Prof. Andrew Koppelman (Northwestern) Guest-Blogging About Religious Liberty

I'm delighted to report that Prof. Andrew Koppelman (Northwestern) will be guest-blogging this coming week about his new article, "The Increasingly Dangerous Variants of the 'Most-Favored-Nation' Theory of Religious Liberty":

The First Amendment prohibits discrimination against religion. In a short time, mostly in cases challenging efforts to contain the Covid pandemic, the Supreme Court has transformed this familiar rule into new, more exacting doctrines that might exempt religious people from almost any law. This article taxonomizes these doctrinal variants, showing that they are dangerous, indefensible mutations of the most-favored-nation (MFN) theory of religious discrimination. These variants go well beyond the most attractive rationale for MFN. Their implications are so anarchic that the Court cannot possibly pursue them to the limits of their logic. Their deployment in practice will necessarily be selective, and is likely to benefit claimants the judges like and to constrain laws the judges dislike.

I've long been troubled by the relatively aggressive versions of this "most-favored-nation" theory, starting with my A Common-Law Model for Religious Exemptions article in 1999 (pp. 1539-42) on to my Fulton v. City of Philadelphia amicus brief (pp. 23-30); and I'm therefore particularly glad to see Prof. Koppelman's contribution.

Comments

[Michael P]

I know, right? Only substantive due process is supposed to be so malleable, and it's supposed to go in the opposite direction!

[AmosArch]

So people are pissed off at that the Supreme Court treated homes where religious worship occurs like shops (because covid is aware and respects the phenomenon of grocery shopping and buying pot and going to see ball games but not Jesus) and this is somehow a step on the road to a Christian theocracy?

[Josh R]

Homes were treated the same for both religious and secular purposes.

[AmosArch]

that makes zero sense for the supposed purpose of the laws. Are you telling me covid can sense whether its in a house or a store and respects the difference? If atheists want they can also form their own little powwow groups in homes, not that it matters since all these regulations are superfluous now.

[Josh R]

From Kagan's dissent in Tandon:like frequenting stores or salons [...] pose lesser risks for at least three reasons. First, “when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting,” with participants “more likely to be involved in prolonged conversations.” Second, “private houses are typically smaller and less ventilated than commercial establishments.” And third,
“social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.”

[AmosArch]

This is called assuming and stereotyping and would never fly when it involves things leftoids enjoy.

[Josh R]

It was the findings of fact from below based on testimony from public health experts. The question I hope Koppelman tackles is how much scrutiny should courts give to the government's assertions that an exception is not comparable to the claimed religious practice. My inclination is to give considerable leeway to the government, particularly in areas such as public health where courts are not competent to judge.

[y81]

These are the public health experts who told us that Orthodox Jewish funerals and motorcycle rallies spread COVID, but Black Lives Matter demonstrations do not? Why should I or anyone else trust those people?

[David Nieporent]

It is not actually called either of those things.

[AmosArch]

By the people who support it. Just like gatherings for things you don't support are dangerous covid spreading events but gatherings for things you do support like BLM rioting are 'important social justice dialogue' that are magically immune to covid.

[SRG]

"Kavanaugh claimed that the state had not carried that burden, that the restriction was “inexplicably applied to one group and exempted from another." But the distinction was not inexplicable. The state and the district court had proffered an explanation, which Roberts cited: “the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods." What was inexplicable was Kavanaugh’s silence about that argument"

Capeesh?

[Krayt]

Fair enough. During this period I wondered at the facetious nature of the claimed equality, when clearly these were inside activities. Still, that ignores the claims of necessary businesses.

My argument is government doesn't get the honor of placing religion on a lower tier than necessary businesses.

Secondly, during the BLM protests, much loud claiming was made this protest gets the honor of ignoring mandates, to say nothing of bans.

When asked, the scientists loudly trumpeting the science were broken to the heel of the party leaders wielding cancellation: discrimination of that sort is so long and pervasive, not ending it with that opportunity was a greater evil than additional COVID deaths.

