Religious Equality Archives - Columbia Law Review

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.[footnote]See Tandon v. Newsom, 141 S. Ct. 1294, 1296–97 (2021) (per curiam) (granting injunctive relief from a California lockdown order because it treated some secular activities more favorably than home-based Bible study).[/footnote] 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;[footnote]See infra section II.A.[/footnote] that states may restrict gun-carrying in churches (as “sensitive places”) only if the restriction also deems practically every secular place “sensitive”;[footnote]See Antonyuk v. Chiumento, 89 F.4th 271, 350 (2d Cir. 2023), vacated sub nom. Antonyuk v. James, 144 S. Ct. 2709 (2024); Spencer v. Nigrelli, 648 F. Supp. 3d 451, 463–64 (W.D.N.Y. 2022).[/footnote] and that Title VII is unconstitutional as applied to religious objectors because Title VII exempts businesses that employ fewer than fifteen employees.[footnote]See Bear Creek Bible Church v. Equal Emp. Opportunity Comm’n, 571 F. Supp. 3d 571, 613 (N.D. Tex. 2021) (“Title VII is not a generally applicable statute . . . .”), aff’d in part, rev’d in part, and vacated in part sub. nom. Braidwood Mgmt., Inc. v. Equal Emp. Opportunity Comm’n, 70 F.4th 914 (5th Cir. 2023).[/footnote] 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.[footnote]See infra notes 203–205 and accompanying text. In a 2022 speech, for example, Justice Samuel Alito had this to say: “There’s also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors.” See Josh Blackman, Justice Alito Speaks on Religious Liberty, Reason ( July 28, 2022), https://reason.com/volokh/2022/07/28/justice-alito-speaks-on-religious-liberty [https://perma.cc/EPX7-6PCZ]; see also Leah M. Litman, Disparate Discrimination, 121 Mich. L. Rev. 1, 11–12 (2022) (“[Courts] view remedial policies or antidiscrimination measures as evidence that white people, or conservative Christian groups, are now groups in need of judicial protection from laws that seek to include other groups in society and democracy.”).[/footnote] Moving forward, the Court’s new rule of religious equality is poised to reshape laws touching the workforce, healthcare, education, housing, and beyond.[footnote]For a few examples, see infra section II.B.[/footnote]

The expansive nature of this new constitutional rule is ironic, considering it stems from the Court’s earlier efforts to limit free exercise rights.[footnote]See infra section I.A.[/footnote] 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.[footnote]See infra notes 38–40 and accompanying text.[/footnote] 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.[footnote]See Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 872 (1990). This sea change was more nominal than real, considering the Court’s pre- Smith habit of deferring to the government. But it is referred to here as a “sea change” because at least as a formal matter—and optically—the Court did change the doctrine. See infra section I.A.[/footnote] 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.[footnote]See Smith , 494 U.S. at 886–88.[/footnote] 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.[footnote]See id. at 879–82.[/footnote]

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. [footnote]See infra Part I.[/footnote] 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.[footnote] Smith , 494 U.S. at 885 (“The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’” (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988))).[/footnote] 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.[footnote]See, e.g., Deborah Hellman, When Is Discrimination Wrong 4–9 (2008) (“The fact that we often need to distinguish among people forces us to ask when discrimination is morally permissible and when it is not.”).[/footnote]

