Religious and Secular Comparators

Category: Print Issues

William T. Sharon

Volume 30

, Issue 3

30 GEO. MASON L. REV. 765 (2023)

Introduction

At the height of the COVID‑19 pandemic, the United States Supreme Court resolved a decades-long debate about the Free Exercise Clause of the First Amendment.¹ Not in a lengthy opinion evaluating the complex doctrine, but in a four-page per curiam decision.² In just a few lines, the Court shifted the free-exercise framework, holding that religious observers are entitled to exemptions from laws that exempt “comparable” secular conduct.³

What makes religious and secular conduct comparable has since become the subject of considerable discussion.⁴ New cases posing hard questions seem to arise daily. Is a movie theater comparable to a church?⁵ Is declining a vaccine for medical reasons comparable to declining for religious reasons?⁶ Is a school affinity group that limits membership based on gender identity comparable to a religious student organization that limits membership based on sexual orientation?⁷

Despite framing the key question in terms of religious and secular comparators, the Court offered little guidance on how to compare religious and secular acts and entities.⁸ It thus gave district judges virtually free reign, and the results in recent years have been disturbingly partisan.⁹ Even so, commentators have paid little attention to the questions of who must prove or disprove comparability, and how.¹⁰ This Article focuses on those questions.

The Free Exercise Clause says that “Congress shall make no law . . . prohibiting the free exercise” of religion.¹¹ Courts have interpreted this to mean that some religious observers are entitled to exemptions from laws that restrict their religious conduct.¹² As the Supreme Court said more than a century ago, however, the First Amendment doesn’t “make the professed doctrines of religious belief superior to the law of the land.”¹³ More recently, the Court held that the First Amendment doesn’t exempt religious observers from “neutral, generally applicable law[s]” that incidentally infringe on their “religiously motivated action.”¹⁴ If a law isn’t neutral and generally applicable vis-à-vis religion, it warrants strict scrutiny.¹⁵ That is, religious observers are entitled to exemptions from laws that burden their religious exercise and aren’t neutral and generally applicable, unless the government can prove that such laws are narrowly tailored to achieving compelling state interests.¹⁶

Unsurprisingly, the crucial issue in many exemptions cases is whether the law or state action in question is neutral and generally applicable.¹⁷ In its short per curiam opinion in 2021, the Supreme Court held that a law isn’t generally applicable with respect to religion, and “therefore trigger[s] strict scrutiny under the Free Exercise Clause, whenever [it] treat[s] any comparable secular activity more favorably than religious exercise.”¹⁸ Comparability is “judged against the asserted government interest that justifies the regulation at issue.”¹⁹ Religious and secular acts are “comparable” if they “undermine[] the government’s asserted interests in a similar way.”²⁰ A state can’t prohibit the slaughter of animals for sanitation reasons but then exempt secular forms of slaughter that undermine the sanitation interest as much or more than religious killings that remain prohibited.²¹ Nor may a police department that prohibits officers from growing beards exempt officers with medical conditions but decline to exempt Muslim officers, when the two sets of exemptions would detract from the purpose of the rule in a similar way.²²

But when a law exempts certain secular conduct, how can courts assess whether a requested religious exemption would “undermine[] the government’s asserted interests in a similar way”?²³ What interests can the government assert? Who bears the burden to show or disprove comparability? What evidence is relevant to that inquiry?²⁴ Since the Supreme Court formally adopted the new general-applicability standard in 2021, these questions have become all the more critical in exemptions cases.²⁵

Even so, courts rarely address them explicitly and have reached inconsistent conclusions.²⁶ The Supreme Court has said that religious claimants bear the burden to show that laws are “not ‘neutral’ or ‘generally applicable’” (i.e., that “comparable” secular activity is exempt).²⁷ But in addressing California’s COVID-19 restrictions, the Court commented on the State’s failure “to explain why it could not safely permit at-home worshipers to gather in larger numbers” despite permitting larger gatherings in commercial settings (i.e., why the religious gatherings at issue were incomparable to the exempt secular gatherings).²⁸

Courts also have struggled to ascertain what the relevant governmental interests are. While the government’s “asserted” interests count under recent Supreme Court doctrine,²⁹ questions remain about which assertions are relevant (e.g., pre-enactment explanations vs. post-hoc rationalizations), and how broad and numerous the asserted interests can be.³⁰

Finally, courts have applied inconsistent evidentiary standards in assessing comparability. In declining to exempt religious observers from a COVID-19 vaccine mandate, one court emphasized that the mandate’s medical exemptions were “likely to be more limited in number than religious exemptions,” and thus that the requested religious exemptions would undermine the state’s COVID-19 measures more than the medical exemptions.³¹ A judge in another vaccine-mandate case rejected the same reasoning, concluding that “an influx of religious accommodation requests,” compared to a small number of medical exemptions, “is not a valid reason to deny First Amendment rights.”³²

These doctrinal inconsistencies are becoming more pronounced as lower courts attempt to apply the new standard.³³ This Article identifies these often-implicit discrepancies and proposes ways courts might approach these issues in future cases. In other words, this Article attempts to answer the “how” questions—namely, how courts can and should align the new comparability standard with the purposes of the general applicability test. Part I traces the origins of general applicability in the free exercise context. Part II examines the competing interpretive theories, the approach the Supreme Court recently adopted, the practical implications of the new standard, and the reasons general applicability matters. Part III focuses on how courts have been applying the recent doctrine and how they should determine whether secular and religious exemptions would undermine state interests in similar ways. This Article concludes by suggesting that the best way to assess religious and secular comparators is through a burden-shifting framework familiar in the antidiscrimination context, as well as a permissive evidentiary inquiry.

There are many important questions this Article doesn’t address. It has little to say about whether general applicability should matter for free exercise purposes, or whether general applicability should turn on the comparison of religious and secular activities. Although some of the following discussion inevitably implicates such questions, they aren’t this Article’s focus. Courts and commentators have debated these issues for decades.³⁴ The Supreme Court answered the first question in 1990,³⁵ and declined to revisit that decision in 2021.³⁶ It answered the second question at the height of the COVID-19 pandemic.³⁷ For better or worse, neutral, generally applicable laws don’t trigger strict scrutiny under the Free Exercise Clause.³⁸ And laws are generally applicable unless they treat religion worse than comparable secular conduct.³⁹ These are the waters of modern free exercise. The question now is how to navigate.⁴⁰

I. General Applicability Origins

The concept of general applicability emerged in the free-exercise context in the last fifty years.⁴¹ Before then, the Free Exercise Clause typically was read to require exemptions from certain laws that infringed on the exercise of religion, regardless of whether those laws were neutral and generally applicable.⁴² In a series of cases at the end of the twentieth century, the doctrine changed.⁴³

A. United States v. Lee

In the 1970s, an Amish farmer refused to pay social security taxes or participate in the social security system.⁴⁴ The IRS fined him more than $27,000 for unpaid taxes. He paid $91, the amount owed for the first quarter of 1973, then sued the United States in federal court for a refund, claiming that the imposition of the social security tax violated his free-exercise rights.⁴⁵ The case reached the Supreme Court, which accepted his belief that his faith forbade making social security payments or receiving benefits.⁴⁶ But the Court held that the government had “justif[ied] [this] limitation on religious liberty by showing that it [was] essential to accomplish[ing] an overriding governmental interest.”⁴⁷

Justice John Paul Stevens concurred in what would become crucial language in the development of free exercise jurisprudence.⁴⁸ He began by observing that the Court’s “constitutional standard suggest[ed] that the Government always bears a heavy burden of justifying the application of neutral general laws to individual conscientious objectors.”⁴⁹ He disagreed with that structure, arguing that a religious objector should “shoulder the burden of demonstrating that there is a unique reason for allowing him a special exemption from a valid law of general applicability.”⁵⁰ He agreed with the Court’s reasoning “that the difficulties associated with processing other claims to tax exemption on religious grounds” justified rejecting the petitioner’s claim, but only because “this reasoning support[ed] the adoption of a different constitutional standard than the Court purport[ed] to apply.”⁵¹ That is, “[t]he Court’s analysis support[ed] a holding that there [was] virtually no room for a ‘constitutionally required exemption’ on religious grounds from a valid tax law that [was] entirely neutral in its general application.”⁵²

B. Employment Division v. Smith

Almost a decade later, the Court adopted Justice Stevens’s view in what would become one of its most significant free exercise decisions. In the 1980s, the State of Oregon prohibited possession of “controlled substance[s]” except when prescribed by medical practitioners.⁵³ Alfred Smith and Galen Black were fired when they used the controlled substance, peyote, for sacramental purposes at a ceremony of the Native American Church.⁵⁴ The State denied them unemployment benefits because they had been fired for what counted as work-related misconduct.⁵⁵ They brought a free-exercise challenge in state court, and their case reached the Supreme Court of Oregon.⁵⁶ The court concluded they were entitled to unemployment benefits because the State’s reason for the “misconduct” rule—to preserve the financial integrity of the compensation fund—didn’t justify infringing on their religious practice.⁵⁷

The United States Supreme Court reversed.⁵⁸ It held that the compelling interest test—strict scrutiny—doesn’t apply to “neutral, generally applicable law[s]” that burden “religiously motivated action.”⁵⁹ “We have never held,” it explained, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”⁶⁰ It opined that “precisely because we value and protect religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.”⁶¹

C. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah

Several years after Smith, the Court had its first opportunity to clarify the scope of its holding. The case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,⁶² arose when a Santeria church, which practiced animal sacrifice, leased land in a Florida city.⁶³ In response to “concern” from members of the community “that certain religions may propose to engage in practices which are inconsistent with public morals, peace, or safety,” the city council convened and enacted several ordinances.⁶⁴ The ordinances prohibited “sacrific[ing] any animal within the corporate limits of the City.”⁶⁵ They applied to any group that killed, slaughtered or sacrificed animals for “any type of ritual.”⁶⁶ They exempted slaughtering by “licensed establishments” of animals “specifically raised for food purposes,” including kosher slaughter.⁶⁷

The church brought a free-exercise challenge, and the case reached the Supreme Court.⁶⁸ The Court held that the ordinances violated the church’s free-exercise rights.⁶⁹ First, it explained that, “[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.”⁷⁰ Citing Smith, the Court explained that “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.”⁷¹ Because the ordinances “exclude[d] almost all killings of animals except for religious sacrifice” and permitted “killings that [were] no more necessary or humane” than Santeria slaughters, they were both overinclusive and underinclusive with respect to their purported objective.⁷² The Court thus determined that the ordinances weren’t neutral.⁷³

