By Jim Oleske
on April 15, 2021
at 10:13 am
The court’s decision in the Tandon v Newsom case blocked COVID-19 restrictions in California on home prayer meetings (Shinphoto via Shutterstock).
On February 24, 2020, the Fulton v City of Philadelphia Supreme Court issued an instrument in which the petitioners and several amici asked the court to either (1) override the Employment Division v Smith, a 1990 decision, That Determines The Free Exercise Clause provides no right to religious exemptions from general law or (2) severely limits Smith’s implications by being interpreted as guaranteeing “Most Favored Nation” status for religious liberation claims . According to the latter theory, even if a law largely covered both secular and religious conduct, it would not be considered “neutral and generally applicable” for Smith purposes if it contained exceptions that were “comparable” to the religious exception sought be valid. Instead, the theory goes, the existence of such “preferred” activity exceptions triggers a presumed right to a religious exception that the government can only refuse if rigorously scrutinized.
Either overriding Smith or adopting most-favored-nation treatment in Fulton would have been big news. Congress had previously attempted to reverse Smith’s effects and guarantee liberation rights with the Religious Freedom Restoration Act of 1993. RFRA, as originally enacted, applied to any federal, state, or local law that “significantly burdens” the practice of religion. It remains in effect at the federal level, but the Boerne v Flores City Court ruled that RFRA was not an appropriate law to enforce the freedom of practice clause against state or local governments, as RFRA against Smith had religious exemptions from laws “without reference.” on whether [those laws] aimed to suppress or punish free movement. “In order for the court to override Smith now, it would have to overcome the inflexible decision-making effect of Smith and Boerne. Alternatively, the adoption of the most-favored nation theory in Fulton would also have profound effects and would call Boerne into question. As a leading proponent of the theory, Professor Douglas Laycock observed: “[i]A law with only a few secular exceptions is not neutral and generally applicable, then there are not many laws. “If this is correct, and the denial of religious exemptions from most laws implies the free exercise clause under the most favored nation approach, then the right of exemption in the original RFRA suddenly appears“ more congruent and proportional ”to the constitutional guarantees than Boerne concluded.
In normal times, the Fulton case would likely have dominated the religious exception discourse during the 2020-21 term. But these are not normal times. Within weeks of being granted the certificate in Fulton, state officials across the country began issuing orders restricting group gatherings to reduce the spread of COVID-19. These gathering restrictions apply generally to civic, cultural, and social gatherings (e.g., lectures, concerts, book clubs, political house parties, spectator sports, movies, weddings, family reunions) and to faith-based gatherings (e.g., weekly services) at places of worship , in home Bible study groups, at religious weddings, and other ceremonies). Some churches began to question these limits as a violation of their rights to exercise freedom, and the most widespread argument relied on the most favored nation theory of religious exceptions. In particular, the churches argued that they have the right to be exempt from congregation size restrictions, since those restrictions are not in place to limit the number of people in what they call “beneficiary” businesses (e.g., retail stores) production facilities could be present).
Several of these challenges to the COVID limit values reached the court in the form of urgency motions for injunctive relief in the “shadow file”. After the court denied the first two motions, received last spring and summer, it approved five similar motions between November and February after Judge Amy Coney Barrett joined the court. In a dissenting opinion last summer that turned into a consensual opinion this fall, Justice Brett Kavanaugh explicitly endorsed the most-favored-nation theory of religious exceptions. And last Friday evening in Tandon against Newsom, a majority in the court officially accepted the theory for the first time in a brief per curiam statement, in which five judges took part.
The Tandon Court ruled that “government regulations are not neutral and generally applicable and therefore trigger strict control under the free exercise clause when they treat a comparable secular activity more favorably than religious practice. It is not an answer that a state treats some comparable secular business or other activity as bad or even less favorable than the religious practice in question. Using that argument, the court ruled that although California’s COVID rules limited both secular and religious home gatherings to members of three households or less, religious home gatherings must be exempted from the restriction because different companies do not have the same Regulations are subject to restriction.
Judge Elena Kagan disagreed, along with Judges Stephen Breyer and Sonia Sotomayor, but she did not explicitly weigh the most favored beneficiary theory. Although she wrote that a state “must treat religious behavior as the state treats comparable secular behavior”, she did not make it clear whether she meant “as the state treats similar secular behavior in general” or “as the state treats” any comparable worldly behavior. “Only the latter would be a confirmation of the most favored nation theory. In any event, Kagan found the majority-cited companies to be inconsistent with home gatherings, underscoring the lower court findings that corporate interactions are generally “less risky” than gatherings in due to the ability to enforce the wearing of masks Private households, the shorter nature of the interactions and better ventilation. Chief Justice John Roberts disagreed without explanation.
Before emerging as the focus of the COVID litigation, most-favored nation treatment of religious exceptions was the subject of three decades of debate among commentators and in the lower courts. Proponents argued that the theory had roots in Smith himself (particularly in her explanation of the earlier Sherbert v. Verner case) and was backed up by the court’s later position at Lukumi Babalu Aye Church against the city of Hialeah, where the protection against religious aiming has been described as the constitutional “minimum”. Meanwhile, skeptics saw the theory as an attempt to end Smith’s teaching and affirmed in Boerne that the free practice clause was only protected from laws that “aim” to incriminate religion.
Wherever one stands in this debate, two things are certain: First, by adopting the most-favored nation theory, the Tandon Court has solved one of the main problems put forward for a possible solution at Fulton. Second, several questions now need to be answered when the courts operationalize the theory. Professor Laycock, whose fellowship was cited by both Kavanaugh and Judge Neil Gorsuch, warned in an amicus letter filed in Fulton that there would be many questions: “What secular exceptions are analog enough to count? What is the exam standard for this question? What if the secular exceptions result from an uncodified enforcement policy? And on and on. “
As early as February 2020 it was not a matter of course that these questions would have to be answered. Instead, one could have envisioned the court either (1) sticking to Smith’s conventional understanding by interpreting the freedom of exercise clause only to protect against willful religious discrimination, or (2) overriding and enforcing Smith Recognizes the right to religious exceptions that does not depend on the existence of other sufficiently “comparable” exceptions. But with the most favored nation approach that is now the law of the country as a result of Tandon, the significant challenges in implementing the new regime for free exercise of the judiciary must be overcome.