Introduction
The Supreme Court has recently adopted a new rule of religious equality. Stated simply, whenever the government grants an exemption from a general law for a “secular” entity, activity, or motivation, it unconstitutionally discriminates against religion if it does not also offer an exemption to all “comparable” religious entities, activities, and motivations.
This doctrine has already had profound effects. Under the new rule, federal courts have held that local governments may not require religious objectors to comply with vaccine mandates if the mandates exempt those who are medically contraindicated;
that states may restrict gun-carrying in churches (as “sensitive places”) only if the restriction also deems practically every secular place “sensitive”;
and that Title VII is unconstitutional as applied to religious objectors because Title VII exempts businesses that employ fewer than fifteen employees.
More broadly, in part thanks to the valence of free exercise as an equality right that casts religious plaintiffs as a vulnerable group in need of protection, religious plaintiffs have prevailed—and will continue to prevail—in previously unsuccessful challenges to a range of antidiscrimination laws.
Moving forward, the Court’s new rule of religious equality is poised to reshape laws touching the workforce, healthcare, education, housing, and beyond.
The expansive nature of this new constitutional rule is ironic, considering it stems from the Court’s earlier efforts to limit free exercise rights.
For much of the twentieth century, the Court approached free exercise through a liberty paradigm: Any law that burdened the practice of religion even incidentally was held presumptively unconstitutional unless the government showed that it was narrowly tailored to achieve a compelling government interest.
But the 1990 case of Employment Division v. Smith, in which the Court upheld a federal drug law outlawing peyote, marked a doctrinal sea change.
The liberty paradigm was unworkable, the Court explained, because it required judges to conduct problematic metaphysical inquiries into the nature of religion and inappropriate assessments of the value of religious practices relative to other governmental interests.
Instead of treating the free exercise of religion as a liberty interest, the Court opted to reinterpret it as a right that protects only against the unequal treatment of religion.
Smith sowed the seeds of a new constitutional rule against religious discrimination, but it took three decades for this rule to reach maturity and take on precise meaning.
To be sure, Smith announced in no uncertain terms that free exercise does not require special religious exemptions from neutral and generally applicable laws and rather requires only that the government not wrongfully discriminate against religion.
But there is nothing that wrongful discrimination just is. Every law—indeed, every choice—discriminates; deciding which discriminations are wrongful and which are not (itself an act of discrimination) involves choices premised on (at times fraught) normative judgments.
After three decades and a transformed bench, the Supreme Court finally settled on the following definition: When a law bestows the benefit of an exception according to a classification that does not include all “comparable” religious entities, activities, and motivations, the government has impermissibly treated “religion” unequally.
According to this rule, no law may pursue its objectives in a way that even incidentally denies to religious entities, activities, or motives exemptions that are conferred upon the “secular”—even if regulating religion is entirely unrelated to the law’s purpose.
A diverse cadre of scholars has expressed support for some version of this principle of religious equality—that religion should not be treated worse than that which is secular—even while criticizing the results the Court has reached in its application.
This Essay takes a different view. It critiques the underlying principle rather than specific applications by arguing that such a principle is practically unworkable and conceptually incoherent.
The problem with any kind of religious equality principle of the sort set out by the Court’s recent case law is that it turns on treating the religious the same as its secular comparators. Yet religion is not comparable to anything—not in terms of its essence, or, possibly even more importantly, its value.
Perhaps in an attempt to overcome this problem, the new doctrine presents itself as avoiding assessing and comparing religion’s value.
But, as this Essay will show, it does so by ascribing to it practically infinite value. It assumes that religion is at least as valuable as—and, thus, must always be treated at least as well as—anything that is not religion.
Yet, as this Essay argues, there is no theoretical or normative basis for this assumption. And although its defenders and the entire Supreme Court characterize this new free exercise doctrine as a rule of equality
and justify it on that basis, it is nothing of the sort. For requiring that religion always be treated at least as well as everything else “comparable”—but not the reverse—establishes superiority of religion. Finally, accepting this premise would—and has begun to—jeopardize the viability of basic governance.
Before proceeding, a clarifying note is in order. This Essay does not object to rules of equality among religions—that is, that no religion or select religions may be singled out for adverse or beneficial treatment—or to a rule that the government may not intentionally discriminate against or in favor of religion as such (e.g., by making a benefit or detriment conditional on whether something or someone is religious or secular). These constitute intentional discrimination on the basis of religion and are distinguishable from governmental treatment of some interest (that happens to not be religious and is thus “secular”) better than “religion.”
It is strictly this latter conception of religious equality, which has now been captured by free exercise doctrine, that is the subject of this Essay.
The Essay develops its critique of the new rule of religious equality in three parts. Part I recounts the doctrine’s history, tracking how the normative and doctrinal foundations of free exercise have shifted over time, with equality ultimately supplanting liberty as free exercise’s organizing principle. This shift was initially contested by practically every free exercise scholar based on fears that an equality standard would prove insufficiently protective of religious freedom. But even as Smith’s critics continued to castigate the Court for abandoning its religious liberty doctrine, some simultaneously began to advance an interpretation of religious equality that could—and eventually would—be even more deferential to religion than religious liberty had been.
According to this interpretation, religious equality “require[s] that religion get something analogous to most-favored nation status.”
Just months after President Donald Trump’s third Supreme Court appointee, Justice Amy Coney Barrett, joined the Court in 2020, the Court formally adopted this most-favored nation (MFN) definition of religious equality.
Part II takes stock of the Court’s new doctrine. It illustrates the doctrine’s boundlessness by analyzing free exercise cases involving vaccine mandates during the COVID-19 pandemic, gun control regulations, medication restrictions, and laws prohibiting workplace discrimination.
This Part also situates religious equality among free exercise’s three potential interpretations: as a liberty right, as a right against intentional discrimination, and as a broader equality right. It shows how the new religious equality theory is fundamentally different from, and more sweeping than, disparate impact theory, although on its face it may appear to be just that.
This Part argues that a key component of religious equality’s novelty is the fact that it differs from other equality norms—which call for equal treatment within a protected category (e.g., among races)—by requiring parity between the protected class (religion) and all that is simply not in the class (i.e., all that is “not religion”).
Part III focuses on this key distinction and argues that religious equality rests upon unstable conceptual foundations. While most commentators troubled by the new doctrine have restricted their criticism to select applications of it, this Part contends that the doctrine is defective in principle. That is so because religious equality requires attributing a specified value to religion when religion does not have an objectively identifiable value. The doctrine is also defective because requiring the government to treat religion equally with that which is secular, but not vice versa, translates into religious superiority—the very opposite of equality.
It is this amalgam of conceptual problems that makes religious equality impossible both in practice and in theory.
Finally, Part IV gestures toward an alternative to the new rule of religious equality: a rule proscribing intentional discrimination premised on the principle of anti-religious persecution.