Second, the Court held that the ordinances weren’t generally applicable. Although it declined to “define with precision the standard used to evaluate whether a prohibition is of general application,” it held that the ordinances failed the test for the same reasons they weren’t neutral.⁷⁴ It noted, for example, that the city “ha[d] not explained why commercial operations that slaughter ‘small numbers’ of hogs and cattle”—which were exempt from the ordinances—did “not implicate its professed desire to prevent cruelty to animals and preserve the public health.”⁷⁵

Because the ordinances weren’t neutral and generally applicable, the Court applied strict scrutiny.⁷⁶ It noted that “[a] law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.”⁷⁷ Even if the city had compelling interests for the ordinances, they weren’t narrowly tailored because “[t]he proffered objectives [were] not pursued with respect to analogous nonreligious conduct” and “could [have been] achieved by narrower ordinances that burdened religion to a far lesser degree.”⁷⁸

Justice Antonin Scalia, the author of Smith, concurred. He urged that a

defect of lack of neutrality applies primarily to those laws that by their terms impose disabilities on the basis of religion (e.g., a law excluding members of a certain sect from public benefits), whereas the defect of lack of general applicability applies primarily to those laws which, though neutral in their terms, through their design, construction, or enforcement target the practices of a particular religion for discriminatory treatment.⁷⁹

II. General Applicability Theory

In determining whether laws are generally applicable under Smith and Lukumi, courts must make two decisions. First, they must decide what makes a law generally applicable. Second, they need to figure out how to ascertain general applicability under the substantive standard. All the while, they must keep in mind the reasons why general applicability matters. The Supreme Court recently answered the first question, as discussed below in Section A. The second question, outlined in Section B, remains unresolved and is this Article’s primary focus. Section C discusses the normative theory underlying the general applicability test—in other words, the goals general applicability aims to achieve.

A. Substantive Theory (the “What”)

What does generally applicable mean? Since Smith and Lukumi, many courts and commentators have disagreed about when laws are generally applicable. One view is that a law is generally applicable unless it is intended to discriminate against religion.⁸⁰ After all, the Court in Lukumi spoke in discrimination terms when it called general applicability “[t]he principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief . . . .”⁸¹ The Supreme Court seemed to endorse the intentional discrimination view shortly after Lukumi, in City of Boerne v. Flores.⁸² The Court opined that the Religious Freedom Restoration Act (“RFRA”), enacted in response to Smith, attempted to “substantive[ly] alter[]” Smith’s holding by creating religious exemptions to laws “without regard to whether they had the object of stifling or punishing free exercise.”⁸³ The Court in City of Boerne held that RFRA was not a proper use of Congress’s power under Section Five of the Fourteenth Amendment because it called for strict scrutiny of laws not “motivated by religious bigotry.”⁸⁴ The Court thus suggested that a law doesn’t warrant strict scrutiny under Smith—and therefore is generally applicable—unless it is “motivated by religious bigotry.”⁸⁵ Some courts have adopted versions of this interpretation.⁸⁶

Still, the “discriminatory intent” view has received criticism.⁸⁷ As Lukumi reiterated, Smith prescribed strict scrutiny for laws that aren’t neutral and generally applicable.⁸⁸ While discriminatory intent usually undermines neutrality,⁸⁹ “general applicability” refers to the effect of the law rather than the intent of the legislature. A law may be generally applicable (or not) regardless of its underlying purposes. This is evident in Lukumi’s distinct discussions of neutrality and general applicability. Whereas the former concerned the “object” of a law,⁹⁰ the latter involved inequitable “results.”⁹¹

Other courts and commentators have endorsed what could be called a “substantial underinclusion” interpretation. Under this view, a law isn’t generally applicable if it is so riddled with secular exceptions that it effectively applies only to religious conduct.⁹² This approach relies on Lukumi’s admonition that “inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.”⁹³ Under this interpretation, a law can violate general applicability even without intentional discrimination, but only if it allows “substantial” secular conduct while prohibiting comparable religious exercise.⁹⁴ Appealing as this category may be on an intuitive level, however, it is susceptible to practical criticism insofar as it turns on degrees of underinclusiveness and the meaning of nebulous terms such as “substantial.”⁹⁵

At the other end of the spectrum is the theory the Court recently adopted, often called the “most-favored-nation” interpretation.⁹⁶ Under this theory, a law isn’t generally applicable if it makes implicit value comparisons between religious and secular motives.⁹⁷ A legislature can’t say, for example, that a secular reason for noncompliance with a law is more important than a religious reason.⁹⁸ This means that a law isn’t generally applicable with respect to religion if it exempts any form of secular conduct that detracts from its purpose as much as the prohibited religious conduct would.⁹⁹ In other words, a law “lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”¹⁰⁰

This is true even of laws that “treat[] some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue.”¹⁰¹ “The question is not whether one or a few secular analogs are regulated,” but “whether a single secular analog is not regulated.”¹⁰² Commentators sometimes use the analogy of racial favoritism in employment.¹⁰³ According to this argument, “the exercise of religion is entitled to be treated like the best-treated secular analog,” just as “[m]inority employees are entitled to be treated as well as the best-treated race, not merely as well as some other badly treated race.”¹⁰⁴ Because the Constitution provides special solicitude for religious exercise,¹⁰⁵ the argument goes, the government must place religious conduct in any preferred category it creates for analogous secular conduct.¹⁰⁶

Imagine that a police department prohibits all officers from growing beards because it wants to foster a uniform appearance on the force. If a Muslim officer seeks to grow a beard for religious reasons, the police department can refuse so long as the no-beard rule is rationally related to a legitimate state interest. There’s no question that the rule covers all officers and evinces no discriminatory intent, so it is generally applicable under any theory.

But if the police department were to exempt officers with medical conditions from the no-beard rule, the rule would no longer be generally applicable under the most-favored-nation approach because a medical exemption would compromise the uniform appearance of the force as much as a religious exemption. By allowing the medical exemption, the department would have acknowledged that some individual concerns outweigh its interest in uniformity, and religion, as the “most favored” reason for an exception, therefore must be exempt, also. This was then-Judge Samuel Alito’s reasoning in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark.¹⁰⁷ There, the Third Circuit concluded that the police department’s “decision to allow officers to wear beards for medical reasons undoubtedly undermine[d] the [d]epartment’s interest in fostering a uniform appearance through its ‘no-beard’ policy.”¹⁰⁸

The Supreme Court adopted the most-favored-nation interpretation in a per curiam decision in Tandon v. Newsom.¹⁰⁹ In 2021, in the midst of the COVID-19 pandemic, California promulgated regulations restricting social interactions.¹¹⁰ The regulations limited private, in-home gatherings to three households.¹¹¹ Two California residents seeking to hold in-home religious services with more than three households challenged the regulations on free-exercise grounds.¹¹² They argued that the regulations weren’t neutral and generally applicable because they didn’t apply the same three-household limit to commercial entities such as salons, retail stores, indoor restaurants, and train stations.¹¹³

The district court denied the claimants’ request to preliminarily enjoin the regulations, explaining that “[t]he State’s private gatherings restrictions appl[ied] to all gatherings, whether religious or secular.”¹¹⁴ Only commercial gatherings were treated differently.¹¹⁵ The Court of Appeals for the Ninth Circuit declined to stay the regulations pending appeal, pointing to the district court’s further “conclu[sion] that the State reasonably distinguishe[d] in-home private gatherings from the commercial activity [the claimants] assert[ed] [was] comparable.”¹¹⁶

The Supreme Court reversed.¹¹⁷ It held that the regulations likely weren’t neutral and generally applicable because they applied a less restrictive standard to what the Court deemed “comparable” secular gatherings.¹¹⁸ The Court explained 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,” meaning “the risks various activities pose, not the reasons why people gather.”¹¹⁹ According to the Court, “the Ninth Circuit did not conclude that [the comparator commercial] activities pose[d] a lesser risk of transmission than [the] applicants’ proposed religious exercise at home.”¹²⁰

As discussed below,¹²¹ Tandon rested on several questionable premises and created more uncertainty than it resolved. Even so, it cemented the most-favored-nation interpretation as the prevailing theory of general applicability under the Free Exercise Clause.¹²² Laws aren’t generally applicable if they exempt secular conduct that is “comparable” to the prohibited religious conduct.¹²³

B. Procedural Theory (the “How”)

How can parties establish or refute comparability? Ascertaining the substantive law isn’t enough. Just as important is determining the steps the parties must take to achieve their goals under the law. Anyone who watches legal dramas on television knows that criminal defendants are “innocent until proven guilty.”¹²⁴ Lawyers and nonlawyers alike understand that the prosecution bears the “burden of proof.”¹²⁵ The burdens and presumptions, in turn, can mean everything. They tell us what happens when the evidence is lacking.¹²⁶ If the record is sparse or inconclusive, criminal defendants can’t be convicted.¹²⁷

The burdens and presumptions in constitutional cases are just as impactful. Usually, courts presume that laws are constitutional.¹²⁸ A person challenging a law as unconstitutional thus bears the burden to demonstrate why.¹²⁹ Almost a century ago, however, the Supreme Court announced a “narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution.”¹³⁰

Consider discrimination claims under the Fourteenth Amendment. When a law applies to some groups but not others, a person in a restricted group can challenge that law under the Equal Protection Clause.¹³¹ If the law expressly distinguishes between people along “suspect class” lines, such as race, it is presumptively unconstitutional and triggers strict scrutiny.¹³² To establish a compelling justification for such classifications, the government essentially must prove that people in the restricted and unrestricted classes aren’t similarly situated.¹³³ That is, the government must demonstrate differences between the groups that provide compelling justifications for treating them differently.¹³⁴

Laws that classify based on innocuous or “benign” characteristics, by contrast, remain presumptively constitutional and trigger rational basis review.¹³⁵ For example, a law requiring police officers to retire by a certain age doesn’t violate the Equal Protection Clause if it rationally relates to a legitimate state interest.¹³⁶ In such cases, it is the challenger who must prove that the restricted and unrestricted groups are similarly situated in all relevant respects.¹³⁷

The presumption of constitutionality attaches in these cases because benign classifications necessarily appear in almost every law.¹³⁸ Equal-protection claimants alleging selective mistreatment under facially neutral policies likewise must show that others who are similarly situated have received better treatment.¹³⁹ In the rational basis cases, where claimants bear the burden, laws are much more likely to survive than in strict scrutiny cases where the government bears the burden.¹⁴⁰

Allocating the burdens and presumptions is just as important in free-exercise cases. In his concurrence in Lee, for example, Justice Stevens criticized the majority for requiring the government to carry “a heavy burden of justifying the application of neutral general laws to individual conscientious objectors.”¹⁴¹ He argued that a religious objector should “shoulder the burden of demonstrating that there is a unique reason for allowing him a special exemption from a valid law of general applicability.”¹⁴² Although Justice Stevens cared largely about what evidence would suffice to carry the relevant burdens, he saw the allocation of the burdens and presumptions as significant.¹⁴³ The government might not be able to demonstrate a sufficient justification for taxing the Amish claimant, but the claimant couldn’t prove the government lacked a sufficient justification.¹⁴⁴

In Smith, the Supreme Court latched on to Justice Stevens’s argument, explaining that “we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.”¹⁴⁵ In Tandon, however, the Court criticized the Ninth Circuit for failing to “requir[e] the State to explain why it could not safely permit at-home worshipers to gather in larger numbers while using precautions used in secular activities.”¹⁴⁶ In that sense, the Court seemed to say that California bore the burden to prove that the exempt secular conduct was incomparable to the requested religious exemption.

