testimony, and warn
Church-members against serving on juries under the direction of the
constituted courts of law”). 66 See
O’Neall, Early History of the Judiciary of South Carolina, p. xi,
in 1 Biographical Sketches of the Bench and Bar of South Carolina
(1859); Walsh 41–42 (explaining that South Carolina “dismantled”
the “five-member constitutional court” that decided Willson and replaced it with a new high court—the South Carolina Court of
Appeals—which concurred in the opinion in Farnandis ). 67 Hamburger, Religious Exemption 928,
and n. 56 (quoting the statement of Rep. Boudinot). 68 Id., at 928, and n. 57
(quoting the statement of Rep. Benson). 69 Muñoz, Original Meaning
1115. 70 Several State Constitutions contained
both Free Exercise Clause analogs and provisions protecting
conscientious objectors, and this has been cited as evidence that
the free-exercise analogs did not confer any right to exemptions.
See id ., at 1118–1119. This argument is unpersuasive for the
reasons explained above. 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. 74 Id., at 180. 75 This
discussion does not suggest that Reynolds should be
overruled. 76 “The
clear implication was that a ‘direct’ interference would have been
unconstitutional.” McConnell, Free Exercise Revisionism
1125. 77 Our
strained attempt to square the ministerial exception with Smith highlights the tension between the two decisions. Smith held that a generally applicable law satisfies the
First Amendment if “prohibiting the exercise of religion
. . . is not the object of the [government action] but
merely the incidental effect.” 494 U. S., at 878. But the
ADA’s effect on religion in Hosanna-Tabor was “incidental”
in the sense in which the term was used in Smith . The
opinion in Hosanna-Tabor tried to distinguish Smith as involving only “outward physical acts” instead of “the faith and
mission of the church itself.” 565 U. S., at 190. But a
prohibition of peyote use surely affected “the faith and mission”
of the Native American Church, which regards the ingestion of
peyote as a sacrament. 78 Recently, some lower courts have
proceeded under yet another approach, which analyzes whether the
claims presented are sufficiently similar to those raised in the
cases that this Court purported to distinguish in Smith . See Henderson v. McMurray , 987 F.3d 997, 1006–1007 (CA11
2021); see also Illinois Bible Colleges Assn. v. Anderson , 870 F.3d 631, 641 (CA7 2017). 79 App.
367–369 (Commissioner Figueora testifying that she was appointed by
the mayor, reports ultimately to him, and considers herself part of
his administration); Phila. Home Rule Charter, Art. IX, ch. 2,
§9–200 (Removal of Appointive Officers). 80 App.
182, 365–366. Apart from the statements made by City officials,
other evidence suggested that the City was targeting CSS. For
instance, the City changed its justification for the closure of
intake to CSS numerous times. Brief for Petitioners 12–15
(describing six different justifications). And although the City’s
stated harm was that CSS’s process for certifying new families was discriminatory, it responded by prohibiting placement
with all CSS families, including those already certified. The
City’s response therefore appears to “proscribe more religious
conduct than is necessary to achieve [its] stated ends.” Lukumi , 508 U. S., at 538. 81 See, e.g., McConnell, Origins 1409; McConnell, Free Exercise
Revisionism 1109; McConnell, Freedom From Persecution 819;
Hamburger, Religious Exemption 915; Hamburger, More Is Less 835;
Laycock, 7 J. Contemp. Legal Issues 313; Bradley, 20 Hofstra L.
Rev. 245; Campbell, A New Approach 973; Kmiec, 59 UMKC L. Rev.
591; Lash, 88 Nw. U. L. Rev. 1106; Lombardi, Free Exercise 369;
Muñoz, Original Meaning 1083; Nestor 971; Nussbaum, Liberty of
Conscience, at 120–130; Walsh 1. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–123

															_________________

															SHARONELL FULTON, et al., PETITIONERS v. CITY OF PHILADELPHIA, PENNSYLVANIA, et al.

															on writ of certiorari to the united states
court of appeals for the third circuit

															[June 17, 2021]

															Justice Gorsuch, with whom Justice Thomas and
Justice Alito join, concurring in the judgment.