Now you might say, "Outside, separated, wearing masks", except that didn't help people walking on the beach, nor a religious service intended to be held in the parking lot in cars.

It was just a craven reaction under threat of cancellation.

If you're gonna point out historical evils as overriding COVID, religion's multi-millenial terrorism astride human existence surely qualifies similarly, if not in much greater magnitude.

[Josh R]

If it is the case that some particular religious conduct is more likely to spread COVID than conduct at a business (as explained by Roberts' quote), I'm not following whether the business is necessary or not makes a difference. All that means is the state has discriminated against non-necessary businesses, which has no relevance to the particular religious conduct in question.

[Davy C]

You can't say religion is non-necessary and still be following the First Amendment.

[Josh R]

Even assuming you are correct for the sake of argument, it is still the case that some particular (necessary) religious conduct spreads COVID more easily than necessary business conduct. That is in our hypothetical, being necessary is not the sole reason why the business was allowed to open. It had to be both necessary and less likely to spread COVID.

[Stephen Lathrop]

Davy C — You can and should say the Covid-spreading subset of religious activities are not as necessary as a less-Covid-spreading activity necessary to get people fed. Also? The test cannot be the effect only on religionists. Religionists cannot be construed to possess a right not enjoyed by others to spread deadly contagion during a pandemic.

[Brett Bellmore]

"You can and should say the Covid-spreading subset of religious activities are not as necessary as a less-Covid-spreading activity necessary to get people fed."

You can certainly say it. And you can hold a moral conviction that it's true. You just won't have the Constitution on your side.

But the 1st amendment does protect the right to advocate constitutional violations.

[ReaderY]

The First Amendment proscribes prohibiting the free exercise of religion. This is not quite the same thing as discriminating against religion, which has been interpreted to cover significantly less. Whether that distinguishing interpretation is coreect or not, the two at least shouldn’t be automatically confounded.

My view on what constitutes a rule of general application under Smith is what might be called “weak Alito,” a weaker version than Alito articulated in Police v. Newark. Under this view, providing exceptions does not automatically mean that religion also gets an exception. Providing an exception to murder like self-defense doesn’t automatically mean that Jihadi John gets an exemption for his religious activities.

However, exempting other things but not religion, in my view, moves things back to pre-Smith heightened scrutiny. And I think there has to be a heightened scrutiny basis for the exceptions, which do not get a blank check. This lets a state provide for medical exemptions without also having to give religious exemptions. But it can’t exempt gatherings at casinos without also exempting gatherings at churches.

There will obviously be disagreements about what constitutes a compelling interest. The boundary is not going to be clear. But I think the extremes are pretty clear, and the boundaries can be worked out in common-law fashion like other legal categorical boundaries. It’spretty clear that serious medical complications are a compelling interest, while keeping casinos open are not.

In the original Police v. Newark case, I disagree with Alito that giving a medical exemption automatically means the government has to give a religious exemption. In my view, the existence of the exemption merely throws things back to pre-Smith law. And I think medical exceptions, and treating religious and medical needs differently, generally pass pre-Smith strict scrutiny. However, I think the no-beard rule itself, with or without a medical exemption, fails heightened scrutiny. I just don’t think a city has a compelling interest in having its police force all have the same facial appearance. It’s true the military was allowed this in the Weinberger “yarmulke” case. But I don’t think civilian institutions like a police force get the same degree of near-automatic deference as the military historically has. So I think the no-beard rule fails pre-Smith strict scrutiny, and the Muslim police officer should be allowed to wear a beard on those grounds.

But in contrast to the no-beard rule in Police v. Newark, I think most vaccine rules with medical exemptions would pass strict scrutiny, both for the vaccine rule itself and for the exemption. For this reason, I don’t think religion gets a pass. But if a group like casino operators that simply happened to have good lobbyists got a pass for their activity, there wouldn’t be a compelling interest for that exemption. I think that would make the situation different. By opening itself up to general exemptions well beyond those that are narrowly justifiable, the state also opens the door to religious exceptions.

I am in general in favor of strong protection for religious liberty, but not absolute or unlimited protection. I think the Free Exercise Clause gives a pass from things like having to press the crosswalk signal button on the Sabbath, following the state’s prescribed slaughtering methods for meat, wearing a school uniform considered too immodest, appearing in court on religious holidays, and many other things. But it doesn’t get a pass from critical, historically compelling-interest rules enforced with only narrow and well-justifiable exemptions.

[Josh R]

I seem to recall that religious objectors lost a lot of cases between Verner and Smith, I believe to the point that strict scrutiny was characterized as "feeble in fact."

[Dan Schiavetta]

I wonder if he'll remark on whether Kennedy v. Bremerton would have turned out differently with a Muslim coach, or even a Jewish one.

[SRG]

Hell, Kennedy would have turned out differently if Gorsuch et al had been forced to address the actual facts, rather than what Gorsuch claimed.

[AmosArch]

It wouldn't have gotten to the supreme court because everybody with power would have been okay with it and the stray person who complained would have been canceled and fired from a twitter campaign.

[Sarcastr0]

Wow do you have a skewed view of how stuff works for Muslims. And Jews who practice.

[JD85]

The case has been pointedly ignored on the blog, so it will be nice to see any coverage of it

[SRG]

Untrue: https://reason.com/search/bremerton/

[SRG]

More Gorsuch bullshit:

"Gorsuch declared that “medical exemptions and religious exemptions are on comparable footing when it comes to the State’s asserted interests.” One wishes he had been able to show that sentence to public health experts (who had tried in vain to educate him) before he published it."

[Brett Bellmore]

One wishes that somebody could point out the line in the 1st amendment saying, "Congress shall make no law respecting an establishment of medicine, nor prohibiting its free exercise."; It's unavoidably the case that, in comparing medical exemptions, and religious exemptions, that only one of them can point to actual language in the Constitution.

That HAS to put them on a different level, or what's the point of the 1st amendment?

[Josh R]

Firstly, you are begging the question that "free exercise" means religious conduct is exempt if any secular conduct is. Secondly, medicine and religion are on different levels. Only the latter is constitutionally protected from discrimination.

[Kazinski]

Yeah but you seem to be missing that it wasn't as much a first amendment case as a RFRA case:
"Religious Freedom Restoration Act of 1993 - Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."
https://www.congress.gov/bill/103rd-congress/house-bill/1308

Obviously in the Kennedy case, the school district showed neither they were furthering a compelling government interest, keeping a football coach from praying doesn't seem all that compelling to me, but petty fits well.

[SRG]

1. As Koppelman points out, keeping people alive is a compelling government interest. And if you want to go all in on 1A, well, then, human sacrifice in the name of religion is AOK. TBH if someone wants to endanger everyone else by refusing medical treatment on religious grounds, then it's legitimate to use such force as is reasonably necessary to prevent that endangerment.

The point Koppelman makes - and I assume that neither Brett nor Kaz have read the article from front to back - is that under the new, er, Covenant, religious liberty basically takes precedence even if the consequences are adverse.

When the Court licensed indoor gatherings that certainly spread Covid, did the Court not bring about the deaths of innocent people for the sake of other people’s religious beliefs? The Court protects human sacrifice so long as it is actuarial.

2. The "obviously" in the Kennedy case is Gorsuch's misdirection. Kennedy was never stopped from praying in private. But he chose to pray on the 50-yard line. And Gorsuch seemed suspiciously ignorant about the influence of HS coaches.

[Brett Bellmore]

Under the 1st amendment, protecting religious liberty is also a compelling government interest. It can't be less than that, there's a direct constitutional command on the topic.

(By the way, I'm a regular reader at Balkinization, you may rest assured that I do read Koppelman, even if I often disagree with him.)