Akin to the concept of presumptions and burdens is the notion of deference. In free exercise and other constitutional cases, the outcome often turns on whether the government has a sufficient justification for its actions.¹⁴⁷ This requires courts to determine whether the factual assertions underlying those justifications deserve deference.¹⁴⁸ The Supreme Court has held, for example, that epidemiological evidence supporting state-enacted vaccine mandates is entitled to some level of deference, because “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”¹⁴⁹ And when the government chooses to prosecute a particular person for a crime, that decision warrants a degree of “judicial deference” because prosecutorial discretion is a component of the executive power.¹⁵⁰

Early in the COVID-19 pandemic, the Supreme Court faced a string of free-exercise cases requiring it to determine how much deference is due in particular circumstances. In the first case, decided in May 2020, the Court declined to enjoin a California executive order limiting attendance at public gatherings and prohibiting “places of worship” from exceeding twenty-five percent capacity or one hundred attendees.¹⁵¹ Concurring, Chief Justice John Roberts observed that “the Order exempt[ed] or treat[ed] more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”¹⁵² His reasoning is worth quoting at length:

Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. Where those broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.¹⁵³

In 2021, the Court changed course and enjoined a different California order insofar as it prohibited indoor worship services.¹⁵⁴ Chief Justice Roberts reiterated his view that “federal courts owe significant deference to politically accountable officials with the ‘background, competence, and expertise to assess public health,’”¹⁵⁵ but concluded that California’s latest order “appear[ed] to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”¹⁵⁶ Justice Elena Kagan dissented, arguing that the Court’s injunction “displace[d] the judgments of experts about how to respond to a raging pandemic,” and thereby required the State to “treat worship services like secular activities that pose[d] a much lesser danger.”¹⁵⁷

Professor Cass Sunstein has endorsed the Court’s reversal of course in these COVID-19 cases, arguing that too deferential a standard might allow states to trounce constitutional rights in the face of crises.¹⁵⁸ Declining to accord such deference, he argues, “can reasonably be seen as a kind of anti-Korematsu—as a strong signal of judicial solicitude for constitutional rights and of judicial willingness to protect against discrimination, even under emergency circumstances in which life is on the line.”¹⁵⁹ This admittedly “harsh” comparison has caught on, leading others to warn against applying the “doggedly deferential reasoning” of Korematsu v. United States¹⁶⁰323 U.S. 214 (1944). In Korematsu, the Supreme Court upheld Fred Korematsu’s conviction for violating an order interning United States citizens of Japanese ancestry, based largely on deference to military authorities about national security issues. Id. at 218–19. to free-exercise cases.¹⁶¹

The upshot is that the allocation of presumptions and burdens is often as important as ascertaining the substantive law. This is certainly true in free-exercise cases, where substance and methodology work in tandem. Unfortunately, courts are able to—and often do—manipulate the procedural levers to reach partisan outcomes.¹⁶² Perhaps because these maneuvers don’t involve the more controversial—and academically attractive—substantive questions (the “what” questions), courts are able to allocate presumptions and burdens implicitly, if the parties even bother to dispute them in the first place. Given the Supreme Court’s recent endorsement of a substantive theory—the most-favored-nation approach—answering the “how” questions is more important now than ever.

C. Normative Theory (the “Why”)

Why does general applicability matter? That is, why do courts care about religious and secular comparators? Deciding what general applicability means (the “what”) and the relevant procedural framework (the “how”) requires courts to make some version of these normative judgments. General applicability isn’t written in the First Amendment. It is a judicial standard adopted to preserve what the Smith Court saw as the most likely meaning of the Free Exercise Clause.¹⁶³ When courts decide which substantive interpretation is “correct,” and what practical standards they “ought” to adopt, they need to consider the reasons the Court announced general applicability as a threshold test in the first place. When this Article discusses how courts have attempted to ascertain comparability, and when it proposes alternatives, it relies on the goals underlying the general applicability standard. This isn’t to say these goals are necessarily worthwhile, but merely that they undergird any application of the general applicability test.

The Court in Smith adopted general applicability as a threshold requirement largely to limit the universe of laws susceptible to free exercise challenges.¹⁶⁴ It decided the case within the familiar framework of constitutional presumptions, explaining that “we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.”¹⁶⁵ Given the diverse array of religious beliefs in the United States, the potential consequences of subjecting laws to strict scrutiny at the behest of individual religious observers, at least as a constitutional matter, concerned the Court.¹⁶⁶ In formulating the neutrality and general applicability requirements, the Court thus invoked its warning from more than a century earlier that the Free Exercise Clause doesn’t “make the professed doctrines of religious belief superior to the law of the land.”¹⁶⁷ It observed that applying strict scrutiny to all laws that burden religious exercise “would be courting anarchy.”¹⁶⁸ The Court then listed “civic obligations of almost every conceivable kind” that it anticipated the neutrality and general-applicability barriers would insulate against attack.¹⁶⁹ These weren’t assurances that laws in each category would always satisfy neutrality and general applicability,¹⁷⁰ but their inclusion emphasizes the Court’s desire to limit the universe of laws susceptible to legitimate free-exercise challenges. In the words of one commentator, Smith signaled the beginning of “a jurisprudence whose master principle was that courts should not give religious exemptions.”¹⁷¹

Ultimately, this Article accepts that Smith remains the controlling law and that the most-favored-nation interpretation is the prevailing theory of general applicability. It contends that general applicability was meant to avoid free-exercise challenges to “civic obligations of almost every conceivable kind.”¹⁷² Keeping these considerations in mind, the next Part discusses the practical questions that remain in assessing general applicability through an analysis of religious and secular comparators.

III. General Applicability Comparators

Under the most-favored-nation interpretation, cases like the police department’s no-beard rule might be easy to resolve in favor of religious challengers for substantially the same reasons that the Third Circuit gave in Fraternal Order. But by declaring the medical exemption “undoubtedly” comparable to the requested religious exemption, the court elided the “how” questions that would become important in harder cases. It didn’t say, for example, how courts should make the relevant comparisons, who should bear the burdens, the level of proof required, or the level of deference that should be accorded the government’s stated reasons for granting secular exemptions. Put simply, it didn’t say how to determine when a secular exemption is “comparable” to the religious conduct at issue (i.e., how to determine whether a law “permit[s] secular conduct that undermines the government’s asserted interests in a similar way”).¹⁷³ The Supreme Court provided little helpful guidance in Tandon, and lower courts have continued to struggle with the standards.¹⁷⁴

Developing a coherent understanding of the modern doctrine is more important now than ever. The exemptions cases are socially divisive, and the amorphous nature of the law has led to outcomes that seem more political than principled.¹⁷⁵

This Article doesn’t wade into the lengthy debate on whether general applicability is the proper standard or whether the Supreme Court has properly interpreted the test.¹⁷⁶ Under Tandon, laws aren’t generally applicable if they exempt secular conduct while prohibiting religious conduct that would do “comparable” damage to the government’s interests.¹⁷⁷ Rather, this Article proposes a practical implementation of the most-favored-nation theory and its “comparability” test that comports with the goals of the general-applicability requirement. This Part considers how courts can (A) ascertain the “government’s asserted interests,” and (B) determine whether religious exemptions would undermine those interests “in a similar way” to exempt secular conduct. It then (C) proposes how a court might best evaluate religious and secular comparators in a case resembling Smith.

A. Ascertaining the Relevant Interests

In determining whether religious and secular exemptions would undermine the government’s interests in similar ways, the first issue is ascertaining the relevant interests.

1. Identification

In Lukumi, the Supreme Court considered whether religious and secular animal killings were comparable vis-à-vis the City’s “professed desire to prevent cruelty to animals and preserve the public health.”¹⁷⁸ The Court in Tandon held that “whether two activities are comparable for purposes of the Free Exercise Clause” is “judged against the asserted government interest that justifies the regulation at issue.”¹⁷⁹ And in Fulton v. City of Philadelphia,¹⁸⁰ it explained that religious and secular acts are comparable if they “undermine[] the government’s asserted interests in a similar way.”¹⁸¹ These statements suggest that the government’s characterization of its interests warrants some deference.¹⁸²

On the other hand, there must be limits to this deference, since the “government’s asserted interests” are, in one sense, to accomplish exactly what its laws accomplish. Just as it is circular to say that “a law is always generally applicable to the objects to which it applies,”¹⁸³ it is circular to say that the interest justifying a law is the prevention of the things the law prevents.¹⁸⁴ A police department with a rule against beards for nonmedical reasons can’t assert an interest in “preventing officers from growing beards for non-medical reasons.” The government must say why it prevents or requires certain conduct. The police department must explain why it forbids beards at all, and why it nevertheless allows beards in some circumstances.¹⁸⁵

To further complicate things, many laws target interests that aren’t explicit in their text.¹⁸⁶ And the government often has multiple reasons for its actions, some of which may be general and others specific. These complexities confounded the Ninth Circuit in 2021 when a school district in California mandated that students and staff receive a COVID-19 vaccine unless they qualified for a medical exemption.¹⁸⁷ The court denied a religious student’s request for an injunction pending appeal, explaining that the medical exemption served the “primary” interest for imposing the mandate—protecting student “health and safety.”¹⁸⁸ In the court’s view, religious claimants could take the vaccine without risking their health and safety, whereas the vaccine itself would compromise the health and safety of medical claimants.¹⁸⁹ A medical exemption therefore would undermine the government’s asserted interest less than a religious exemption.¹⁹⁰ The dissent argued that religious and medical exemptions would “pose identical risks to the government’s asserted interest,” which the dissent framed as “‘ensur[ing] the highest-quality instruction in the safest environment possible for all students and employees’ by preventing the transmission and spread of COVID-19.”¹⁹¹ The dissent contended that allowing a religious claimant to remain unvaccinated would undermine the goal of stemming COVID-19 just as much as allowing a medical claimant to remain unvaccinated.¹⁹²

The case thus turned in large part on what the district’s “asserted interest” actually was.¹⁹³ That is, an interest in protecting student “health and safety,” generally, or creating a COVID-19-safe environment, specifically.¹⁹⁴ In a footnote, the majority rejected the dissent’s “narrower formulation,” reasoning that “the interest the District emphasize[d] most frequently in the record with respect to the student vaccination mandate [was] protecting the ‘health and safety’ of students.”¹⁹⁵ Whether California should have been permitted to assert such a broad interest is another issue,¹⁹⁶ but the important point for now is that the court opted for the broader interest because it was the government’s most frequently asserted version.¹⁹⁷

Whether one ultimately agrees with the majority or dissent, frequency was an odd focus. As noted, laws often have multiple goals. Claimants always can contest whether laws actually serve each asserted goal, or whether religious exemptions actually would undermine each goal. But claimants can’t simply ignore interests that their conduct would uniquely jeopardize on the ground that their conduct wouldn’t uniquely jeopardize other interests. As one commentator has argued, a “law [that] is found to be underinclusive for [one] purpose[]” may “still satisfy the test of general applicability so long as the law addresses at least one legitimate governmental purpose and is not underinclusive with respect to that purpose.”¹⁹⁸ This makes sense, since the government should be able to decline a religious exemption that would uniquely undermine any legitimate state interest, even if the exemption wouldn’t undermine certain other interests.

