In our last column, we focused on the “Most Favored Nation” (“MFN”) approach to the Free Exercise Clause of the First Amendment from the vantage point of protecting religious exercise as a liberty right. We pointed out, among other things, that the approach the Court seems to be moving towards—under which any secular exemption which renders a law underinclusive as to its purpose requires the state to grant religious exemptions to any free exercise claimant seeking an exemption that would be similarly underinclusive—is extraordinarily broad. It is a very rare statutory or common law framework that does include at least some secular exemptions. Indeed, some exemptions might be said to be baked into the definition of what is regulated. For example, assume a state law requires that all persons who are present in the state on Election Day must vote in person and not by mail-in absentee ballot. Here, the state could be said to be exempting people who have chosen to travel and be outside the state on Election Day from the in-person voting requirement. And because those persons are permitted to vote absentee, so should all persons who claim it would facilitate their religious activities on Election Day to be able to vote by mail.
Further, it would seem that exemptions under the Court’s emerging MFN framework would be mandated in more circumstances than case law required prior to 1990’s seminal ruling in Oregon Employment Division v. Smith. Before Smith, constitutionally required free exercise exemptions from neutral laws of general applicability were available only if the challenged law substantially burdened religious exercise. But under the MFN analysis, all that is required to justify strict scrutiny review of the denial of a religious exemption is the existence of an underinclusive secular-exemption analogue. The magnitude of the burden on the religious claimant is largely irrelevant as long as a secular exemption exists and the religious exemption does not. This would seem to give courts tremendous power and leeway to essentially rewrite legislative schemes, something conservative jurists have long been wary of when it comes to claims of constitutional liberty infringements.
But the problems with an MFN-style approach are not limited to its uneasy fit within the liberty/autonomy-protection tradition. In the space below, we analyze how an MFN approach does not easily square with various constitutional equality perspectives either.
For one thing, an MFN approach seems to treat religious activity as preferred over all other activities, including the exercise of other fundamental rights. It is important to understand that virtually all fundamental rights (other than free exercise rights) are ordinarily considered to be secular in nature. This is true for the right to vote, the right to marry, the right to travel, and the right to obtain reproductive medical services. What MFN status for religious activity means is that if a state grants an exemption for the exercise of any other right such that the law at issue is deemed underinclusive, the state would be constitutionally required to grant an exemption for comparable free exercise activities. Yet if a discretionary exemption is granted for religious exercise, there is no symmetrical obligation to provide an equivalent exemption for the exercise of any other fundamental right, much less all other fundamental rights. Analytically (as the “M” in MFN would suggest) this places free exercise rights at the top of a hierarchy of protected rights; free exercise can never be treated worse, but can be treated better, than other fundamentally protected activities. So, for example, if a government allows reproductive rights clinics to remain open (albeit with restrictions) during a pandemic, it must also allow churches to be open, but not vice versa. Or if a state allows parents to travel to visit children in another state during a pandemic, it must also allow people to travel to out-of-state religious destinations, but (again) not vice versa. Importantly, this anti-democratic privileging of religion does not seem to be recognized, much less explained and defended, by the emerging Court majority seemingly attracted to MFN-style reasoning.
Moving beyond the privileging of free exercise rights over other rights, as a general matter preferential treatment, especially when conferred on a majority (and we should note that a strong majority of Americans associate themselves with a religion and would presumably value the opportunity to engage in religious activity consistent with their beliefs) is ordinarily the antithesis of equality in American jurisprudence. Certainly, this preferential position assigned to religious activity does not cohere with classic approaches to equality under the constitutional provision most explicitly focused on equal treatment—the Equal Protection Clause of the Fourteenth Amendment (and its counterpart component in the Fifth Amendment’s Due Process Clause). In order to see the uncomfortable fit between MFN status and equal protection theory, it is important to appreciate that in the real world, the great majority of requests for secular exemptions from any particular regulatory regime are denied, either by the legislature or the executive branch. What that means is that a majority of the citizenry (through their representatives) have decided that the costs of a regulatory regime with limited exemptions are worth paying—presumably because of the importance of the state’s legitimate regulatory objectives. But when the burdens of a regulatory regime are wide and disperse, and do not fall specifically on some politically disempowered minority, that is precisely the situation when classic constitutional equality theory counsels judicial restraint and deference to the political process. In the famous footnote 4 of United States v. Carolene Products Co., for example, the Court indicated that generally speaking the political process is to be trusted to correct its own mistakes, but that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” With regard to laws that provide for very limited secular exemptions but not as many religious exemptions as some persons would demand, it is hard to see where there is evidence of “prejudice against discrete and insular minorities” since the majority of claims for (secular) exemption have not been granted, and since religious believers themselves comprise a majority.
A corollary of this analysis is Justice Jackson’s oft-cited concurring opinion in Railway Express Agency v. New York in which he made clear that the most effective way to prevent “arbitrary and unreasonable” government action is to require that the burdens imposed on minorities must be imposed on the majority as well. Or, to put it another way, we can trust the majority more when it enacts a law that imposes burdens on itself as opposed to a law that directs its burdens upon minoritarian interests. (This principle is also reflected in other constitutional provisions—for example, when a state’s citizens are singled out for unfavorable federal tax treatment, the Court is much more skeptical than when a state’s citizens are given more favorable treatment by the federal government, since citizens of the other 49 states bear the costs of such favoritism and can take care of themselves in the national political process to avoid it.) Thus, when we have a general law as to which most secular exemptions are denied, but a very few may be granted, the Railway Express Agency analysis—like that of Carolene Products—suggests that the fact that the burden of the law falls on the majority (although some limited facet of the majority may escape its requirements) means we can generally trust the enactment of the law and accept the burdens that it imposes on most of us. The case would be different if so many secular exemptions were granted that one could question whether the majority was in fact burdened by the law. Baselines matter, and should be analyzed with care. But such a baseline showing of majoritarian rent-seeking is not required for MFN protections to apply under the Court’s recent analysis. Why would the granting of an occasional secular exemption undermine the conclusion that the general law at issue substantially burdens the majority, and accordingly is more deserving of trust than a law which allows the majority to escape the consequences of a law’s enactment?