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.[footnote]See, e.g ., Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam) (“[G]overnment 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.” (citing Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67–68 (2020) (per curiam))); Roman Cath. Diocese , 141 S. Ct. at 74 (Kavanaugh J., concurring) (“New York’s restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses.”).[/footnote] 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.[footnote]SeeDouglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith , 2020–2021 Cato Sup. Ct. Rev. 33, 34, 61 (concluding that “ Smith ’s protective rule” that “if a law is not neutral, or not generally applicable, any burden it imposes on religion must be necessary to serve a compelling government interest” can do much to shield free exercise of religion); Christopher C. Lund, Second-Best Free Exercise, 91 Fordham L. Rev. 843, 875 (2022) (“The Court’s recent attempts to retcon Smith into something that can protect religious exercise are noble; they are certainly better than nothing.”); Laura Portuondo, Effecting Free Exercise and Equal Protection, 72 Duke L.J. 1493, 1499 (2023) (“Recent free exercise decisions have . . . set forth a positive theory for considering effects [in the equal protection context]. Specifically, the Court has embraced the theory that a law should trigger heightened scrutiny where it ‘devalues’ protected interests.”); Mark Storslee, The COVID-19 Church-Closure Cases and the Free Exercise of Religion, 37 J.L. & Religion 72, 75 (2022) (“Where government creates carve-outs . . . one of those things must be religion . . . .”); Cass R. Sunstein, Our Anti- Korematsu , 2021 Am. J.L. & Equal. 221, 222 (2021) (applauding the Court in Roman Catholic Diocese for protecting free exercise during a national emergency); Nelson Tebbe, The Principle and Politics of Equal Value, 121 Colum. L. Rev. 2397, 2403–04 (2021) [hereinafter Tebbe, Equal Value] (endorsing the “new equality” as “a matter of ideal theory”). For a more qualified endorsement, see Andrew Koppelman, The Increasingly Dangerous Variants of the “Most-Favored-Nation” Theory of Religious Liberty, 108 Iowa L. Rev. 2237, 2240 (2023) (critiquing “the proliferation of new variants” of the doctrine while endorsing Professor Douglas Laycock’s and then-Judge Alito’s “earlier” version of the doctrine). Professors Alan Brownstein and Vikram Amar are mostly critical, but they too tacitly support what Professor Andrew Koppelman refers to as the “old” most-favored nation doctrine. See Alan E. Brownstein & Vikram David Amar, Locating Free-Exercise Most-Favored-Nation-Status (MFN) Reasoning in Constitutional Context, 54 Loy. U. Chi. L.J. 777, 789 (2023) (explaining how Fraternal Order ’s “focus on underinclusivity has some validity” and how the case serves as an “early and classic example” of the doctrine’s ability to distinguish between discriminatory and nondiscriminatory underinclusivity).[/footnote] 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.[footnote]It is worth emphasizing, as this Essay does below, that this Essay distinguishes between intentional discrimination and free-floating equality and takes issue specifically with the latter. See infra Part IV (suggesting an alternative—namely, an anti-intentional-discrimination rule premised on a principle of anti-religious-persecution). See infra note 228.[/footnote] 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.[footnote]See infra Part III (critiquing arguments for and assumptions underlying the principle of religious equality).[/footnote] Perhaps in an attempt to overcome this problem, the new doctrine presents itself as avoiding assessing and comparing religion’s value.[footnote]See infra note 362.[/footnote] 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.[footnote]See infra section II.A. Adding “comparable” does not change this assumption. See infra section III.D (showing how the doctrine requires this of “practically infinite value” assumption regardless of any comparability analysis).[/footnote] 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[footnote]See infra notes 218–220 and accompanying text.[/footnote] 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.”[footnote]See infra note 228.[/footnote] 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.[footnote]See Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 31 [hereinafter Laycock, Remnants] (“There is little reason to believe that Smith heralds a serious renunciation of balancing . . . .”).[/footnote] According to this interpretation, religious equality “require[s] that religion get something analogous to most-favored nation status.”[footnote]Id. at 49.[/footnote] 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.[footnote]See infra notes 129–130 and accompanying text.[/footnote]

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.[footnote]See infra Part II.[/footnote] 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.[footnote]Some scholars view the new doctrine as effectively a disparate impact test. See Litman, supra note 5, at 19, 22–23 (comparing the new doctrine to disparate impact analysis); Portuondo, supra note 16, at 1499 (“Whereas previous doctrine required an exclusive or nearly exclusive effect on protected interests, recent doctrine only requires a minor disparate effect.”).[/footnote] 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.[footnote]The Court’s treatment of religion as superior is not limited to its new religious equality doctrine—in fact, the latter is of a piece with the Court’s general preferential treatment of religion. To provide one example, the Court has held that religious institutions are insulated from employment discrimination suits brought by “ministers,” a term the Court interprets very broadly. See, e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2081 (2020) (holding that teachers of secular subjects at religious schools are qualified for the ministerial exception); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp. Opportunity Comm’n, 565 U.S. 171, 190–95 (2012) (applying the ministerial exception to a teacher providing religious instruction). At least four Justices seem poised to adopt an even broader “church autonomy” doctrine that would immunize religious institutions from all kinds of challenges. See, e.g., Yeshiva Univ. v. YU Pride All., 143 S. Ct. 1, 2 (2022) (Alito, J., dissenting) (“The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.”).[/footnote] It is this amalgam of conceptual problems that makes religious equality impossible both in practice and in theory.[footnote]Another clarification is in order: “Impossible” here refers specifically to courts determining on an objective basis that the government has incorrectly valued religion in comparison with some secular interest. See infra note 354.[/footnote]

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.