Courts consider multiple governmental interests all the time in the parallel context of RFRA.¹⁹⁹ In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,²⁰⁰ the Court assessed the government’s evidence that allowing religious uses of a hallucinogenic drug would (1) cause health risks to religious users and (2) lead to diversion into the recreational market.²⁰¹ And in Holt v. Hobbs,²⁰² the Court considered whether banning beards in prisons would prevent inmates from (1) smuggling contraband and (2) disguising their identities.²⁰³ It would make no sense to deem religious drug use comparable to, say, medical use, just because both uses would compromise people’s health, if religious use would lead to substantially more recreational diversion.²⁰⁴ Nor would it make sense to deem a dermatological exception to the no-beard rule comparable to a religious exception simply because they would equally undermine the contraband interest, if only the religious exception would undermine the disguise interest.²⁰⁵

Another key question is timing. When has the government asserted its interests? Do the asserted interests incorporate what lawmakers said before the law was enacted? Are the interests limited to what’s written in the law’s text? Can the government formulate its interests in response to requests for religious exemptions or even litigation? What if, after its enactment, a law provides more benefits than those originally intended?

The first question—whether to consider preenactment statements—concerns legislative history.²⁰⁶ In his Lukumi concurrence, Justice Scalia noted the practical difficulties of attempting to “determine the singular ‘motive’ of a collective legislative body.”²⁰⁷ Justice Anthony Kennedy, by contrast, would have considered “the historical background of the decision under challenge.”²⁰⁸ Justice Kennedy’s view prevailed decades later, at least with respect to neutrality, when he wrote for the Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission²⁰⁹138 S. Ct. 1719 (2018). that “[f]actors relevant to the assessment of governmental neutrality include . . . ‘the legislative or administrative history, including contemporaneous statements.’”²¹⁰

At least some lower courts also have considered contemporaneous legislative statements in assessing general applicability. In another vaccine mandate case, the Second Circuit accepted New York’s asserted interests in seeking both to “prevent the spread of COVID-19 in healthcare facilities,” and to “reduce the risk of staffing shortages that [could] compromise the safety of patients and residents even beyond a COVID-19 infection.”²¹¹ The court emphasized that “[t]he State [had] identified these objectives in the Regulatory Impact Statement accompanying [its] emergency rulemaking,” and the claimants had “not point[ed] to any evidence suggesting that the interests asserted [were] pretextual or should otherwise be disregarded in the comparability analysis.”²¹² The court thus viewed New York’s official statement at the time of enactment as reflecting its “asserted” interests.²¹³

At the other end of the spectrum are instances where the government articulates an interest for the first time in responding to a free exercise challenge. Justice Neil Gorsuch has argued “that only the government’s actually asserted interests as applied to the parties before it count—not post-hoc reimaginings of those interests expanded to some society-wide level of generality.”²¹⁴ This principle is familiar in the context of heightened scrutiny, where “[t]he justification must be genuine, not hypothesized or invented post hoc in response to litigation.”²¹⁵

But Justice Gorsuch’s insistence that “post-hoc reimaginings” don’t count in assessing general applicability doesn’t follow from the heightened scrutiny cases. The general-applicability inquiry is a threshold test to determine whether strict scrutiny applies, not a form of heightened scrutiny itself. If anything, the comparability test is more akin to rational basis review, where courts may consider not only the legislature’s asserted purposes, but also hypothetical justifications. This is because the Supreme Court “has never insisted that a legislative body articulate its reasons for enacting a statute.”²¹⁶

The general-applicability test isn’t simply rational basis review, of course, so the analogy isn’t perfect. But the “plausible reasons” approach still seems more sensible than the “actually asserted reasons” standard Justice Gorsuch proposes. Smith requires courts to determine whether a law is or isn’t generally applicable,²¹⁷ not whether it would be generally applicable if limited to the reasons the legislature actually gave at the time of enactment. As the Court noted in Lukumi, neutrality concerns “the object of a law,”²¹⁸ whereas general-applicability concerns “[unequal] results.”²¹⁹ While the government’s stated interests at the time of enactment may be relevant to whether a law is generally applicable, the actual legislative motive, to the extent it can be discerned, isn’t dispositive of the interests the law serves.

Say, for example, that to reduce overdoses from an addictive drug, a state prohibits the use of that drug except in designated, state-sanctioned facilities where users can be monitored and discharged when they become sober.²²⁰ Imagine a religious observer later seeks an exemption, arguing that limited sacramental use of the drug in churches wouldn’t lead to overdoses either. Say also that, since the statute’s enactment, illegal, recreational uses of the drug have led to numerous car accidents, whereas uses in state facilities haven’t resulted in accidents because users are monitored as they leave. Finally, assume that such monitoring wouldn’t be feasible in the sacramental context. Is the religious exemption comparable to the secular exemption just because both would similarly preserve the law’s original articulated purpose of stemming overdoses? In other words, are potential sacramental uses and state-facility uses analogous for general-applicability purposes, just because neither would lead to many overdoses? Or may a court consider the post-hoc accident-prevention rationale, too?

It seems that Justice Gorsuch would say only the overdose interest is relevant, because that’s the only reason the legislature gave for enacting the statute. But this is hard to justify, since there is a legitimate reason to exempt the secular conduct that doesn’t apply to the religious conduct. The law is generally applicable without a religious exemption, regardless of whether it would be generally applicable if it served only the original legislative purpose. And were post-enactment interests off limits, religious claimants could uniquely undermine benefits of laws simply because those benefits weren’t obvious or expressed at the time of enactment.

Ultimately, in assessing whether secular and religious exemptions would undermine the government’s asserted interests in similar ways, courts should consider interests asserted at any time. Those interests still must be legitimate, but it shouldn’t matter when the government first articulates them. Further, the government should be able to assert multiple interests. After all, under the modern approach, general applicability is an effects-oriented inquiry, not an effort to ascertain discriminatory intent.²²¹

2. Scope

Justice Gorsuch also has argued that the government shouldn’t be permitted to “expand[]” its asserted interests “to some society-wide level of generality,” such as protecting “‘health and safety.’”²²² As he wrote when he was a judge on the Tenth Circuit, “[t]he more abstract the level of inquiry, often the better the governmental interest will look,” resulting in “individual interest[s] appear[ing] the less significant.”²²³ Commentators have raised the inverse concern, too—that construing interests at a high level of generality can unfairly aid free-exercise claimants.²²⁴

But these concerns pertain to the compelling-interest test that arises under strict scrutiny, not to the modern formulation of the threshold general-applicability inquiry.²²⁵ The compelling-interest test in the free-exercise context historically has involved interest-balancing and value judgments.²²⁶ In assessing general applicability under the Tandon approach, however, the importance of the government’s interest is largely beside the point; the religious conduct underlying the requested exemption must be considered just as important as whatever secular conduct the existing exemption preserves.²²⁷ The “individual interest” in religious exercise never runs the risk of appearing “less significant,”²²⁸ because that conclusion is legally impermissible.²²⁹ The only question is whether the secular and religious conduct would undermine the government’s interests, whatever those interests are, in similar ways. The government’s interests must have been asserted and must be “legitimate,”²³⁰ but that’s it. If a religious exemption undermines any asserted and legitimate governmental interest more than a secular exemption, the breadth of that interest hardly matters at the general-applicability stage.

Return to the police department’s no-beard rule in Fraternal Order.²³¹ Although the department framed its interest as preserving a uniform appearance, the scope of the asserted interest was essentially irrelevant. No matter what, exempting religious claimants wouldn’t have undermined that interest more than exempting medical claimants.²³² Say the department had framed the interest narrowly, such as “preserving a uniform appearance on the force.” Allowing officers to have beards for medical reasons obviously would have undermined that interest in a similar way to a religious exemption. Alternatively, say the department had framed its interest broadly, such as “protecting the community.” Allowing officers to grow beards for religious reasons might have undermined that interest by compromising the professional appearance of the police and thereby diminishing civilians’ respect for officers. But a medical exemption would have had the exact same effect. It still would have resulted in officers with beards. No matter the reason for the no-beard rule—broad or narrow—medical and religious exemptions would have undermined that rule in similar ways; namely, some officers would have beards.

Likewise, religious conduct that would uniquely undermine any of a law’s legitimate purposes, whether broad or narrow, isn’t analogous to secular conduct that would leave any of those purposes intact. If religious conduct would compromise a broad, abstract interest in “health and safety” more than the exempt secular conduct, the two activities aren’t comparable. Consider a murder statute that has an exception for self-defense.²³³ The statute undoubtedly serves an interest in “preventing killings.”²³⁴ But an exception for religiously-motivated killings²³⁵ arguably would undermine that interest to the same degree as the self-defense exception, because both would allow certain killings. Were the purpose of the murder statute limited to this formulation, the most-favored-nation interpretation would favor allowing people to kill others for religious reasons.²³⁶ Framing the relevant interest as “preventing unjustified killings”—as some have suggested²³⁷—wouldn’t avoid this issue. Rather, this framing would solicit the same impermissible value-judgment of whether religious killings are as “justified” as self-defense killings.²³⁸

But our intuitions against this outcome can be reconciled with the most-favored-nation approach.²³⁹ A murder statute may serve the narrow interest of preventing killings, but it may also serve broader interests such as preserving a societal sense of peace.²⁴⁰ Allowing religious killings would undermine this interest more than allowing self-defense killings, which can occur only when a reasonable person would perceive an imminent and grave danger.²⁴¹ Even when self-defense killings are permitted, people can’t legally kill one another based on purely subjective motives that a “reasonable person” wouldn’t share.²⁴² A religious exception to a murder statute would disrupt this sense of peace, because it would deprive citizens of the confidence that they won’t be killed for other people’s internal reasons. This doesn’t mean religious motives are less “valuable” in some abstract sense than self-defense motives; it merely recognizes that religious and secular killings aren’t comparable vis-à-vis a murder statute simply because they equally compromise its narrower purpose.

Finally, secular and religious practices that equally undermine a law’s broad purposes sometimes disproportionately undermine its narrower purposes. The Ninth Circuit recently elided this nuance when it enjoined a school’s enforcement of an antidiscrimination policy in Fellowship of Christian Athletes v. San Jose Unified School District Board of Education.²⁴³ The school revoked a Christian student organization’s official status when the organization required its leaders to attest that homosexuality is an “impure lifestyle” and that “marriage is exclusively the union of one man and one woman.”²⁴⁴ The school’s policy prohibited official clubs from discriminating based on sexual orientation, gender identity, race, and certain other characteristics, which the Christian organization’s rule clearly violated.²⁴⁵ The court held that the rule wasn’t generally applicable, however, because the school allowed affinity groups such as the “Big Sisters/Little Sisters” club to limit membership based on protected characteristics such as gender identity.²⁴⁶ According to the court, the rule thus exempted “comparable” secular organizations from the antidiscrimination rule.²⁴⁷

In reaching its conclusion, the court appeared to treat the interest underlying the policy as singularly broad (e.g., preventing disparate treatment based on protected characteristics).²⁴⁸ But the court didn’t consider that the policy might serve another, narrower interest (e.g., preventing stigmatization of certain protected classes of people).²⁴⁹ Affinity groups supporting women, such as Big Sisters/Little Sisters, arguably don’t stigmatize those who can’t join. Such groups don’t exclude based on perceptions that nonmembers are inferior or “impure.”²⁵⁰ But a religious group that calls homosexuality an “impure lifestyle” arguably stigmatizes a protected class. It potentially undermines an antistigmatization purpose of the policy that the Big Sisters/Little Sisters club doesn’t. All this is to say, the school in the Ninth Circuit case might have enforced its policy exclusively against the religious group because the religious group uniquely undermined the school’s legitimate interest in preventing stigmatization and dignitary harms. The Ninth Circuit didn’t broach the issue.²⁵¹

The Ninth Circuit’s decision also highlights Tandon’s impact on another category where the scope of an asserted interest is crucial: cases where religious views compete with antidiscrimination laws. Take Title VII of the Civil Rights Act, which prohibits discriminatory employment decisions but exempts businesses with fewer than fifteen employees.²⁵² A federal district court in Maryland recently deemed Title VII generally applicable because the claimant’s business and businesses with fewer than fifteen employees were not “reasonably comparable institutions.”²⁵³ A federal district court in Texas, by contrast, held that Title VII isn’t generally applicable because the small-business exception undercuts the governmental “interest in eradicating all forms of discrimination” just as much as a religious exception.²⁵⁴

What explains the different results in the Maryland and Texas cases? One possible answer is interest-framing. The EEOC in the Texas case apparently articulated only one, broad purpose for Title VII—”eradicating all forms of discrimination.”²⁵⁵ While this may be one of Title VII’s goals,²⁵⁶ however, this framing seems unnecessarily general. Title VII also helps provide equal access to employment for members of protected groups, protects people in those groups from experiencing discrimination and the attendant dignitary harms, and reduces economic inequality.²⁵⁷

While the small-business exception certainly undermines the equal-access purpose to a degree,²⁵⁸ it may not generate as much discrimination and inequality as a religious exception that applies to employers of any size. Allowing the occasional small business to discriminate undermines Title VII’s goals to a degree, but allowing companies with thousands of employees to discriminate on religious grounds could be substantially more disruptive. This rationale persuaded the court in the Maryland case.²⁵⁹ Further, a religious exception likely would cause more otherwise-protected employees and prospective employees to experience discrimination. This is because job applicants can determine whether businesses have fewer than fifteen employees, whereas they likely can’t easily learn the religious views of each prospective employer. They are thus more likely to seek employment from, and face discrimination by, employers invoking the religious exception.

Ultimately, Justice Gorsuch’s focus on the breadth of the interests might be useful in a balancing test where value judgments are required. But that focus misses the point in the modern general-applicability context, where such judgments are impermissible.²⁶⁰

3. Category

Despite missing the mark with respect to identity and scope, Justice Gorsuch was right about one thing. Under the most-favored-nation theory, the question is whether the religious and secular activities would similarly undermine the purpose of the law itself, not whether the exempt secular activity itself serves a valuable countervailing purpose.²⁶¹ If a COVID‑19 restriction on building occupancy exempts grocery stores but not churches, the question is whether grocery stores spread COVID‑19 more than churches, not whether grocery stores further some other interest that churches don’t (e.g., providing sustenance).²⁶² Taken to the extreme, this means that a secular exception that would save lives is just as likely to warrant strict scrutiny as a secular exception that would merely prevent minor inconveniences.²⁶³ If a vaccine mandate exempts people who would die from the vaccine, the most-favored-nation interpretation says that any sincerely-asserted religious harm must be considered equally dire.²⁶⁴ Religion is always as important as the exempt secular conduct.²⁶⁵

When the Ninth Circuit declined to exempt religious claimants from the school vaccine mandate because the comparator medical exception furthered a crucial health and safety interest,²⁶⁶ the court arguably erred by “focus[ing] on the reasons for the [medical] exemption rather than the asserted interest that justifie[d] the mandate.”²⁶⁷ The medical exemption undermined the primary interest for the mandate because it increased the number of unvaccinated people, and thus increased the viral risk, even though it furthered a different health and safety interest—namely, protecting people from the more severe medical consequences of taking a contraindicated vaccine.²⁶⁸ In that sense, the medical exception allowed the very harm the vaccine mandate was meant to curtail, but that compromise was worth it to further a countervailing interest in preventing adverse reactions. The case appeared more challenging because the interest underlying the medical exception also involved health and safety.²⁶⁹ But the health goals of the medical exception had to be treated as equal to the religious interest underlying the claimants’ requested religious exemption. The question should have been whether the medical and religious exemptions similarly undermined the health and safety goals underlying the vaccine mandate itself.

This isn’t to say that the Ninth Circuit got the ultimate answer wrong. If, for example, the vaccine would have been less effective for those with medical contraindications, then a religious exemption would have undermined the effectiveness of the mandate more than the medical exception. And, as discussed below, religious exemptions appeared likely to uniquely compromise the purpose of the mandate insofar as they would have been more numerous and clustered.²⁷⁰

Ultimately, states should be able to assert whatever interests they want, since they are the entities that enact the rules in the first place. Those interests must be “legitimate,”²⁷¹ but that’s it.²⁷² States should also be able to identify multiple interests, since laws often serve multiple goals. And states should not need to have asserted those interests at any particular time before the litigation, since laws don’t always list everything they are designed to accomplish, and additional benefits may emerge after enactment. On the other hand, the asserted interests must be those that underlie the laws themselves, not the interests that underlie the secular exemptions.

One point is worth reiterating. Recognizing that the government can assert as many interests as it wants at any level of generality isn’t acknowledging a loophole for savvy litigators. The government can’t assert interests that its laws don’t actually serve.²⁷³ If it did, exempting religious conduct wouldn’t undermine those interests at all, and would thus be comparable to secular exceptions that also wouldn’t undermine those interests. And if a law actually does serve multiple purposes, and a religious exemption actually would uniquely undermine one of those purposes, there is good reason to deny the religious exemption. This may mean most laws that include secular exceptions are generally applicable. But that’s exactly what Smith suggests.²⁷⁴

B. Proving or Disproving Comparability

Once courts ascertain the relevant governmental interests, how can they determine whether the exempt secular conduct and proposed religious conduct would undermine those interests in similar ways? Should courts defer to the government’s assertions of what activities are comparable? Who bears the burden to show or disprove comparability? Is a requested religious exemption comparable to a secular exception if the specific claimant’s religious exercise would undermine the purpose of the law no more than a single secular exemption? Or should courts assess whether exempting all potential religious claimants would undermine a law’s purposes more than granting the secular exemption to all eligible applicants? Courts have given inconsistent answers to these questions, both explicitly and implicitly. This Section considers the issues of (1) Burdens and (2) Evidence.

1. Burdens

This Section discusses (a) how courts have allocated the burden of proving or disproving comparability, and (b) a possible methodology that would create consistency and bring the doctrine into line with the purposes of the general applicability standard.

a. Burdens in Practice

In reversing the lower courts, the majority in Tandon reached two questionable conclusions, even under the most-favored-nation interpretation of general applicability that the Court endorsed.²⁷⁵ First, in criticizing the Ninth Circuit for failing to “requir[e] the State to explain why it could not safely permit at-home worshipers to gather in larger numbers while using precautions used in secular activities,”²⁷⁶ the Court ignored that the State provided precisely this explanation. As the Ninth Circuit noted:

[T]he district court found that the State reasonably concluded that when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting; that participants in a social gathering are more likely to be involved in prolonged conversations; that private houses are typically smaller and less ventilated than commercial establishments; and that social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.²⁷⁷

The district court, in turn, had relied on evidence the State submitted, and the religious claimants didn’t “dispute any of [its] findings” on appeal.²⁷⁸ Justice Kagan pointed this out in her dissent, arguing that “the Court ha[d] no warrant to ignore the record.”²⁷⁹

But perhaps more importantly, the Supreme Court muddled the threshold question of who bore the burden to show whether the commercial businesses were comparable to the private religious gatherings at issue.²⁸⁰ The Ninth Circuit had held that the religious claimants bore the “burden of showing that the regulation trigger[ed] strict scrutiny by regulating religious activities more strictly than comparable secular activities.”²⁸¹ It considered, for example, “whether [the claimants] ha[d] shown that rallies and protests [were] comparable secular activities.”²⁸² And it noted that the claimants had “not explain[ed] why salons should be considered analogous secular conduct” and had “point[ed] to nothing in the record to support that comparison.”²⁸³ The Ninth Circuit thus placed the relevant burden on the religious claimants, so any evidentiary deficiencies supported—not undermined—general applicability.

The Supreme Court, by contrast, seemed to place the burden on the government, criticizing the Ninth Circuit for failing to “requir[e] the State to explain why it could not safely permit at-home worshipers to gather in larger numbers.”²⁸⁴ The Court then summarily concluded that “California treats some comparable secular activities more favorably than at-home religious exercise.”²⁸⁵ The Court thus implicitly rejected the Ninth Circuit’s allocation of the burdens.

