The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty, Part V: The Abuse of Strict Scrutiny
I will conclude this series of posts by considering the variants of MFN that affect the way strict scrutiny is applied. MFN-6, ubiquitous in the Covid cases, makes strict scrutiny impossible to satisfy, by treating as equivalents regulated actions that are radically different in their effects on the pertinent state interests. MFN-7, proposed by Alito in Little Sisters of the Poor v. Pennsylvania and possibly embraced by the Court in Fulton v. Philadelphia, sweeps away the state interest more summarily, by declaring that however urgent it may be, it cannot possibly be compelling if the state has allowed exceptions to it.
Tandon says 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 judgment is distorted if the Court systematically misperceives the comparative burden on government interests, minimizing the damage to the pertinent interest when a religious exemption is sought. This of course distorts what Tandon contemplates, by deeming similar two activities that are not similar in their effect on the asserted government interest—as Justice Kagan put it, requiring "that the State equally treat apples and watermelons."
This move, which we will call MFN-6, has been ubiquitous in the Covid cases. In response to church capacity limits during Covid lockdowns, it became the position of a majority of the Court as soon as Barrett replaced Ginsburg. With respect to vaccines, where religious exemptions could create a public health disaster, it only commands three votes so far.
MFN-6 is a mutated version of MFN-2, and is often a consequence of its application. One may understand it as a complication of a preexisting pathology. MFN-2 misconstrues the coverage of a statute, in order to find exceptions where there are none. MFN-6 similarly misconstrues the statutory scheme, here failing to perceive the sought exemption's damage to the government interest. They have in common a failure to understand what government is doing and why it is doing it.
There are too many Covid cases to discuss them all here, though I go into considerably more detail in my forthcoming paper. Tandon v. Newsom is an example. It enjoined 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 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 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.
The most dangerous manifestation of MFN-6 is Justice Gorsuch's dissents in Does v. Mills and Dr. A. v. Hochul, two cases in which a divided Court declined to block state requirements that health care workers be vaccinated against the coronavirus notwithstanding their religious objections. (I already discussed these cases when considering MFN-2, which triggered strict scrutiny. MFN-6 affects how that scrutiny is applied.) Three justices thought that, because the state exempted those whose health would be endangered by them, it must also allow religious exemptions.
An apparently permanent feature of the human condition is the existence of deadly, contagious diseases—smallpox, polio, measles, rubella, tetanus, diphtheria, pertussis, rotavirus, and others. Except for smallpox, which has been eradicated, these diseases still kill many people outside the United States. One of the great innovations of modern science is the creation of vaccines that can prevent them.
Much of Gorsuch's argument involves the abuse of MFN-2, the variant he developed in Masterpiece Cakeshop: misconstruing the law's purposes in order to conjure up unfairness. Maine "allows those invoking medical reasons to avoid the vaccine mandate on the apparent premise that these individuals can take alternative measures (such as the use of protective gear and regular testing) to safeguard their patients and co-workers. But the State refuses to allow those invoking religious reasons to do the very same thing."
Why would a state allow medical but not religious exemptions? The medical part is easy. The state's real aim is, not maximizing vaccinations, but preventing disease and death. That would not be served by forcing vaccines on those who would be endangered by them. The state interest is compelling and its rule is narrowly tailored.
When Does was decided, it was clear that religious exemptions would prolong the pandemic. Only 57% of the adult population was fully vaccinated. Vaccine resistance had become a marker of Republican political identity. Because it is hard to contradict someone's assertion that her objection is sincere, religious objections were easily abused. A quarter of the workforce of the Los Angeles Police Department had claimed them, and 40 percent of the city's police were still not vaccinated.
Religious exemptions, but not medical exemptions, have been linked to significant outbreaks of disease. Those with medical exemptions do not cluster geographically. Religious claimants do. Vaccine resistance tends to concentrate in communities of like-minded people. A worker with a religious exemption is far more dangerous to patients than one with a medical exemption.
Gorsuch's logic has nothing specifically to do with Covid. It necessarily implies that there is already no compelling interest in refusing religious (while allowing medical) exemptions for any other vaccine: measles, rubella, tetanus, diphtheria, pertussis, and all the other nasty diseases that you got jabs for when you were a child. Most Americans don't remember (but may soon learn) the fear that your child will die of measles or diphtheria, or be paralyzed by polio.
An even more radical variant holds that a pattern of exceptions signifies that the interest at issue cannot be compelling. The religious claimant would inevitably win, whatever the consequences. Call this MFN-7.
Justice Alito most fully develops this variant—and offers it as a manifestation of judicial modesty!—in his concurrence in Little Sisters of the Poor v. Pennsylvania:
If we were required to exercise our own judgment on the question whether the Government has an obligation to provide free contraceptives to all women, we would have to take sides in the great national debate about whether the Government should provide free and comprehensive medical care for all. Entering that policy debate would be inconsistent with our proper role, and RFRA does not call on us to express a view on that issue. We can answer the compelling interest question simply by asking whether Congress has treated the provision of free contraceptives to all women as a compelling interest.
"'[A] law cannot be regarded as protecting an interest "of the highest order" . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.'" Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993). . . . here, there are exceptions aplenty. The ACA—which fails to ensure that millions of women have access to free contraceptives—unmistakably shows that Congress, at least to date, has not regarded this interest as compelling.
The inference is not simply that, if there are exceptions, there must be strict scrutiny, and the government must show a compelling interest. Rather—this what makes this variant more virulent than the others—the presence of exceptions is taken to show that the interest is not compelling at all. If that is right, then it does not matter how urgent the interest is or how necessary the law is to that interest. Women's health, their need to control their fertility, the likelihood that unintended pregnancies will produce low birth weight babies, even the likely increase in the number of abortions, all disappear from view. The Court will take that question to be foreclosed by exceptions. But a compelling interest is indispensable to a state's case for denying religious exemptions. The state then automatically loses. The exemption will automatically be granted. If government allows any "appreciable damage" to the interest that a law promotes, if it allows an exemption for any secular reason, then there must be a religious exemption.
Whether or not Alito's approach was adopted by the Court in Fulton, neither he nor any other member of the Court will pursue MFN-7 to the limits of its logic. They are not anarchists. Instead, I confidently predict that they will cheat, allowing the state to pursue interests that they, in their entirely unconstrained discretion, deem worthy.
The devices of MFN-1, MFN-2, MFN-3, MFN-4, and MFN-5, taken together, make it possible to find discrimination in any law at all. When combined with MFN-7 they could produce the most extreme variant of all, which we will call MFN-8: religion always wins. Religious motivation can excuse anyone from any law. No member of the Court has embraced this, and none ever will, because it really would entail anarchy. Instead, the judges will use MFN inconsistently, relying on their unstructured intuitions.
I've made some pretty bold claims here, summarily and without documentation. You can read the fully developed version here.
Thanks again to Eugene for giving me this forum.