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Abstract

This Article examines the theoretical and doctrinal origins and consequences of a potentially game-changing approach to processing claims brought under the Free Exercise Clause of the First Amendment. Since 1990, and the decision in Employment Division v. Smith, the Court has read that Clause not to require accommodation of religious activity via exemptions from religion-neutral and generally applicable laws and regulations. What the Free Exercise Clause does prohibit, according to Smith, is government action targeting or discriminating against religion. But the Court’s decision a year ago in Tandon v. Newsom provides some powerful evidence about how this doctrine has been transformed in the eyes of the new Court majority. In Tandon, religious individuals challenged California’s COVID- inspired rule that limits all social gatherings—including religious gatherings—in homes to no more than three households. Because more than three households were allowed to come together indoors in stores, movie theaters, private suites at sporting events and concerts, and indoor restaurants, plaintiffs argued in-home religious gatherings were being treated in an inferior and discriminatory manner. Accordingly, California’s rule could survive only if the inferior treatment of in-home religious gatherings were narrowly tailored to further a compelling government interest. In validating this challenge, a five-person majority on the Court ruled 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.” The majority rejected the notion that since many (indeed most) secular activities were treated no more favorably than religion, that religious activity was not being targeted or discriminated against: “It is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue.” This new approach, if pursued by the Court in future cases, creates serious conceptual and practical difficulties and raises important questions as to how and why religious activity ought to be privileged over other, including other constitutionally protected and encouraged, activities.

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