Lower courts, both before and after Tandon, also have inconsistently allocated the burdens of showing or disproving comparability.²⁸⁶ Some, like the Ninth Circuit in Tandon,²⁸⁷ have placed the burden on religious claimants, at least implicitly. For example, the Second Circuit seemed to do so in a 2021 case involving New York’s emergency COVID-19 vaccination requirement for healthcare workers.²⁸⁸ In that case, various healthcare workers subject to the mandate sued, arguing “that because the State ha[d] afforded a medical exemption to its requirement, the Free Exercise Clause require[d] the State also to afford a religious exemption.”²⁸⁹ The court began by explaining that the claimants bore the burden to disprove neutrality and general applicability.²⁹⁰ Although it noted that the State had ”presented evidence that raise[d] the possibility that the exemptions [were] not comparable in terms of the ‘risk’ that they pose[d],” it denied the plaintiffs’ request for a preliminary injunction because the “sparse” record did “not support a conclusion that [the] [p]laintiffs ha[d] borne their burden of demonstrating that the medical exemption . . . and the religious exemption sought [were] likely comparable.”²⁹¹ This suggests that the claimants bore the burden of showing comparability, because, otherwise, the “sparse” record easily could have compelled the opposite conclusion.²⁹²

Likewise, the Ninth Circuit reaffirmed its position, post-Tandon, that religious claimants bear the burden of showing secular comparators. In late 2022, the court affirmed the dismissal of a religious therapist’s challenge to a Washington law against practicing “conversion therapy, which seeks to change an individual’s sexual orientation or gender identity.”²⁹³ The therapist argued that “gender-affirming therapy,” which the law allowed, similarly undermined the state’s interests by causing “the very types of psychological harms Washington [said] it want[ed] to eliminate by prohibiting conversion therapy.”²⁹⁴ The court rejected this purported comparator because the law addressed “scientifically documented increased risk[s] of suicide and depression,” and the therapist provided only “anecdotal reports of ‘regret’” from gender-affirming therapy.²⁹⁵

The Tenth Circuit likewise placed the burden on the religious claimant in 303 Creative LLC v. Elenis²⁹⁶6 F.4th 1160 (10th Cir. 2021).—a case the Supreme Court recently reviewed on free-speech grounds²⁹⁷—where a website designer refused²⁹⁸ to create websites for same-sex marriages in violation of a Colorado antidiscrimination law.²⁹⁹ The court rejected the free exercise challenge, holding that the designer bore the burden to show that the law wasn’t neutral and generally applicable.³⁰⁰ As to general applicability, the court noted that the designer had “provide[d] no examples where Colorado permitted ‘secular-speakers’ to discriminate against LGBT consumers,” and thus had “fail[ed] to show that Colorado disfavor[ed] similarly-situated ‘religious-speakers.’”³⁰¹

Finally, in a pre-Tandon case, the Northern District of New York placed the burden of proving comparability on religious plaintiffs, the Association of Jewish Camp Operators and various parents, who had asked the court to enjoin a COVID-19 restriction banning children’s overnight camps.³⁰² The court explained that although the restriction exempted college dormitories, and some overnight camps used similar facilities, the plaintiffs had “provided no evidence regarding the sleeping arrangements for the overnight camps themselves,” and “fail[ed] to mention whether individuals would be required to wear masks during camp activities, including sleeping.”³⁰³ The court thus concluded “that none of the specific explicit exemptions” that the claimants identified were “sufficiently comparable to permitting an overnight camp for the purposes of a general-applicability analysis.”³⁰⁴

Other pre-Tandon cases appear to reflect the opposite allocation of the burdens. For example, in Central Rabbinical Congress of the United States & Canada v. N.Y.C. Department of Health & Mental Hygeiene,³⁰⁵ the Second Circuit applied strict scrutiny to a city ordinance that prohibited performing oral suction during circumcisions, a practice that allegedly had been spreading infections.³⁰⁶ Orthodox Jewish organizations in New York asked the court to preliminarily enjoin the ordinance for violating their free-exercise rights.³⁰⁷ After determining that the ordinance wasn’t neutral, the Second Circuit considered general applicability as an alternate basis for its holding.³⁰⁸ It explained that, on “the sparse record at th[e] preliminary stage,” it could not “conclude that [the ordinance was] generally applicable.”³⁰⁹ Unlike in the vaccine mandate case, therefore, the “sparse” record supported—not undermined—a finding of comparability.

Likewise, in Blackhawk v. Pennsylvania,³¹⁰ the Third Circuit appeared to place the burden of disproving comparability on the government.³¹¹ Pennsylvania’s Game and Wildlife Code required people seeking to possess certain animals to obtain permits.³¹² A Native American religious claimant sought an exemption to possess black bears without paying the permitting fee, citing his religious beliefs.³¹³ At the summary judgment stage, the Third Circuit agreed with the claimant that the Game and Wildlife Code wasn’t generally applicable, in part because it contained categorical exceptions for zoos and circuses.³¹⁴ Pennsylvania had asserted two “main interests” behind the law: earning money through permit fees, and discouraging the keeping of wild animals in captivity where captivity would not benefit the wildlife populations.³¹⁵ The court first concluded that “[t]he state’s interest in raising money [was] undermined by any exemption, and the Commonwealth ha[d] not argued, much less shown, that religiously based exemptions, if granted, would exceed the exemptions for qualifying zoos and circuses.”³¹⁶ The court also observed that Pennsylvania “ha[d] not explained how circuses, whether nationally recognized or not, provide tangible benefits for animals living in the wild in Pennsylvania.”³¹⁷ The court thus placed the burden on the state to disprove that the secular exemptions and requested religious exemption would similarly undermine the purposes of the law.

b. Burdens in Theory

These cases highlight that the burden question is far from resolved, even after Tandon. Although many courts agree that religious claimants bear the burden to disprove neutrality and general applicability,³¹⁸ others seem to require the government to prove that religious and secular exemptions aren’t comparable.³¹⁹ The lingering uncertainty warrants a normative and doctrinal question: Who should bear the burden to show or disprove comparability?

To begin with a relatively uncontroversial point, the government should bear at least a limited explanatory burden. Once a claimant shows that a law limits a particular religious practice and has at least one secular exception, the government should need to explain the reasons for the law and why it can’t simply extend the exception to the claimant’s religious exercise. Lawmakers presumably know why their laws contain secular exceptions but not religious exceptions. And if they can’t explain, they shouldn’t object to simply granting claimants’ requests. In any event, religious observers shouldn’t need to guess at legislative goals. In Blackhawk, therefore, the Third Circuit was right to conclude that religious and secular exemptions similarly undermined Pennsylvania’s monetary interests to the extent “the Commonwealth ha[d] not argued . . . that religiously based exemptions, if granted, would exceed the exemptions for qualifying zoos and circuses.”³²⁰ It also was right to emphasize that the state “ha[d] not explained how circuses, whether nationally recognized or not, provide tangible benefits for animals living in the wild in Pennsylvania.”³²¹ If the State truly didn’t offer any reason for treating religious conduct differently, it failed to carry its explanatory burden.³²²

But once the government articulates its reasons, religious claimants should bear the evidentiary burden to disprove those explanations.³²³ As noted, a law can fail the general-applicability test under the Supreme Court’s recent interpretation if it contains a single secular exception, and even if there is no evidence of discriminatory intent.³²⁴ Nearly all laws include exceptions,³²⁵ so nearly all laws are susceptible to general applicability challenges.³²⁶ And as the Court recognized in Smith, we live in a “cosmopolitan nation made up of people of almost every conceivable religious preference,”³²⁷ so nearly all laws also have the potential to burden someone’s exercise of religion.³²⁸ Courts, in turn, are reluctant to scrutinize the sincerity of claimants’ professed religious beliefs.³²⁹ And once sincerity is established—or, more likely, assumed³³⁰—those “beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”³³¹ The result is that almost all laws are susceptible to free exercise challenges under the modern framework.³³²

Placing the evidentiary burden on claimants to prove comparability thus would avoid the concern the Court expressed in Smith when it adopted the general-applicability standard. As the Court cautioned, “we cannot afford the luxury of deeming [generally applicable laws] presumptively invalid,” forcing the government to track down evidence at the behest of observers of “every conceivable religious preference.”³³³ Requiring the government to disprove comparability would, in a similar sense, presume most laws aren’t generally applicable.³³⁴ Such a presumption would allow religious claims to slip through a window adjacent to the door the Court closed in Smith.³³⁵

Placing the burden on the government also would create a strange paradox. As the Court explained in Lukumi, a law fails the narrow-tailoring element of strict scrutiny when the government’s “proffered objectives are not pursued with respect to analogous nonreligious conduct.”³³⁶ Under Tandon, however, “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.”³³⁷ If the government must disprove comparability at the general-applicability stage, it essentially must satisfy strict scrutiny to avoid strict scrutiny.³³⁸ Requiring religious claimants to establish comparability would avoid this paradox. And although the government is unlikely ever to prevail at the strict scrutiny stage once a claimant shows comparability, this is exactly what the Supreme Court envisioned in Lukumi.³³⁹ Thus, the Third Circuit in Blackhawk was wrong to emphasize that Pennsylvania had not “shown” that the religious and secular activities in question weren’t analogous.³⁴⁰ It should have been enough for the state to explain the difference, at which point the claimant, to proceed, should have been required to prove otherwise.

