The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part IV: Easy Paths to Strict Scrutiny

Let's move on to other variants. One looks at whether a law has any exceptions at all, and, if religious reasons are not among those exceptions, automatically applies strict scrutiny. It was proposed by Justice Kavanaugh in his dissent in Calvary Chapel Dayton Valley v. Sisolak, and possibly embraced by the Court in Roman Catholic Diocese of Brooklyn v. Cuomo. Call this MFN-3.

Yet another is to ask whether government fails to pursue an interest with uncompromising zeal, as the Court did in Tandon and its other Covid decisions. If so, and there is no religious exemption, strict scrutiny applies. Call this MFN-4.

Roberts's opinion for the Court in Fulton v. Philadelphia scrutinizes a law that has always been applied uniformly and declares that, because he discerns a formal power somewhere that could grant exemptions, the regulation lacks general applicability and so triggers strict scrutiny. Call this MFN-5.

The first five variants all expand the set of laws that are subject to strict scrutiny. None of them logically entails anything about what courts should do when applying that scrutiny. It is in principle possible for that scrutiny to be applied in a sensible way, giving appropriate weight to the state's interests. However, MFN-2 typically distorts the application of strict scrutiny after triggering it. When the court asks whether the state's interest is compelling, that inquiry is impaired, because the court is already committed to a misunderstanding of the pertinent interest.

MFN-3 holds that strict scrutiny is triggered whenever a law enumerates exceptions and does not include religion in those exceptions. The law need not mention religion. Unlike in MFN-1, in deciding whether to apply strict scrutiny, the court need not inquire into the law's purpose. The mere facial exclusion of religion from a set of exceptions suffices.

The clearest example of this move is Justice Kavanaugh's dissent in Calvary Chapel, which argues that strict scrutiny should be triggered whenever the law expressly advantages any class that excludes the religious, regardless of whether the exception is consistent with the state's underlying interest:

First, does the law create a favored or exempt class of organizations and, if so, do religious organizations fall outside of that class? That threshold question does not require judges to decide whether a church is more akin to a factory or more like a museum, for example. Rather, the only question at the start is whether a given law on its face favors certain organizations and, if so, whether religious organizations are part of that favored group.

The absence of a religious exemption is itself evidence of discrimination. Nelson Tebbe observes that this was different from earlier versions of MFN, because Kavanaugh "did not require the church to show that the exempted and regulated categories were comparable in order to shift the burden of justification to the government." Justice Gorsuch similarly cited, as evidence of discrimination, the fact that California's "spreadsheet summarizing its pandemic rules even assigns places of worship their own row."

The Court does not expressly adopt this approach in Roman Catholic Diocese of Brooklyn v. Cuomo, but it does ignore the comparability question, focusing solely on the denial of preferential treatment to churches. Gorsuch's concurrence explains what was offensive about New York's list of "essential businesses":

The only explanation for treating religious places differently seems to be a judgment that what happens there just isn't as "essential" as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all "essential" while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.

New York used "essential" as a term of art, a label for permitted activities. It reflected a judgment that the danger of Covid in specific contexts, combined with the importance of the activity, warranted a partial relaxation of public health measures. Both Kavanaugh and Gorsuch are offended by the withholding from religious activities of what they take to be an honorific, even if those activities are far more hazardous than activities that are included on the list.

Frederick Schauer has shown that "there is no logical distinction between exceptions and what they are exceptions to, their occurrence resulting from the often fortuitous circumstance that the language available to circumscribe a legal rule or principle is broader than the regulatory goals the rule or principle is designed to further." The question whether to exempt Quakers from military service, for example, arises only because the idea of military service does not, in the English language, automatically exclude religious pacifists. In the vaccination case, everything turns on the happenstance that there is no single word for "health-promoting vaccinations." If there were, then those with medical reasons for going unvaccinated would simply never have been within the facial coverage of the (exceptionless) law.

Recall that Tandon declared that "whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue." This formulation, MFN-4, ignores countervailing interests. A report by the Columbia Law School Law, Rights, and Religion Project notes the implication:

the only permitted factor in comparing a church and a grocery store is the government's interest in stopping the spread of COVID — not, for example, its interest in ensuring public access to food. Since both churches and grocery stores present a risk of COVID transmission, the Court treated them as "comparable" and found that the failure to regulate them equally was discrimination.

In other words, if the interest that justifies a restriction is not pursued singlemindedly, if the state trades off that interest for any other consideration (say, preventing starvation) and there is no religious exemption, strict scrutiny is triggered.

Unlike MFN-3, it does not matter if there is no express exception. The law in Tandon was an exceptionless restriction on in-home gatherings. A Kentucky Covid regulation applied equally to both religious and secular schools. A different regulation applied lesser restrictions to stores and restaurants. Gorsuch argued that the lower court "had an obligation to address the plaintiffs' argument that the two [orders], considered together, resulted in unconstitutional discrimination against religion. Whether discrimination is spread across two orders or embodied in one makes no difference; the Constitution cannot be evaded merely by multiplying the decrees."

The fundamental error of MFN-4 is presuming that laws normally serve a single purpose, so that any compromise of that purpose is anomalous and should arouse suspicion. That presumption defies reality. (MFN-4 is thus a subspecies of MFN-2.)

It is not just exceptions that undermine the purposes of rules. The rules themselves, by limiting their own application, undermine their own purposes pro tanto. Speed limits have the purpose of limiting traffic accidents, but that purpose would be best served by a speed limit of zero, that prohibited vehicles from moving at all. Or ambulances and fire trucks could be held to the same speed limits as everyone else. We care about many things other than reducing the number of accidents. To that extent we undermine the purpose of speed limits, but that doesn't make speed limits arbitrary, irrational, or discriminatory. Similarly with most rules. (The ones that are uniform sometimes serve weak interests: no parking on Broadway ever, for any reason.) Each purpose must compete with others. Our pattern of rules and exceptions is the product of an enormous variety of interlocking, competing, mutually interdependent, incommensurable considerations. It is not possible to isolate any one of them and presume that the state is determined to maximize them. Practical decisions don't work that way.

Tandon precommits the Court to reducing statutory purposes to a singular interest, to which of course almost any statute will then fail to be narrowly tailored. This move entails strict scrutiny across a broad range of cases.

Fulton v. Philadelphia is MFN-5. The Court cited Lukumi as authority for the proposition that a law "lacks general applicability if it prohibits reli­gious conduct while permitting secular conduct that under­mines the government's asserted interests in a similar way." But here the Court vastly expanded the scope of that rule to encompass cases in which no exceptions had actually been made. The formal possibility that an exception could be made in some future case triggered strict scrutiny.

Every city contract in Philadelphia prohibited the contractor from discriminating on the basis of sexual orientation. A Catholic social service agency's contract was terminated because, in certifying foster parents, it could not comply with that provision. The agency understood certification of prospective foster families to endorse their relationships, so it would not certify same-sex couples. Chief Justice Roberts, writing for the Court, seized on a boilerplate provision, which had never been used, saying the nondiscrimination provision applied "unless an ex­ception is granted by the Commissioner or the Commis­sioner's designee, in his/her sole discretion."

No entity had ever been treated better than the religious claimants. The mere option (which had never been exercised) of making exceptions to a regulation sufficed to make the regulation lack general applicability. The Court called this "a system of individual exemptions," even though it brutalizes the concept of a "system" to make the term denote an arrangement of elements none of which actually exist.

Strict scrutiny, the Court declares, applies to any law that has any kind of manual override for its mechanism. Quite a lot of what government does involves the exercise of discretion. In those cases, is the denial of religious accommodation always subject to strict scrutiny?