Of course, a majority of the Court in the past few decades does not seem to energetically embrace the Carolene Products approach to equality. Instead, under current equal protection doctrine the Court has tended to identify certain classifications (or sorting tools)—most emphatically race—that are invariably (or almost invariably) impermissible for government to use. Let’s call this a “colorblind” approach (which could also be extended to require gender-blindness in most cases as well.) But even if one embraces a “colorblind” or “genderblind” approach to equal protection, that approach in no way supports an MFN-style analysis. Why? Because a “colorblind” approach (generally) forbids treating people of some races differently from others. It does not prohibit government from treating race differently (or even less favorably) from other kinds of governmental decision-making factors. For example, a law that provides an admissions plus for Black applicants to public universities may be viewed skeptically under a colorblind approach (although it would not necessarily be problematic for those who embrace Carolene Products footnote 4, since the beneficiaries are a minority and the burdens are borne by a majority not lacking in political power), but a law that provides an admissions plus for poor persons but not for Blacks (as a distinct group) would not trigger any meaningful review. There is no constitutional requirement that racial considerations be taken into account simply because other considerations are the basis of government decisions Indeed, the Court recently rejected this notion in Schuette v. Coalition to Defend Affirmative Action, where the plaintiffs unsuccessfully argued that removal of race-based affirmative action by the voters of Michigan is constitutionally problematic when other kinds of affirmative action remain in place. As applied to religion, that would mean that a law that exempted some religions but not others would be problematic (as it should be), just as a law that treats people of some races differently from others is subject to searching review. But a law that treats religion differently from some other (secular) activities does not violate the neutrality-equality command.
Thus, whether viewed from a classic Footnote 4/political process angle, or a more modern classification-blind perspective, MFN reasoning does not easily jibe with equality theory.
Indeed, there is a significant way in which MFN would seem to violate longstanding and agreed-upon equality values in the religious realm by effectively conferring differential protection on different religious groups. Inter-religious equality is a norm that continues to command broad support and respect, and it can be frustrated, rather than furthered, by MFN reasoning.
In particular, requiring religion to be treated at least as well as any non-religious activity—as MFN reasoning does—makes religious protection turn on what is often a fortuitous secular analogue, which can exacerbate inequality among religious groups. Take, for example, the Fraternal Order of Police case we discussed in our previous column. The Third Circuit Court of Appeals held that Muslim officers whose religion prohibits them from shaving were entitled to an exemption from the Police Department’s facial-hair grooming rule requiring daily shaving (to promote uniform appearance) because an exemption was provided to police officers who would suffer medical problems if they shaved on a regular basis. But consider the consequence of this holding for police officers of other faiths. A Native American officer whose religion prohibited cutting his hair in conformity with a Police Department’s uniform hair-length grooming standard (as distinguished from its facial-hair policy) requiring short hair cuts could not get a religious exemption if there was no medical exemption applicable to the short-hair requirement. In this example, Muslim police officers get mandated religious exemptions from grooming standards, but adherents of Native American faiths do not—even though their claims to religious liberty seem so similar and worthy of protection—simply because of the fortuity that shaving policies implicate medical skin conditions but short-hair policies might not.
A related potential problem with an MFN approach to free exercise is that it would end up, again because of fortuitous differences in particular regulatory policies, conferring more religious protection for people in some locations than others. Adjacent cities, for example, might adopt similar restrictions on religious exercise, but include different secular exemptions in their regulatory schemes. Under an MFN approach, one city’s restrictions on religious exercise will be subject to strict scrutiny because of the city’s underinclusive secular exemptions. If the other city does not grant such secular exemptions, however, its restrictions (assuming Smith is still good law) would be upheld under rational basis review. The interference with free exercise activity would be the same in both cities. But that regulatory burden would be struck down in one city and upheld in the neighboring municipality. To go back to our absentee voting example above, one state’s accommodation of the right to travel would confer more religious liberty than would be enjoyed by persons in a neighboring state where no provision for absentee voting at all were made.
To be sure, people in America enjoy different rights under their state constitutions depending on where they live. And even federal rights are sometimes (temporarily, at least) construed differently among the federal appellate courts . But it is very odd that a person’s free exercise rights would be different in one place compared to another—without any judicial disagreement among circuits as to the meaning of the right—simply because some secular exemptions exist in the first location but not the other. Certainly, if there were a plausible equality-based reason to think that religion was being disrespected or demeaned in one jurisdiction but not another, that could explain different jurisdictional outcomes. (In that regard, when two jurisdictions pass laws with the same disparate racial impacts but one jurisdiction spitefully intended those impacts whereas another simply tolerated them unhappily, constitutional doctrine might rightfully differentiate between those two jurisdictions on the ground that communication of a legislature’s ill motive itself creates unequal psychological effects for minorities in one place compared to the other.) But as we explained above, not getting preferred treatment is not the same as being disrespected, and MFN does not require a showing of invidious or discriminatory treatment for strict scrutiny to apply. Thus, the geographical inequality virtually guaranteed by an MFN-style approach is much harder to justify. It will be particularly difficult to explain, much less justify, to the religious individuals whose claims for exemptions are denied in their jurisdiction while religious individuals in an adjacent jurisdiction receive constitutionally mandated exemptions from a virtually identical law.