You can't just say that protecting human life is a compelling governmental interest, as though that's a wins every time trump card. Compelling government interests can still lose, if they're up against other compelling government interests, or direct constitutional commands.

Especially if they're only mildly implicated. We're not talking about attending a church service being a death sentence here, we're talking about a slight increment of risk of contracting a disease that despite millions of cases was most of the time asymptomatic or about the same as a head cold, unless you had serious comorbidities.

[Josh R]

I'm not sure what case you are referring to, but RFRA only applies to federal law.

[MoreCurious]

Jesus said that whenever you pray, do not be like the hypocrites, for they love to stand and pray in the synagogues and at the street corners so that they may be seen by others. But whenever you pray, go into your room and shut the door and pray to your Father who is in secret, and your Father who sees in secret will reward you. I wonder what Jesus and the Father would say about praying in public on the fifty-yard line following a football game.

[Dan Schiavetta]

Good point.

Matthew 6:5-6

[Brett Bellmore]

Definitely a palpable hit. The coach won't be storing up treasures in heaven by ostentatious public prayer like that.

Which isn't, of course, the same question as whether he's got a 1st amendment right to do it. Jesus wouldn't have been very impressed with Orthodox Jews making a great show of not even pressing buttons on the Sabbath, either, but that sort of thing gets accommodations.

[David Nieporent]

I mean, that's pretty different. God doesn't care about ordinary prayer, but he has a lot riding on the outcome of a football game.

[Kazinski]

A lot of times you can be intentionally dense, but you're on target this time.

Its pretty clear God does care about football games, because after almost every football game I hear someone thanking god for letting them win.

I mean one or two football games can be happenstance, but almost every game? And I've never heard a player say god screwed up and let the wrong team win, although I've heard a lot of bettors saying god screwed them over, in more colorful language, which is hardly contradictory.

[apedad]

That's why they play on Sundays!

[Martinned]

Exactly, on the day after the Sabbath.

[y81]

Jesus was condemning public prayer in times and places when it's popular. He would have supported it in situations where the state proscribes it.

[bernard11]

Would Jesus also have said,

"You need to pray right now, on the 50-yard line, or it;s no good. No waiting twenty minutes, or until you get home. Those prayers won't count."

[Sarcastr0]

Man good thing you got that inside line into what Jesus would have liked!

[Kazinski]

I think Jesus would say "Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's.” ...but don't pay any attention to hyperventilating law professors or other atheists.

But I'm an atheist so feel free to ignore me too.

[legalizeshrooms]

Depends on the purpose of the prayer. If you are praying for a mans healing, it may be good to pray over the sick man’s bed.

On the other hand, if you are praying for peoples heads to explode, you do it on the fifty yard line.

[Martinned]

If you are praying for a mans healing, it may be good to pray over the sick man’s bed.

Because otherwise God is confused about whose health you have in mind?

[Kazinski]

Then what the hell was Jesus doing preaching to the multitudes?

[Martinned]

Preaching?

[The Margrave of Azilia]

The First Amendment doesn't protect heretics who pray in public.

[Ed Grinberg]

The First Amendment protects them. But the cops don't.
https://en.wikipedia.org/wiki/Unite_the_Right_rally

[bevis the lumberjack]

"As Koppelman points out, keeping people alive is a compelling government interest. And if you want to go all in on 1A, well, then, human sacrifice in the name of religion is AOK"

Well, apparently not if it involves the free assembly rights of a favored political group, then it's every person for themselves.

[Intelligent Mr Toad]

One of the more interesting developments in abortion litigation now is the Florida case L’Dor Va-Dor Vs. DeSantis & State of Florida, in which a synagogue is arguing that the new restrictions on abortion violate the members' religious freedom. The most widely-accepted and traditional Jewish law regarding abortion requires that an abortion be done if a pregnancy is dangerous for the patient's life or health, and in some other cases as well.

https://www.newsweek.com/synagogue-sues-florida-over-abortion-ban-violating-religious-freedoms-1715835

[SRG]

I love that case. I predict that they lose all the way up to and including the Supreme Court with Gorsuch and Alito tying themselves in knots explaining why religious liberty doesn't work here.

