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1/25 I've finally had the chance to read the Fulton v. City of Philadelphia oral argument transcript. A thread below 
2/25 First let's start with some key takeaways: Takeaway #1: This is a complicated case factually and doctrinally, but any of the outcomes that appear most likely *should* not widely affect whether LGBTQ inclusive anti-discrimination protections are enforceable.
3/25 Takeaway #2: The one potential outcome in Fulton that would broadly jeopardize the enforceability of anti-discrimination protections is overruling Emp. Division v. Smith. Few of the Justices even mentioned this possibility at oral argument, and it does not appear likely.
4/25 Takeaway #3: Oral argument suggests that the Court *might* use Fulton to expand the contexts in which granting exemptions from a neutral anti-discrimination policy, or otherwise applying it inconsistently, can be a basis for triggering strict scrutiny.
5/25 Takeaway #4: Even if the Court does this, it is not clear that CSS will win, since the record is factually disputed on whether the City inconsistently applied its policy, and the lower court factual findings are in the City’s favor.
6/25 Takeaway #5: Even if the outcome in this case is a loss because of its particular facts, if the Court affirms Smith anti-discrimination laws will largely remain enforceable. It is important for those of us who support the pro-LGBTQ side of the case not to muddy that message.
7/25 Further background: Key to understanding the stakes in Fulton is Employment Division v. Smith. Smith held that “the right of free exercise does not relieve an individual of the obligation to comply with a neutral law of general applicability.”
8/25 This means that individuals and organizations can be required to comply with neutral, generally applicable laws, even where they conflict with religious beliefs.
9/25 As others have pointed out, the oral argument in Fulton suggests that there is not a major appetite on the Court for overruling Smith. Why is this so important? Because if Smith is not overruled, this case will have only limited impact on the enforceability of discrim law.
10/25 The S CT has already said that discrim laws are as a general matter “neutral laws of general applicability.” This means that religious entities can be required to abide by them, without any special showing, even where it conflicts with their religious beliefs.
11/25 But this does *not* mean that the City will necessarily win this case. Under Smith and later cases, there are still circumstances in which strict scrutiny may be triggered, even if a law on its face appears to be facially neutral.
12/25 Most notably, where a law is intended to or designed to target religious practice, it will not fall under Smith. Hialeah.There does not appear to be any plausible argument here that the City’s anti-discrimination policy as a whole was intended to target religious practice.
13/25 However, there are other potential paths to strict scrutiny here. Specifically, much of the discussion at oral argument *did* relate to the question of to what extent the City has permitted other deviations from the policy.
14/25 Why is this relevant? Because both Smith and subsequent cases have suggested that where government allows exemptions from a neutral law for secular, but not religious reasons, that that may trigger strict scrutiny.
15/25 There are two possible understandings of this “exceptions” language: First, we could think of such an uneven pattern of exemptions as evidence of anti-religious bias or singling out religion.
16/25 If this is the relevance of exceptions, the City should likely win, since the lower courts found as a matter of fact that they did not single out religion.
17/25 The other possible understanding of the Ct’s language on the relevance of exceptions to the applicability of Smith is that the mere existence of discretion and inconsistent application takes us out of Smith, regardless of whether it shows anti-religious bias or targeting.
18/25 This other understanding would have broad implications indeed, since it would mean, for example, that criminal laws, which have extensive discretion in enforcement (and inconsistent application as enforced) would not fall under Smith, and would be subject to strict scrutiny
19/25 Since Smith itself addressed a criminal drug law, and found it not subject to strict scrutiny, this reading of Smith seems obviously incorrect. Thus, there are good reasons for the Court to reject this argument, though it was not clear at oral argument if they will do so.
20/25 In short, the likely worst case scenario for LGBTQ rights appears to be that the Ct would find that where discrim laws or policies are inconsistently applied that religious exemptions can be requested, and have to be granted absent satisfying the strict scrutiny standard.
21/25 This would be a bad outcome & might create problems elsewhere in Free Exercise jurisprudence, but it should not widely impact on the enforceability of discrim laws. So long as gov'ts consistently apply their policies, they should be able to continue to do so under Smith.
22/25 It also seemed possible that this case will be a win for Plaintiffs, with Justices Gorsuch and Chief Justice Roberts joining the liberal Justices for a majority.
23/25 Chief Justice Roberts seemed sympathetic to the contracting aspect of the case, and Justice Gorsuch seemed at least potentially sympathetic to the idea that there factually has been now showing here of the type of exceptions that would take us out of Smith.
24/25 In short, the worst case scenario from Fulton--overruling of Smith--seems unlikely to occur. This means that anti-discrimination laws, as neutral laws of general applicability, should generally remain enforceable.
25/25 However, Fulton may continue the Court's incremental expansion of the circumstances in which religious exemptions are available. It will be important to look for whatever language the court has on where inconsistencies or exemptions trigger SS.
