The Supreme Court has just created an aristocracy of the religious, who now can plausibly demand the right to defy almost any law. The Court has sometimes been willing to accommodate conscientious objectors, but its earlier decisions were nothing like what it has now done. By the Court’s logic, human sacrifice now presents a hard case, with a colorable argument for its protection.
Tandon v. Newsom was a 5-4 decision against California’s COVID-19 order limiting more than three households from gathering in homes. The Court declared that laws can’t be applied to religious objectors so long as the state “treats some comparable secular activities more favorably.” Some regard this as a de facto return to the old rule, in effect from 1963 to 1990, that religious conscientious objectors have a right to accommodation where that’s reasonably possible. What the Court has announced, however, is far more extravagant: a right to nullify even the most urgent laws.
The Court declares 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.” This calls into question laws that do not mention religion at all, and whose framers almost certainly were not even thinking about religion, such as the one in this case.
The regulation the Court enjoined simply said that more than three households could not gather in one home. The Court explained that this rule discriminated against religion, because “California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.” (Justice Elena Kagan, dissenting, pointed out that those activities “pose lower risks” because they can enforce mask-wearing, the interactions are briefer and ventilation is better.)
It is hard to find any law that cannot be characterized as excusing comparable activity, especially if, as the Court says, the comparison is based on whether the state ever tolerates any setback to its pertinent interests. Few government purposes, not even the most critical ones, are pursued with monomaniacal intensity. Once a court has decided that a law discriminates against religion, “strict scrutiny” amounts to a powerful presumption of unconstitutionality — as evidenced by the Court’s extraordinary decision to issue an injunction against a law that had been upheld in the lower courts.
Human sacrifice is the classic example of a religious liberty claim that uncontroversially ought to lose. But the Court’s logic would give even the Aztecs a plausible free exercise claim.
What is the state’s interest when it forbids human sacrifice? People don’t want to be killed, obviously. But every state allows killing in self-defense. Is that not a comparable secular activity?
The Court tells us that “whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.” Murder is prohibited to further the interest in protecting unwilling homicide victims. But the state protects only some of them. Certain secular reasons for killing are favored over all religious reasons. The law “treats some comparable secular activities more favorably than” religious homicide.
In the old, pre-1990 regime, courts would ask whether a law can allow some exceptions without undermining its purposes. That was not a blank check for the religious. The Court heard at least 14 exemption claims but granted only five (four of which involved denial of unemployment compensation benefits). In the lower courts, free exercise cases, by one count, had a success rate of 39.5 percent. After the Court declared in 1990 that only intentional discrimination against religion was prohibited, that dropped to 28.4 percent. Victories for religious claimants at trial were likely to be reversed on appeal.
One study reported that between 1980 and 1990, the federal appellate courts rejected an astounding 87 percent of free exercise exemption claims. But a balancing test that protects religion isn’t meaningless. Using such a test, the Court rejected a preposterous argument that Muslim prisoners could not be permitted to grow half-inch beards because they might hide weapons in them.
In weighing the state’s interest, it is certainly relevant if the state does not take that interest seriously in a nonreligious context. That can tell you something about the state’s real motives. For instance, in striking down a law that burdened only the rituals of an unpopular religious group, the Court declared: “Despite the city’s proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice.” But that is different from a mechanical rule declaring that a burden on religion is invalid whenever the state fails to pursue its goals relentlessly.
The new formulation creates a multitude of situations in which the weight of the state’s interest is ignored completely. So long as the state allows any secular exception, religious people must be exempted as well.
The Court will not pursue its new rule to the limits of its logic. That would be insane. Instead, I predict that it will cheat, allowing the state to pursue interests that it deems worthy.
Why, you might then ask, hasn’t the state a sufficiently compelling interest when it acts to control a pandemic that has killed half a million Americans? When the Court licenses indoor gatherings that will certainly spread COVID-19, has the Court not brought about the deaths of innocent people for the sake of other people’s religious beliefs? Come to think of it, it was a mistake to worry that someone might send in the Aztecs. To quote Stephen Sondheim: Don’t bother. They’re here.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict” (Oxford University Press, 2020). Follow him on Twitter @AndrewKoppelman.