															The Court granted certiorari to decide whether
to overrule Employment Div., Dept. of Human Resources of
Ore. v. Smith , 494 U.S.
872 (1990). As Justice Alito’s opinion demonstrates, Smith failed to respect this Court’s precedents, was
mistaken as a matter of the Constitution’s original public meaning,
and has proven unworkable in practice. A majority of our
colleagues, however, seek to sidestep the question. They agree that
the City of Philadelphia’s treatment of Catholic Social Services
(CSS) violates the Free Exercise Clause. But, they say, there’s no
“need” or “reason” to address the error of Smith today. Ante, at 5 (majority opinion); ante , at 2 (Barrett,
J., concurring).

															On the surface it may seem a nice move, but dig
an inch deep and problems emerge. Smith exempts “neutral”
and “generally applicable” laws from First Amendment scrutiny. 494
U. S., at 878–881. The City argues that its challenged rules
qualify for that exemption because they require all foster-care
agencies—religious and non-religious alike—to recruit and certify
same-sex couples interested in serving as foster parents. For its
part, the majority assumes (without deciding) that Philadelphia’s
rule is indeed “neutral” toward religion. Ante, at 5. So to
avoid Smith ’s exemption and subject the City’s policy to
First Amendment scrutiny, the majority must carry the burden of
showing that the policy isn’t “generally applicable.”

															*

															That path turns out to be a long and lonely
one. The district court held that the City’s public accommodations
law (its Fair Practices Ordinance or FPO) is both generally
applicable and applicable to CSS. At least initially, the majority
chooses to bypass the district court’s major premise—that the FPO
qualifies as “generally applicable” under Smith . It’s a
curious choice given that the FPO applies only to certain defined
entities that qualify as public accommodations while the “generally
applicable law” in Smith was “an across-the-board criminal
prohibition” enforceable against anyone. 494 U. S., at 884.
But if the goal is to turn a big dispute of constitutional law into
a small one, the majority’s choice to focus its attack on the
district court’s minor premise—that the FPO applies to CSS as a
matter of municipal law—begins to make some sense. Still, it isn’t
exactly an obvious path. The Third Circuit did not address the
district court’s interpretation of the FPO. And not one of the over
80 briefs before us contests it. To get to where it wishes to go,
then, the majority must go it alone. So much for the adversarial
process and being “a court of review, not of first view.” Brownback v. King , 592 U. S. ___, ___, n. 4
(2021) (slip op., at 5, n. 4) (internal quotation marks
omitted).

															Trailblazing through the Philadelphia city code
turns out to be no walk in the park either. As the district court
observed, the City’s FPO defines “public accommodations”
expansively to include “[a]ny provider” that “solicits or accepts
patronage” of “the public or whose . . . services [or]
facilities” are “made available to the public.” App. to Pet. for
Cert. 77a (alteration omitted; emphasis deleted). And, the district
court held, this definition covers CSS because (among other things)
it “publicly solicits prospective foster parents” and “provides
professional ‘services’ to the public.” Id., at 78a. All of
which would seem to block the majority’s way. So how does it get
around that problem?

															It changes the conversation. The majority
ignores the FPO’s expansive definition of “public accommodations.”
It ignores the reason the district court offered for why CSS falls
within that definition. Instead, it asks us to look to a different public accommodations law—a Commonwealth of
Pennsylvania public accommodations statute. See ante, at
10–11 (discussing Pa. Stat. Ann., Tit. 43, §954( l ) (Purdon
Cum. Supp. 2009)). And, the majority promises, CSS fails to qualify
as a public accommodation under the terms of that law. But
why should we ignore the City’s law and look to the Commonwealth’s?
No one knows because the majority doesn’t say.

															Even playing along with this statutory shell
game doesn’t solve the problem. The majority highlights the fact
that the state law lists various examples of public
accommodations—including hotels, restaurants, and swimming pools. Ante, at 11. The majority then argues that foster agencies
fail to qualify as public accommodations because, unlike these
listed entities, foster agencies “involv[e] a customized and
selective assessment.” Ibid. But where does that distinction come from? Not the text of the state statute, not state
case law, and certainly not from the briefs. The majority just
declares it—a new rule of Pennsylvania common law handed down by
the United States Supreme Court.

															The majority’s gloss on state law isn’t just
novel, it’s probably wrong. While the statute lists hotels,
restaurants, and swimming pools as examples of public
accommodations, it also lists over 40 other kinds of
institutions—and the statute emphasizes that these examples are
illustrative, not exhaustive. See §954( l ). Among its
illustrations, too, the statute offers public “colleges and
universities” as examples of public accommodations. Ibid. Often these institutions do engage in a “customized and
selective assessment” of their clients (students) and employees
(faculty). And if they can qualify as public accommodations
under the state statute, it isn’t exactly clear why foster agencies
cannot. What does the majority have to say about this problem?
Again, silence.

															If anything, the majority’s next move only adds
to the confusion. It denies cooking up any of these arguments on
its own. It says it merely means to “agree with CSS’s position
. . . that its ‘foster services do not constitute a
“public accommodation” under the City’s Fair Practices
Ordinance.’ ” Ante, at 13 (quoting App. to Pet. for
Cert. 159a). But CSS’s cited “position”—which comes from a letter
it sent to the City before litigation even began—includes nothing
like the majority’s convoluted chain of reasoning involving a
separate state statute. Id. , at 159a–160a. Instead, CSS’s
letter contends that the organization’s services do not qualify as
“public accommodations” because they are “only available to at-risk
children who have been removed by the state and are in need of a
loving home.” Ibid. The majority tells us with assurance
that it “agree[s] with” this position, adding that it would be
“incongru[ous]” to “dee[m] a private religious foster agency a
public accommodation.” Ante, at 12.

															What to make of all this? Maybe this part of the
majority opinion should be read only as reaching for
something—anything—to support its curious separate-statute move.
But maybe the majority means to reject the district court’s major
premise after all—suggesting it would be incongruous for public
accommodations laws to qualify as generally applicable under Smith because they do not apply to everyone. Or maybe the
majority means to invoke a canon of constitutional avoidance:
Before concluding that a public accommodations law is generally
applicable under Smith , courts must ask themselves whether
it would be “incongru[ous]” to apply that law to religious groups.
Maybe all this ambiguity is deliberate, maybe not. The only thing
certain here is that the majority’s attempt to cloak itself in
CSS’s argument introduces more questions than answers.

															*

															Still that’s not the end of it. Even now, the
majority’s circumnavigation of Smith remains only half
complete. The City argues that, in addition to the FPO, another generally applicable nondiscrimination rule can be
found in §15.1 of its contract with CSS. That provision
independently instructs that foster service providers “shall not
discriminate or permit discrimination against any individual on the
basis of . . . sexual orientation.” Supp. App. to Brief
for City Respondents 31. This provision, the City contends, amounts
to a second and separate rule of general applicability exempt from
First Amendment scrutiny under Smith . Once more, the
majority must find some way around the problem. Its attempt to do
so proceeds in three steps.

															First, the majority directs our attention to
another provision of the contract—§3.21. See ante, at
7–9 . Entitled “Rejection of Referral,” this provision
prohibits discrimination based on sexual orientation, race,
religion, or other grounds “unless an exception is granted” in the
government’s “sole discretion.” Supp. App. to Brief for City
Respondents 16–17. Clearly, the majority says, that provision doesn’t state a generally applicable rule against
discrimination because it expressly contemplates “exceptions.” Ante, at 8.

															But how does that help? As §3.21’s title
indicates, the provision contemplates exceptions only when it comes
to the referral stage of the foster process—where the government
seeks to place a particular child with an available foster family.
See A. Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 221 (2012) (“The title and headings are permissible
indicators of meaning” (boldface deleted)). So, for example, the
City has taken race into account when placing a child who “used
racial slurs” to avoid placing him with parents “of that race.” Tr.
of Oral Arg. 61. Meanwhile, our case has nothing to do with the
referral — or placement—stage of the foster process. This case
concerns the recruitment and certification stages—where foster
agencies like CSS screen and enroll adults who wish to serve as
foster parents. And in those stages of the foster process,
§15.1 seems to prohibit discrimination absolutely.

															That difficulty leads the majority to its second
step. It asks us to ignore §3.21’s title and its limited
application to the referral stage. See ante, at 9. Instead,
the majority suggests, we should reconceive §3.21 as authorizing
exceptions to the City’s nondiscrimination rule at every stage of the foster process. Once we do that, the majority
stresses, §3.21’s reservation of discretion is irreconcilable with
§15.1’s blanket prohibition against discrimination. See ante, at 9 . This sets up the majority’s final move—where the
real magic happens. Having conjured a conflict within the contract,
the majority devises its own solution. It points to some state
court decisions that, it says, set forth the “rule” that
Pennsylvania courts shouldn’t interpret one provision in a contract
“to annul” another part. Ibid. To avoid nullifying §3.21’s
reservation of discretion, the majority insists, it has no choice
but to rewrite §15.1. All so that— voila —§15.1 now contains its own parallel reservation of discretion. See ante, at 9 . As rewritten, the contract contains no generally
applicable rule against discrimination anywhere in the foster
process.

