The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part I: The New Law of Free Exercise

Eugene has kindly invited me to contribute a series of posts, briefly describing my taxonomy of new variants of the most-favored-nation theory of religious liberty (forthcoming in the Iowa Law Review). I'm particularly pleased by the invitation, because I wrote the piece in conscious emulation of the kind of careful cataloguing of the capillaries of First Amendment doctrine that he does better than, well, anybody.

The First Amendment provides in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In Employment Division v. Smith (1990), the Court read this provision narrowly, holding that burdens on religion do not in themselves create any presumptive right to exemption from generally applicable laws. However, the Court later explained in Church of Lukumi Babalu Aye v. Hialeah (1993), "the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Lukumi held that, although religion is entitled to no special privileges, it is protected from discrimination.

Since then, the Court has construed that protection with increasing breadth. It now embraces what has been called the "most-favored-nation" theory (hereinafter MFN), which holds that the denial of a religious exemption is presumptively unconstitutional if the state "treats some comparable secular activities more favorably." That made sense in the context in which it was originally formulated, but the theory has mutated.

The Court has broadened its understanding of what counts as discrimination against religion, reaching beyond malice to include selective sympathy and indifference. Strict scrutiny applies even to a law that does not mention religion, so long as the law permits secular activities that the judges regard as comparable. The Court has been remarkably casual in its findings of underinclusiveness, repeatedly mischaracterizing the comparative harms of religious and secular claims. It has declared that the mere possibility of an exception, even if it has never been exercised, triggers strict scrutiny.

Even more protective variants have been proposed by Justices Kavanaugh, Alito, and Gorsuch. Kavanaugh argues that strict scrutiny should apply whenever some secular organizations are treated better than religious organizations. Gorsuch has repeatedly mischaracterized the purpose of a challenged law in order to conclude that prohibited religious conduct impaired that purpose no more than conduct that the law permitted. Alito has claimed that exceptions show that a law's purpose is not compelling—a conclusion that logically implies automatic accommodation, regardless of whatever harm the accommodation causes. Most remarkably and ominously, Gorsuch has been stubbornly resistant to evidence that religious accommodation for vaccine resistors would produce avoidable illness and death.

In the very first religious accommodation case it confronted, in 1878, the Court speculated that such exemptions might entail the permissibility of human sacrifice. That statement has often been denounced as overblown. Yet it is now clear that the Court was right to worry.

To understand what has happened to free exercise doctrine, we should begin with the benefit of hindsight, by considering where the law is now. Then we can explore how we got here.

Tandon v. Newsom, decided in April 2021, was a 5-4 decision enjoining California's Covid-19 order limiting more than three households from gathering in homes. The Court declared the order could not be applied to religious groups that want to hold services in a home. It explained that "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." This rule, announced without full briefing or argument, was then used to enjoin a rule that did not mention religion at all and whose authors almost certainly were not even thinking about religion.

The Tandon rule is an example of MFN: if any comparable activity is being treated better than religion, strict scrutiny applies. The Court held that the rule discriminated against religion, because "California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time."

Justice Elena Kagan, dissenting, pointed out that those activities "pose lesser risks" because they can enforce mask wearing, the interactions are briefer, and ventilation is better. That points to another innovation: persistent imprecision in deciding what counts as comparable activity.

It is hard to find any law that cannot be characterized as excusing comparable activity, especially if, as the Court says, the comparison is based on whether the state ever tolerates any setback to its pertinent interests. Few government purposes, not even the most critical ones, are pursued with monomaniacal intensity.

The Court has described the compelling interest test as "the most demanding test known to constitutional law." Once a court has decided that a law discriminates against religion, "strict scrutiny" amounts to a powerful presumption of unconstitutionality—as evidenced by the Court's extraordinary decision to issue an injunction against a law that had been upheld in the lower courts.

This is a novel development in free exercise law. Where did it come from?

This is the first of five posts. In my next post, I'll sketch the origins of the doctrine. Then I'll describe the different variants.