Recent Free Exercise Cases

Remember that Smith held that so long as a law is neutral and generally applicable, it need only pass rational-basis review. Lukumi holds that if a law is not neutral and generally applicable, it must pass strict scrutiny: the law must be justified by a compelling governmental interest and it must be narrowly tailored to advance that interest. How would you distinguish between “neutrality” and “general applicability”? What sort of evidence does the Court look at for each?

In Masterpiece Cakeshop, the Court purports to apply Smith and Lukumi. Why does the Court hold that the government action here was not neutral? That it was not generally applicable?

In Fulton v. City of Philadelphia, the Court considered a Free Exercise challenge to a government policy that conditioned a religious agency’s ability to participate in the foster care system on its willingness to place foster children in homes with same-sex couples. One of the questions presented in this case was whether Smith should be revisited. While some of the Justices urged that Smith should be overruled, the majority stopped short of doing so. Should the Court have revisited Smith in Fulton v. City of Philadelphia, or are you persuaded by the majority’s reasoning?

The COVID-19 pandemic introduced a number of post-Smith free exercise challenges.  These cases considered the extent to which governments could impose limits on and even close houses of worship in light of public health concerns.  The two cases we read today connect to a number of the legal and historical issues we have covered in our course. For example, though they are relatively short opinions, we see citations to a number of cases we’ve examined in this course.

In the cases that we will read today, churches challenged executive orders relating to COVID-19, arguing that the orders treated houses of worship less favorably than comparable businesses (and thus violated the Free Exercise Clause). Keep in mind that the standard for emergency injunctive relief might be playing a role in the outcomes.

More broadly, consider whether the government should have more leeway during an unprecedented situation like the COVID-19 pandemic. Should courts defer to the political branches in these cases, or are times like these precisely when courts should be most vigilant in protecting constitutional rights? When, if ever, should houses of worship defy shutdown orders?

Reading Assignment:

  • Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018)

  • Fulton v. City of Philadelphia, 593 U.S. 522 (2021)

  • Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S (2020)

  • Tandon v. Newsom, 593 U.S (2021)

Optional Reading: