Date01 April 2022
AuthorBuckner, Luray


In the past year, a certain momentum has gathered behind the Court's rulings on free exercise issues with cases like Fulton v. City of Philadelphia and Roman Catholic Diocese of Brooklyn v. Cuomo manifesting a vibrant free exercise jurisprudence. The Court has come a long way since Employment Division v. Smith broke ground with its pronouncement that rational basis review was the default for free exercise cases. Justice Kavanaugh's intriguing addition to this discussion is his promotion of Douglas Laycock's most favored nation theory of religious exemptions. While this theory first appeared in a sole dissent,' many scholars argue that it was explicitly adopted by a majority of the Court in Tandon v. Newsomr In fact, some scholars predicted a devastating change in First Amendment jurisprudence when Tandon was first decided. (3) Instead, the majority Court opinion did not reference Tandon in the next high-profile free exercise case, Fulton, and lower courts have not shown any tendency to apply the test in a way that expands religious freedom. At this point, one might ask whether the most favored nation theory was really an innovation in the law at all and whether it actually changed the Smith analysis. Is there any merit to using the most favored nation framework in analyzing requests for religious accommodations and would such a framework tend to be more solicitous of religious rights?

In this Note, I argue that Justice Kavanaugh's most favored nation test for religious exemptions actually differs from the one employed by the majority of the Court in Tandon. The majority's formulation of the test is vague and explicitly requires courts to engage in a fact-intensive comparability analysis. Practically, lower courts applying Tandon to religious exemption questions have exploited this comparability step to rule against religious claimants generally, but more specifically to deny them strict scrutiny. Because the Tandon test was formulated to apply to all free exercise claims, the test is necessarily framed in more general terms and also imposes on religious claimants an additional burden before they can benefit from strict scrutiny analysis. Justice Kavanaugh's analysis, however, is less ambitious in scope, applying only to a subset of free exercise claims, and is formulated to provide more rigorous protection of First Amendment rights. As a result, it would provide a more consistent tool for deciding religious freedom cases and would be more solicitous of religious rights. In Part I, I lay out the legal and academic background necessary to understanding the most favored nation theory of exemptions that Justice Kavanaugh championed and that the Court applied in the pandemic cases. Then, in Part II, I turn to the majority's approach to the most favored nation theory in Tandon and contrast it with Justice Kavanaugh's description of the theory, illustrating the similarities as well as the differences in how the two approaches emphasize the necessity of comparability between the religious and secular activities in question. Finally, in Part III, I will examine four lower court decisions that have applied the Tandon majority's test to illustrate the shortcomings in the test as currently applied and to demonstrate how these cases would have led to different, religious-friendly, results under Justice Kavanaugh's test.


    1. A Legal History of First Amendment Jurisprudence

      Immediately before the ground-breaking Smith decision of the 1990s, First Amendment free exercise jurisprudence was largely carried out under the strict scrutiny standard established in Sherbert v. Verner in 1963. (4) Before Sherbert, going back to the days of the Founding, scholars debated whether the judiciary viewed exemptions as a legitimate answer to First Amendment claims. Philip Hamburger, for example, concludes from the historical evidence that courts could deny religious accommodation to people "not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions." (5) Practically speaking, that means that religious accommodations were not available when free exercise conflicted with the current state of law and that Sherbert?, strict scrutiny regime is an aberration from the original interpretation of the First Amendment. On die other hand, scholars like Stephanie Barclay explain the paucity of religious accommodations in the nineteenth century by the lack of broadly-worded statutes curtailing religious exercise that were passed and then reviewed by judges.''' Barclay looks to die judicial attitude toward exemptions generally and finds evidence that judges in the early days of the country used their equity power to create "exemptions from generally applicable laws," including religious ones. (7) For Barclay, this is evidence that religious accommodations from generally applicable laws were a legitimate way to balance the First Amendment protections against the need for universal laws. Although scholars may not agree on exactly what status exemptions from neutral laws had in the beginning of the country, (8) as a matter of historical fact, religious minorities benefited from these types of exemptions in the eighteenth century. For example, military conscription and the oath for office were both general laws that applied to the public at large, but both requirements were modified or waived to accommodate religious dissenters who objected to them. (9) Scholars have debated whether or not these accommodations were constitutionally required, but at the very least they reveal a permissive attitude toward religious accommodations.

      Until the First Amendment was incorporated against the states, the Supreme Court did not have a chance to rule upon free exercise cases. Not until 1879 did the Supreme Court decide its first major free exercise case when it allowed the federal government to outlaw polygamy in Reynolds v. United Stales over the objections of the Mormon church. (10) This first case may seem to support the position that religious accommodations are an aberration in free exercise jurisprudence and that religious claimants are not typically exempt from general laws. In 1963, however, the Supreme Court established a predictable formula for First Amendment cases, formalizing its free exercise jurisprudence into what was known as the strict scrutiny analysis. Sherbert v. Verner and Thomas v. Review Board of the Indiana Employment Security Division provide the hallmarks of prc-Smith religious freedom litigation. In Sherbert, the Court wrote that unless the religious action posed a "substantial threat to public safety, peace or order," the governmental regulation would be subject to strict scrutiny, also known as the substantial burden analysis." If the claimant could show that the regulation imposed a burden upon the free exercise of his religion, the government was then required to justify the burden by showing it had a compelling interest in applying the regulation to the religious claimant. (12) In Thomas, the Court looked for a sincere religious belief--one that "need not be acceptable, logical, consistent, or comprehensible to others"--in finding a substantial burden. (13) Judges were to accept the belief as sincere even if the religious claimant had difficulty articulating his belief, his belief conflicted with the majority of others in his religion, or he himself struggled to accept the belief. (14) Even a law that is facially neutral becomes unconstitutional as applied "if it unduly burdens the free exercise of religion." (15) Once the religious litigant has cleared this low hurdle of showing a burden, the government not only must justify the regulation, but also prove that there are no alternative ways to achieve its goal without "infringing [on] First Amendment rights.""' Such a regime was generally favorable toward religious exemptions and, like in the early days of the country, indicated a permissive attitude toward religious accommodations. (17)

      A dramatic change came with Employment Division, Department of Human Resources of Oregon v. Smith. (18) In 1990, Justice Scalia wrote for the majority of the Court in Smith, upsetting the existing First Amendment framework and ushering in a new legal framework for analyzing free exercise claims. According to the Court, the First Amendment does not require governments to give religious accommodations and rejected the position that "an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." (19) The government no longer needed a compelling reason to burden an individual's free exercise but needed only to pass the much lower standard of review commonly referred to as rational basis review. The Court left only a few paths open to litigants to reach the friendlier regime of strict scrutiny review. (20) First, if the law was demonstrably not neutral or generally applicable, then the Sherbert-era, strict scrutiny test would apply.' (21) Second and third, if there was a system of individualized exemptions (22) or the case involved hybrid-rights (a free exercise right coupled with parental rights or free speech rights, for example), strict scrutiny was available. (23) Church of the Lukumi Babalu Aye, Inc. v. Hialeah is a good example of the first pathway to strict scrutiny. (24) In that case the government showed overt hostility to religion and the Court examined the regulations more skeptically under strict scrutiny. (25) Regarding the second category, the implicit problem with a system of individualized exemptions is that the government is given discretion to make case-by-case decisions on who and what to accommodate. By its very terms, such a law is not neutral and generally applicable. (26) Finally, the hybrid rights...

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