Why We Like Smith: We Want Neutral and General Laws to Prevent Harm


We all benefit from neutral and general laws, just as those adjectives suggest. The Supreme Court protected such laws in Employment Division v. Smith, its seminal free exercise case. The current Supreme Court, however, is undermining neutral and general laws in the name of a new theory of religious freedom adopted in its shadow docket COVID case, Tandon v. Newsom. This new theory is being sold as a “most favored nation” theory; the problem with making religious entities “most favored nations” in our country is that it requires the recognition that some are less favored than they are, which means we must abandon the common good for their specific agendas. We oppose this theory now, and do not want it to be adopted in cases that the Court hears in full in the future, including this term.

Neutral and General

If you work at a drug rehabilitation facility, you may be prohibited from using drugs. It goes with the work, and the rule should apply to everyone, even if you like to use drugs at church or at home. That’s the rule that the Supreme Court correctly upheld in its free exercise case, Smith.

Most people think an earlier Court case, Sherbert v. Verner, set a different standard, ruling that the government always has to meet a compelling interest whenever it burdens religion in any way. In Sherbert, the state denied unemployment compensation to a woman who would not work on her Saturday Sabbath. The Court sided with the employee. Pre-Sherbert, however, the Court had upheld the constitutionality of Sunday closing laws, a clear preference for one religion’s Sabbath. That pro-religion decision was actually wrong, because the law was not neutral and generally applicable. If the Court had struck down Sunday mandatory closings, Sherbert would never have been unemployed for her Saturday adherence. The law would have applied equally to Saturday and Sunday Sabbath worshippers, as it should. Neutral and general laws protect everyone, in the past and in the present.

Usually people are afraid to remember or mention the thousands of child abuse cases, in which religions’ clergy and members abused children. Then their superiors hid the abuse and protected the abusers. The churches argued that the First Amendment protected their actions from judicial review. They won many early cases, though as the reality of reckless endangerment of children has become transparent, the vast majority of states now reject a First Amendment privilege for harming children. There are a few remaining states where the “most favored nation” status of religious organizations holds sway even in child sex abuse cases, as we saw in the Missouri Supreme Court’s recent decision in John Doe 122 v. Marianist Province.

People are in denial about those cases because they prefer to think that religion is a source of good only, and that therefore it should be free to do whatever it wants. The child abuse cases are a stark reminder that everyone must obey neutral laws of general applicability without religious exception, or else other people can be seriously harmed.

The Supreme Court has not heard a religious child abuse case, so we do not know what the Justices would say about it. But they foolishly give religion freedom to do bad things in other situations. In the name of the First Amendment, the Court has created a seemingly limitless ministerial exception, which allows religious organizations—not only mosques, synagogues, and churches, but hospitals, medical facilities, elementary and secondary schools, and universities—to fire anyone they call a minister. Ministers’ cases for racial, gender, sexual orientation, age, national origin, disabilities, retaliation, and fair wage discrimination have all been dismissed as long as the employer can convince the court that the employee is a minister according to their lights…even if the employee never believed or knew that he or she was.


Congress fought Smith and gave us a federal Religious Freedom Restoration Act, which allegedly supports religious freedom. Twenty-one states also have RFRAs. What kind of religious freedom do they support? The RFRAs protect the right of employers to deny contraceptive insurance to their employees, and can be used to argue that gays and lesbians should not receive health insurance or other employee benefits. RFRAs unfairly privilege religion at the expense of civil rights. In fact, they foster cruelty to the vulnerable.

We are waiting to see if the Court will side with religious freedom over LGBTQ rights in Fulton v. Philadelphia, a case where the Court heard oral argument on November 4, 2020. Philadelphia is enforcing its antidiscrimination laws, asking all groups that participate in its foster parent program to consider LGBTQ couples as possible parents. Catholic Social Services, however, is insisting that it has a free exercise right to disobey the city’s antidiscrimination laws and refuse to consider LGBTQ parents. Even though every record has shown that many LGBTQs, like many heterosexuals, are great parents. Fulton’s side is suggesting that Smith be overruled in order to give the religious groups more protection to discriminate. They are demanding a right to receive government funding in a bubble where they don’t have to associate with LGBTQs as employees (see the ministerial exception above) or as beneficiaries. They seek not diversity, but separation.

Imagine if the Court recognizes a free exercise right to discriminate against LGBTQs in government programs. Such a ruling would undermine the neutral and general laws that the Court once wanted to protect. Such an exception would open the doors to other forms of discrimination favored by some groups, including religious discrimination, racial discrimination, and gender discrimination. We want the government to protect neutral and general antidiscrimination laws for everyone and not allow groups to discriminate however they want. We want the Court to reintroduce the notion of a shared, common good, and stop now before they enter dangerous waters.

In its shadow docket COVID cases, after the replacement of Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett, the Court has turned away from protecting neutral and general public health laws meant to deal with the pandemic emergency. Dissenting Justice Kagan wrote in the most recent case, Tandon v. Newsom,

California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike.

Kagan, with Justices Breyer and Sotomayor, reminds us of the neutral and general health laws that protect everyone, without religious exemption. Those Justices understand that a home gathering is not at all like a hardware store or a hair salon.

There was a ray of light here: Chief Justice Roberts, without comment, refused to join the five Justices in the majority.

Unfortunately, five members of the Court disagreed with Roberts and the dissenters. In an unsigned, per curiam opinion, those five—Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—reject Smith and adopt what many call a “most-favored nation” theory of the First Amendment. “Under this approach, otherwise neutral laws that might incidentally burden religious exercise (like zoning laws or public health regulations, for instance) are constitutionally suspect if they create any exceptions for what judges deem to be ‘comparable’ secular activities.” So if anyone else has a different rule, the religion gets hyper-strict scrutiny, making it easy for religions to follow their own rules instead of obey the law, and separating our country into two camps: the most favored and everyone else.

Where Are We Headed?

Professors who favor the most-favored nation theory supported the anti-LGBTQ challengers to Philadelphia’s law in Fulton v. Philadelphia and urged an overruling of Smith. If the Court joins them in Fulton as in Tandon, we will have an exception-full law. A law that permits religions to:

  • Sexually abuse children;
  • Hide the sexual and other abuse;
  • Discriminate on the basis of race, gender, sexual orientation, age, national origin, retaliation, disability, and fair wages against most of their employees;
  • Deny reproductive health care;
  • Deny health insurance and treatment to LGBTQs;
  • Disobey the public health laws;
  • Threaten public health;
  • Let children die of treatable illness;
  • Deny mental health treatment to those in need; and
  • Allow healthcare professionals to “conscientiously” refuse medical treatment even when it is necessary to the patient’s life.

And who knows what else would happen in the law-free world we fear the Court may enter?

Justice Kagan wrote, “As the per curiam’s reliance on separate opinions and unreasoned orders signals, the law does not require that the State equally treat apples and watermelons.”

We hope the Court will continue to back neutral and general laws and to recognize that apples are not watermelons.

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