The Supreme Court’s jurisprudence under the Equal Protection Clause also suggests that claimants should bear the burden to show comparability.³⁴¹ In important respects, assessing comparability for free-exercise purposes resembles the “similarly situated” analysis in selective-enforcement and rational-basis equal-protection cases.³⁴² First, the key questions are similar. A law is generally applicable for free-exercise purposes unless the exempt secular conduct is “comparable” to the proposed religious conduct.³⁴³ Likewise, a law treats classes or individuals equally for equal-protection purposes unless it effectively exempts other classes or individuals who are comparable to (i.e., “similarly situated” with) those it restricts.³⁴⁴ Second, benign-classification and selective-enforcement cases, like general-applicability cases, arise from facially neutral laws.³⁴⁵

In the equal-protection context, claimants bear the burden to prove comparability in such cases because there is reason to presume that the disparate effects of benign classifications and neutral laws stem from rational distinctions.³⁴⁶ Because nearly all laws classify,³⁴⁷ it would be infeasible to presume laws invalid by virtue of classification alone. And many laws can’t be enforced against all violators, much less at the same rate,³⁴⁸ so it would be infeasible to presume enforcements invalid by virtue of disparate treatment alone.³⁴⁹ Thus, in the equal-protection context, the government bears the burden to disprove comparability only when it classifies for presumptively invalid reasons.³⁵⁰ The government must prove, for example, that it has good reason to treat people differently based on race, since the Court has held that race presumptively isn’t a good reason to treat people differently.³⁵¹

In free-exercise cases, neutral laws that contain exemptions are closer to laws with benign classifications in the equal-protection context.³⁵² Because “[a]ll laws are selective to some extent,”³⁵³ courts also have good reason to presume that laws with secular exemptions remain generally applicable. After all, the Supreme Court in Smith suggested that most “civic obligations” are generally applicable despite including secular exceptions.³⁵⁴ In fact, the Court in Smith listed numerous laws with secular exceptions as examples of general applicability.³⁵⁵

The equal-protection cases also offer some insight into a workable analytical framework. Courts often analyze equal-protection claims under a burden-shifting test.³⁵⁶ In employment-discrimination cases, for example, a plaintiff must establish, as part of a prima facie case, that the employer took an adverse employment action.³⁵⁷ The burden then shifts to the employer to articulate—but not prove—that the action was taken for legitimate, nondiscriminatory reasons.³⁵⁸ If the employer provides such reasons, the burden shifts back to the employee to prove that those reasons are pretextual.³⁵⁹ The employee may do so by identifying a similarly situated coworker whom the employer treated more favorably.³⁶⁰

A version of this framework would be useful in free-exercise cases. The prima facie case would entail the claimant needing to show (1) a sincere religious belief, (2) that the law in question burdens the exercise of that belief, and (3) that the law exempts certain secular conduct. The burden would then shift to the government to articulate the purposes of the law and why the religious conduct would undermine any of those purposes more than the exempt secular conduct. The religious claimant would then need to prove that a religious exemption wouldn’t undermine those purposes any more than the exempt secular conduct. The claimant, as in the employment context, would need to establish that the secular and religious conduct would undermine the government’s asserted interests in a similar way (i.e., that the religious and secular groups are similarly situated).³⁶¹

The evidentiary burden on religious claimants according to this framework would be heavy. In many cases, claimants likely would be unable to produce evidence undermining the government’s reasons for treating religion differently. The point is, that’s consistent with the general-applicability doctrine. The general-applicability test resulted from the Court’s concern that too many “civic obligations” were susceptible to attack by individual religious believers.³⁶² This concern stemmed from the notion that the First Amendment doesn’t “make the professed doctrines of religious belief superior to the law of the land.”³⁶³ A burden-shifting framework familiar in the antidiscrimination context would help avoid this pitfall under the Court’s recent interpretation of general applicability.

To be sure, the analogy between free exercise and equal protection has limits. The Equal Protection Clause protects against discrimination, whereas the Free Exercise Clause protects the exercise of religion, generally.³⁶⁴ Justice Sandra Day O’Connor pointed this out in her concurrence in Smith, where she observed that “the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause.”³⁶⁵ After all, a law that treats everyone the same still can prohibit some people’s exercise of religion.³⁶⁶ For example, a complete ban on alcohol would be neutral and generally applicable, but it would, in a sense, still “prohibit[] the free exercise”³⁶⁷ of religious observers seeking to use sacramental wine.³⁶⁸ Some have argued that “it would be a mistake to conflate” the free-exercise analysis “with traditional equal protection doctrine.”³⁶⁹

Further, “[p]roof of racially discriminatory intent”—or another impermissible motive—”is required to show a violation of the Equal Protection Clause,”³⁷⁰ whereas discriminatory motive is unnecessary to disproving general applicability under the modern approach.³⁷¹ Determining whether people are similarly situated for equal-protection purposes is merely the first step in the process of discerning discriminatory intent.³⁷² In the free-exercise context, by contrast, the comparability analysis can be the only step in determining whether laws are generally applicable (i.e., whether they apply equally to religious and secular conduct).³⁷³

For better or worse, however, general applicability is the standard in free-exercise cases, and, as of Tandon, comparability between secular and religious conduct is the crucial test.³⁷⁴ Whether two entities are analogous thus is an element in free-exercise cases, just as it is an element in equal-protection cases. That comparability is a means in the latter (i.e., a step toward showing intentional discrimination) and an end in the former (i.e., evidence that religion is being treated differently) doesn’t matter for purposes of allocating the burdens. In that sense, the burden-shifting framework in equal-protection cases applies just as well in the free-exercise context. While it would be wrong to equate the goals of free exercise and equal protection, they are useful comparators to the extent they both incorporate a “similarly-situated” analysis. This accords with the view of the most-favored-nation theory that “[a] stringently interpreted general-applicability rule can be understood as implementing a nondiscrimination requirement in the face of complexity.”³⁷⁵ In assessing alleged comparators at the general-applicability stage, courts have good reason to look to equal-protection cases.

A better argument against presuming incomparability stems from solicitude for minority faiths. Underrepresented religions are less politically powerful than some secular interests, so when the government enacts laws, it may be more likely to accommodate well-represented secular groups than idiosyncratic religious ones.³⁷⁶ In such cases, the failure to include religious exceptions may be the result of inadvertence rather than considered judgment.³⁷⁷ Secular conduct may end up exempt, while religious conduct may not, because politically-powerful groups want exceptions for the secular conduct they value, not because secular exceptions would undermine their goals less than religious exceptions. This concern is especially salient when the religious conduct at issue is politically disfavored, such as animal sacrifice in Lukumi.³⁷⁸

Still, requiring the government to carry an explanatory burden would ameliorate these concerns. If there is no reason to treat religion differently, the government won’t be able to articulate legitimate reasons for omitting religious exceptions. This is apparently what happened in Blackhawk, where Pennsylvania didn’t even argue that religious exemptions would undermine its interests more than the secular exceptions to the permit requirement.³⁷⁹ There may be cases in which the government attempts to fabricate illegitimate reasons for declining religious exemptions,³⁸⁰ but if the omissions truly are inadvertent, this shouldn’t happen often. In any event, the fabricated reasons should be relatively easy for claimants to dispel at the evidentiary stage. Finally, to the extent the failure to include religious exceptions stems from discriminatory intent, disfavored religious groups would be more likely to find evidence undermining neutrality.³⁸¹ For these reasons, placing the evidentiary burden on religious claimants still makes most sense, given that nearly all laws include exceptions³⁸² and will inevitably infringe on some religious practices.³⁸³

In sum, although an evidentiary burden might be difficult for religious claimants to carry in many cases, that result is consistent with Smith. While Smith remains the law, the government can’t be required to provide evidentiary support for its legislative decisions at the behest of individual religious claimants who can show nothing more than that the laws in question, like nearly all laws, have exceptions.³⁸⁴ Once the government articulates the reasons for the secular exceptions and why those exceptions don’t apply to religion, religious claimants should bear the burden to prove that religious exemptions in fact would undermine those reasons no more than the exempt secular conduct. In that respect, modern general-applicability doctrine may be administrable through a burden-shifting framework similar to that used in equal-protection and employment-discrimination cases.³⁸⁵

2. Evidence

Allocating the burdens is only half the battle. Next, courts must weigh the evidence. Although this exercise depends on the facts of given cases, there are some threshold questions that arise routinely. One, numerosity, is a recurring issue that continues to divide courts.³⁸⁶ The second, uncertainty, is seldom discussed, but is becoming increasingly important.³⁸⁷

a. Evidence of Numerosity

In deciding whether religious exemptions would undermine governmental interests more than secular exceptions, courts are divided as to whether they may consider the number of potential exemptions in each category, or, by contrast, must consider the effect of only the specifically-requested religious exemption.³⁸⁸ In other words, is the question the effect of one religious exemption compared to one secular exemption? Or should courts compare the likely universe of religious exemptions to the likely universe of secular exemptions?

Justice Gorsuch would limit the inquiry to the government’s “interests as applied to the parties before” the court.³⁸⁹ In his view, “the relevant question [at the general applicability stage] involves a one-to-one comparison between the individual seeking a religious exemption and one benefiting from a secular exemption.”³⁹⁰ Some courts have endorsed this position. In U.S. Navy SEALs v. Biden,³⁹¹ for instance, a judge in the Northern District of Texas rejected the government’s justification that “there [were] only seven permanent medical exemptions” to its vaccine mandate, whereas “there [were] more than three thousand pending requests for a religious exemption.”³⁹² The court reasoned that “an influx of religious accommodation requests is not a valid reason to deny First Amendment rights.”³⁹³ In another vaccine case, Air Force Officer v. Austin,³⁹⁴ a district judge in Georgia reached a similar conclusion that “[t]he general applicability test doesn’t turn on a numbers game,” and that “[a]ll it takes is one.”³⁹⁵

The Second Circuit reached the opposite result in We The Patriots.³⁹⁶ It noted that the evidence “indicate[d] that medical exemptions [were] likely to be more limited in number than religious exemptions,” that “it [might] be feasible for healthcare entities to manage the COVID-19 risks posed by a small set of objectively defined and largely time-limited medical exemptions,” and that “it could pose a significant barrier to effective disease prevention to permit a much greater number of permanent religious exemptions.”³⁹⁷ The court thus expressed “doubt that, as an epidemiological matter, the number of people seeking exemptions is somehow excluded from the factors that the State must take into account.”³⁹⁸ Likewise, in Blackhawk, the Third Circuit considered whether additional religious exemptions resembling the claimant’s request “would exceed the exemptions for qualifying zoos and circuses.”³⁹⁹

No matter which side is right as a constitutional matter, there’s no denying that numbers are relevant to the government’s interests in some cases.⁴⁰⁰ If the government enacts laws to prevent the spread of a virus or earn money, the number of people exempt from those laws directly affects the relevant goals.⁴⁰¹ While a single religious exemption might undermine those goals to the same extent as a single secular exemption, the legislature obviously isn’t so limited in deciding which exceptions to write into the rules and which to leave out. And granting a religious exemption to one claimant on free-exercise grounds may create a precedent requiring similar exemptions for similar claimants.⁴⁰²

Even so, the Supreme Court has hinted at endorsement of a view similar to the position in the Texas vaccine cases. For example, it said in Fulton that religious and secular acts are comparable if they “undermine[] the government’s asserted interests in a similar way.”⁴⁰³ It didn’t say secular acts are comparable if they undermine the government’s asserted interest to a similar degree, in which case the number of likely exemptions would seem more relevant. And in Tandon, the Court considered the risks of allowing the specific “applicants’ proposed religious exercise at home.”⁴⁰⁴

As discussed, Justice Gorsuch has provided the clearest endorsement of this position, albeit in dissent, arguing that “the estimated number of those who might seek different exemptions is relevant,” if at all, only during “the application of strict scrutiny.”⁴⁰⁵ In his view, the “general applicability test doesn’t turn on that kind of numbers game.”⁴⁰⁶ He would, as noted, apply “a one-to-one comparison between the individual seeking a religious exemption and one benefiting from a secular exemption.”⁴⁰⁷

But Justice Gorsuch’s refusal to consider the numbers is more familiar in the context of strict scrutiny than it is at the general applicability-stage. Under RFRA and its counterpart, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the Court has “require[d] the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.”⁴⁰⁸ At that stage, the Court has “scrutiniz[ed] the asserted harm of granting specific exemptions to particular religious claimants” and “look[ed] to the marginal interest in enforcing the challenged government action in that particular context.”⁴⁰⁹ The Court also has rejected the purportedly “compelling interest” that allowing a single religious exemption would invite more religious-exemption requests.⁴¹⁰ In Fulton, the Court incorporated this requirement into the compelling-interest test under the Free Exercise Clause.⁴¹¹ In deeming the application of Philadelphia’s antidiscrimination law unconstitutional, it held that the question was “not whether the City ha[d] a compelling interest in enforcing its non-discrimination policies generally, but whether it ha[d] such an interest in denying an exception to [the religious claimant].”⁴¹²

Of course, the compelling-interest test takes place only after the court determines that the law in question isn’t neutral and generally applicable.⁴¹³ Only then does the government need to prove that it has a compelling interest in refusing the specific exemption the religious claimant seeks.⁴¹⁴ By contrast, the general-applicability test under Smith and Lukumi seems to call for a comparison of the categories of conduct the law covers and the categories it exempts.⁴¹⁵ In Lukumi, for instance, the Court emphasized that the “categories of selection are of paramount concern.”⁴¹⁶ In other words, a law is generally applicable if a categorical religious exemption would undermine its purposes more than the categorical secular exemption it already includes.