[Brett Bellmore]

I really doubt much in the way of knots will be required. It's a question of how dangerous, after all.

[Krayt]

Abortion was always a thing unto itself, as it involved the baby, which some said had rights not to be killed, and others, no.

In the current climate, I doubt you will get yo a state where religion requires abortion, thus making it legal, any more than a legitimate religion requiring sacrifice or cannibalism would make murder legal.

Set against that is how quickly anti-abortion folks abandoned that core principle of involvement with someone else, and put gay rights or birth control on deck, things busibodies have no damned interest in.

But that's politics. Both sides are lousy with sticking their noses in each others' business.

[Kazinski]

I think the courts will end up saying "if a pregnancy is dangerous for the patient's life or health" too, but its ok to regulate what the standard for "dangerous" is and the proper medical authorities to make that determination. The failed democratic legislation which said "any practitioner" including people with no medical degree probably won't cut it in some states.

[John F. Carr]

I did not see any plaintiff with standing in the early coverage of the lawsuit. This case does not look like it meets the "capable of repetition but evading review" standard that gave us _Roe v. Wade_ too late to matter in Roe's case. The change in Florida law only affects women between 15 and 24 weeks pregnant who are not at "serious" risk of death or major physical injury. If one of those comes up the district court judge can make a decision one way or the other and the appeals court can declare the case moot.

[The Margrave of Azilia]

Choose reason. Every time (except the magazine Reason, don't choose that).

By the time you're a snotty adolescent you should have learned to reject conservative Christianity.

Leave all that behind along with all the clingers, who verily will be replaced, and there will be wailing and gnashing of teeth.

Instead, choose one of those religions practiced by people in blue states and cities. The future belongs to them, after all.

Choose left-wing evangelicalism. And Islam. And Hinduism. And Rastafarianism, crystal-gazing, astrology, wicca, and Marxism.

Reasonable religions.

[apedad]

You know what?

Just get rid of the religious exemption for taxes and I think I could disregard the rest of the bullshit.

[Brett Bellmore]

So, only secular non-profits get tax exemptions?

[apedad]

Nope!

That would unconstitutional too.

Just take the secular/religious factor out of the equation for tax exemptions.

There's a building?

Tax it (or not).

They sell something?

Tax it (or not).

[Krayt]

Then you end with a situation where a law, taxes, prevents the free exercise of religion, when the church is seized.

Given the omnipresence of the "GET RELIGION THRU TAXES!" sentiment of so many of my fellow atheists, I can hardly see such things being approved because of this second reason, either.

"It's a law of general applicability! GET RELIGION GET RELIGION WITH IT GRRRRRR!"

[apedad]

So you're saying no secular law can apply to any religious institution or person?!?

"The officer stopped me because I was going over the speed limit but that prevented me from going to church so First Amendment violation!!!!!"

GTFO

[y81]

Wow, I don't think the Conspirators would be too happy to see their employers bankrupted. Happily, I assure you, the massed universities (not to mention hospitals) of America have more than enough clout to prevent this plan.

[Martinned]

I've never understood why a non-profit needs to be exempt from a tax on profit.

[y81]

What was Harvard's "profit" last year? What about New York Hospital? St. James' Church?

[John F. Carr]

A well run endowment should be making a lot of income, which is not taxed. In general Massachusetts universities do pay tax on commercial activities but Harvard could be a special case. It is protected by the state constitution.

(Fun fact that does not actually inform my response: I used to work with a former CFO of Harvard.)

[Michael P]

The left. Dred Scott was one of the first SDP cases, and except for the Lochner era, ADP has most consistently been used to invent left-favored rights from the judicial bench. As Oliver Wendell Holmes Jr wrote:

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.