															From start to finish, it is a dizzying series of
maneuvers. The majority changes the terms of the parties’ contract,
adopting an uncharitably broad reading (really revision) of §3.21.
It asks us to ignore the usual rule that a more specific
contractual provision can comfortably coexist with a more general
one. And it proceeds to resolve a conflict it created by rewriting
§15.1. Once more, too, no party, amicus , or lower court
argued for any of this.

															To be sure, the majority again claims
otherwise—representing that it merely adopts the arguments of CSS
and the United States. See ante, at 10. But here, too, the
majority’s representation raises rather than resolves questions.
Instead of pursuing anything like the majority’s contract
arguments, CSS and the United States suggest that §3.21
“ alone triggers strict scrutiny,” Reply Brief 5 (emphasis
added), because that provision authorizes the City “to grant formal
exemptions from its policy ” of nondiscrimination, Brief for
United States as Amicus Curiae 26 (emphasis added). On this
theory, it’s irrelevant whether §3.21 or §15.1 reserve discretion
to grant exemptions at all stages of the process or at only one
stage. Instead, the City’s power to grant exemptions from its
nondiscrimination policy anywhere “undercuts its asserted
interests” and thus “trigger[s] strict scrutiny” for applying the
policy everywhere . Id., at 21. Exceptions for one
means strict scrutiny for all. See, e.g., Tandon v. Newsom , ante , at 1–2 ( per curiam ). All of
which leaves us to wonder: Is the majority just stretching to claim
some cover for its novel arguments? Or does it actually mean to
adopt the theory it professes to adopt?

															*

															Given all the maneuvering, it’s hard not to
wonder if the majority is so anxious to say nothing about Smith ’s fate that it is willing to say pretty much anything
about municipal law and the parties’ briefs. One way or another,
the majority seems determined to declare there is no “need” or
“reason” to revisit Smith today. A nte, at 5 (majority
opinion); ante, at 2 (Barrett, J., concurring).

															But tell that to CSS. Its litigation has already
lasted years—and today’s (ir)resolution promises more of the same.
Had we followed the path Justice Alito outlines—holding that the
City’s rules cannot avoid strict scrutiny even if they qualify as
neutral and generally applicable—this case would end today.
Instead, the majority’s course guarantees that this litigation is
only getting started. As the final arbiter of state law, the
Pennsylvania Supreme Court can effectively overrule the majority’s
reading of the Commonwealth’s public accommodations law. The City
can revise its FPO to make even plainer still that its law does
encompass foster services. Or with a flick of a pen, municipal
lawyers may rewrite the City’s contract to close the §3.21
loophole.

															Once any of that happens, CSS will find itself
back where it started. The City has made clear that it will never
tolerate CSS carrying out its foster-care mission in accordance
with its sincerely held religious beliefs. To the City, it makes no
difference that CSS has not denied service to a single same-sex
couple; that dozens of other foster agencies stand willing to serve
same-sex couples; or that CSS is committed to help any inquiring
same-sex couples find those other agencies. The City has expressed
its determination to put CSS to a choice: Give up your sincerely
held religious beliefs or give up serving foster children and
families. If CSS is unwilling to provide foster-care services to
same-sex couples, the City prefers that CSS provide no foster-care
services at all. This litigation thus promises to slog on for years
to come, consuming time and resources in court that could be better
spent serving children. And throughout it all, the opacity of the
majority’s professed endorsement of CSS’s arguments ensures the
parties will be forced to devote resources to the unenviable task
of debating what it even means .

															Nor will CSS bear the costs of the Court’s
indecision alone. Individuals and groups across the country will
pay the price—in dollars, in time, and in continued uncertainty
about their religious liberties. Consider Jack Phillips, the baker
whose religious beliefs prevented him from creating custom cakes to
celebrate same-sex weddings. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___ (2018).
After being forced to litigate all the way to the Supreme Court, we
ruled for him on narrow grounds similar to those the majority
invokes today. Because certain government officials responsible for
deciding Mr. Phillips’s compliance with a local public
accommodations law uttered statements exhibiting hostility to his
religion, the Court held, those officials failed to act “neutrally”
under Smith . See 584 U. S ., at ___–___ (slip
op., at 16–18). But with Smith still on the books, all that
victory assured Mr. Phillips was a new round of litigation—with
officials now presumably more careful about admitting their
motives. See Associated Press, Lakewood Baker Jack Phillips Sued
for Refusing Gender Transition Cake (Mar. 22, 2021),
https : / / denver . cbslocal. com / 2021 / 03 / 22 / jack - phillips -
masterpiece-cakeshop-lakewood-transgender/. A nine-year odyssey
thus barrels on. No doubt, too, those who cannot afford such
endless litigation under Smith ’s regime have been and will
continue to be forced to forfeit religious freedom that the
Constitution protects.

															The costs of today’s indecision fall on lower
courts too. As recent cases involving COVID–19 regulations
highlight, judges across the country continue to struggle to
understand and apply Smith ’s test even thirty years after it
was announced. In the last nine months alone, this Court has had to
intervene at least half a dozen times to clarify how Smith works. See, e.g., Tandon , ante, at p. 1; Roman Catholic Diocese of Brooklyn v. Cuomo , 592
U. S. ___ (2020) ( per curiam ); High Plains
Harvest Church v. Polis , 592 U. S ___ (2020). To be
sure, this Court began to resolve at least some of the confusion
surrounding Smith ’s application in Tandon . But Tandon treated the symptoms, not the underlying ailment. We
owe it to the parties, to religious believers, and to our
colleagues on the lower courts to cure the problem this Court
created.

															It’s not as if we don’t know the right answer. Smith has been criticized since the day it was decided. No
fewer than ten Justices—including six sitting Justices—have
questioned its fidelity to the Constitution. See ante, at
9–10 (Alito, J., concurring in judgment); ante , at 1
(Barrett, J., concurring). The Court granted certiorari in this
case to resolve its fate. The parties and amici responded
with over 80 thoughtful briefs addressing every angle of the
problem. Justice Alito has offered a comprehensive opinion
explaining why Smith should be overruled. And not a single
Justice has lifted a pen to defend the decision. So what are we
waiting for?

															We hardly need to “wrestle” today with every
conceivable question that might follow from recognizing Smith was wrong. See ante, at 2 (Barrett, J.,
concurring). To be sure, any time this Court turns from misguided
precedent back toward the Constitution’s original public meaning,
challenging questions may arise across a large field of cases and
controversies. But that’s no excuse for refusing to apply the
original public meaning in the dispute actually before us. Rather
than adhere to Smith until we settle on some “grand unified
theory” of the Free Exercise Clause for all future cases until the
end of time, see American Legion v. American Humanist
Assn. , 588 U. S. ___, ___ (2019) (plurality opinion) (slip
op., at 24), the Court should overrule it now, set us back on the
correct course, and address each case as it comes.

															What possible benefit does the majority see in
its studious indecision about Smith when the costs are so
many? The particular appeal before us arises at the intersection of
public accommodations laws and the First Amendment; it involves
same-sex couples and the Catholic Church. Perhaps our colleagues
believe today’s circuitous path will at least steer the Court
around the controversial subject matter and avoid “picking a side.”
But refusing to give CSS the benefit of what we know to be the
correct interpretation of the Constitution is picking a
side. Smith committed a constitutional error. Only we can
fix it. Dodging the question 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.

Summary: The Supreme Court ruled in favor of Catholic Social Services (CSS), a foster care agency that was denied a contract renewal by the City of Philadelphia due to its religious beliefs about same-sex marriage. The Court found that the City's actions violated the First Amendment's protection of religious freedom. The decision highlights the long history of the Catholic Church's involvement in foster care and the importance of cooperation between the City and private foster agencies. The Court criticized the previous decision in Employment Division v. Smith, which had allowed for laws that burden religious practices as long as they are generally applicable. The Court suggested that Smith had been wrongly decided and should be overruled, but ultimately did not overrule it in this case. The decision emphasized the need to respect religious beliefs and protect religious freedom in similar cases.