The vaccine mandate cases are a perfect example. The states in those cases asserted that granting large numbers of religious exemptions would undermine the purposes of the mandates substantially more than granting a small number of medical exemptions.⁴¹⁷ That is, exempting numerous religious observers, in clustered areas, would cause the virus to spread more rapidly and widely than granting discrete medical exemptions.⁴¹⁸ These concerns may be precisely why some states decline to include religious exemptions in immunization mandates. As the Second Circuit noted in We The Patriots, it would be odd if “the number of people seeking exemptions [were] somehow excluded from the factors that the State must take into account in assessing the relative risks . . . .”⁴¹⁹ The vaccine mandate in that case was generally applicable because exempting the small category of people with medical needs was likely to undermine its goals less than exempting the large category of potential religious applicants.⁴²⁰

Still, by focusing on the religious exercise of the applicants, Tandon indicated that the categorical interpretation is at least limited to the type of religious conduct for which the specific claimants seek an exemption.⁴²¹ This stems from the simple idea that different religious practices affect governmental interests to different extents. A religious claimant seeking an exemption to use a hallucinogenic drug for a limited, private ceremony differs from a religious claimant seeking to use a hallucinogenic drug while driving a school bus. If the private-use claimant seeks an exemption, that person should need to demonstrate only that the number of other people seeking to use the drug for such ceremonies wouldn’t undermine the purposes of the ban more than an existing secular exception. The claimant wouldn’t need to introduce evidence of the number of people seeking exemptions for religious uses that would more severely undermine state interests, such as people seeking to use hallucinogens in public spaces. This means that a law with a secular exception might remain generally applicable despite prohibiting some forms of religious exercise but not others. This approach best accords with Tandon’s focus on the “applicants’ proposed religious exercise.”⁴²²

Ultimately, Smith, Lukumi, and Tandon suggest that, in cases where numbers are relevant, the key figure is how many people would seek to engage in the same sort of religious conduct as that proposed by the specific claimants before the court.⁴²³ These categories are defined by the extent to which the specific claimants’ religious activities would undermine the government’s interests.

b. Evidence of Uncertainty

One more category of evidence, similar in a sense to numerosity, is “uncertainty.” This category reflects how religious beliefs often are unpredictable, subjective, and diverse.⁴²⁴ Religious exemptions therefore may be harder to grant, manage, and police. Such practical barriers to accommodating religion don’t necessarily arise with respect to otherwise similar secular conduct. This isn’t to say religious conduct is less worthy of exemption than secular conduct—again, a conclusion the most-favored-nation theory forbids⁴²⁵—but merely that, as a practical matter, some religious conduct is more difficult to exempt than secular conduct that otherwise would be comparable.

Consider the vaccine mandate cases. If a state exempts anyone who can provide a doctor’s note, it has an easy enforcement mechanism.⁴²⁶ People can’t get the medical exemption without a physician attesting to the requisite circumstances.⁴²⁷ The exemption therefore is easy to limit, no matter the lengths to which people would go to avoid compliance. Although the state can require people to affirm the sincerity of their beliefs,⁴²⁸ such beliefs, unlike medical evidence, are subjective.⁴²⁹ There are no readily administrable objective tests to separate people seeking the exemption for genuine religious reasons from those with ulterior motives.⁴³⁰ This isn’t to say that people claiming sincere religious beliefs are more likely to fabricate claims than people claiming medical need. Rather it assumes that false medical and religious claims would be just as likely, all else being equal.⁴³¹ It simply means medical need is susceptible to objective proof, whereas religious beliefs necessarily aren’t.⁴³² Insincere claimants would have an easier path to deception via fabricated religious claims than fabricated medical claims.

The administrative uncertainty that attends religious exemptions is especially pronounced in cases where the requested exemptions are desirable for nonreligious reasons. For example, many people likely didn’t (and don’t) want to comply with COVID-19 vaccine and mask mandates, completely irrespective of religion.⁴³³ In such cases, the likelihood of false claims naturally rises.⁴³⁴ If the number of exemptions would be relevant to the interest behind the laws in question, the importance of objectivity rises as well. A state might have good reason to limit exemptions to cases where applicants can provide proof of need beyond their own assertions. Again, this isn’t to say the religious reason for a given exemption is less important than a secular reason; it merely means a secular exception requiring objective evidence might undermine a law’s purposes less than a subjective religious exemption susceptible to false claims.

The upshot is that potential uncertainty and administrative costs very well may be relevant at the general applicability stage, and courts shouldn’t ignore those concerns. If the government declines a religious exemption in part because, unlike a secular exception, it would create unique public uncertainty or be difficult to administer or enforce, courts should consider such assertions and require religious claimants to produce contrary evidence.

Once these threshold questions are resolved, courts must undertake the similarly daunting task of making the actual comparisons. Many more questions will arise during that inquiry, such as when two entities are comparable enough, despite marginal, relevant differences.⁴³⁵ It is easy to imagine a challenging case where a religious exemption to a vaccine mandate would result in a negligibly higher transmission risk than a medical exemption. Assuming the court is willing to consider aggregates—as this Part has urged—a medical exception that would result in ten unvaccinated people might undermine the mandate’s purpose differently from a religious exemption sought by 1,000, but might undermine that purpose “in a similar way” to a religious exemption sought by fifteen. Such tricky questions would arise on the margins, but they are well within the province of courts and factfinders. Difficult line-drawing is sometimes necessary, but the occasional difficult case isn’t a good reason to reject a test outright. Purely doctrinal considerations such as whether to consider numerosity and uncertainty are less familiar to courts, but no less important. For the reasons discussed, both should be fair game.

C. Comparing Religious and Secular Activities

So, how should courts compare religious and secular activities? To bring the issue full circle, consider a case like Smith.⁴³⁶ Imagine that a state—like Oregon in 1990—has a controlled substances law that prohibits peyote use except when prescribed by a doctor. Religious claimants seeking to use peyote for sacramental purposes sue under the Free Exercise Clause requesting a religious exemption. First, the claimants must show that they would use peyote for sincere religious reasons—in other words, that the controlled substances law burdens their religious exercise.⁴³⁷ Then they must show that the law isn’t neutral and generally applicable vis-à-vis religion.⁴³⁸ They can contest general applicability, under Tandon, by pointing out that the controlled substances law exempts people with a medical prescription.⁴³⁹ This essentially puts the question to the state: Is there a difference between the impact of the medical and proposed religious exemptions, as judged against the purposes of the controlled substances law? If not, the law isn’t generally applicable.

The state then must carry an explanatory burden. It must articulate legitimate reasons for prohibiting sacramental use that don’t apply equally to medical use. It could point to concerns, for example, that medical use is less likely than religious use to lead to peyote abuse and illegal trafficking; that medical use is safer because it is typically controlled and monitored; or that religious use would be relatively difficult to regulate, perhaps in light of the number of prospective religious users.

What the state can’t do, under Tandon and the most-favored-nation interpretation, is rely on the reasons for the medical exception itself. That is, the state can’t say that the medical exception is more important than the requested religious exemption because some people would face serious health risks without using controlled substances. Such reasoning would implicitly compare the medical and religious consequences of prohibiting peyote use, which, as discussed, is precisely the sort of value-judgment the most-favored-nation interpretation rejects.⁴⁴⁰

Assuming the state articulates at least one legitimate reason to deny the religious exemption that wouldn’t also apply to the medical exception, the burden shifts to the religious claimants to disprove the state’s explanation.⁴⁴¹ The claimants must introduce evidence that sacramental peyote use wouldn’t cause the identified problems more than medical use. If the state’s rationale is that medical uses are less likely to lead to peyote abuse than religious uses, the claimants could point to evidence of abuse stemming from medical uses.⁴⁴² If the state’s articulated rationale reflects concerns about potential diversion of peyote into the recreational market, the claimants could introduce evidence that prescription peyote also results in such diversion,⁴⁴³ or that religious uses haven’t resulted in diversion when permitted in the past.⁴⁴⁴ If the state explains that people would fabricate religious claims to obtain peyote, the claimants could introduce evidence that recreational use of peyote would be rare,⁴⁴⁵ and thus that the universe of potential insincere claimants would be negligible.

None of this is to say the ultimate evidentiary evaluation will be easy. And even if the claimants fail to muster any evidence in the peyote context, there’s no doubt that such evaluations will be difficult in other free exercise cases. But evaluating evidence is familiar terrain for courts and juries. The crucial inquiry is where to begin. When a religious observer requests an exemption, the court and parties need to know who is responsible for going out and tracking down the evidence. And they need to know what evidence is relevant.

Conclusion

Religious exemptions always have been controversial.⁴⁴⁶ The COVID-19 distancing, vaccine, and mask mandate cases brought this controversy back into both legal and popular discourse.⁴⁴⁷ The problem is that the Supreme Court’s most recent statement of the general-applicability standard left many questions unanswered.⁴⁴⁸ Under the newly-endorsed, most-favored-nation approach, the crucial question is whether religious and secular activities are “comparable.”⁴⁴⁹ Comparability turns on how the competing activities affect governmental interests.⁴⁵⁰ But the Supreme Court hasn’t said how to determine whether religious and secular conduct would have similar effects, who bears the burden to show or disprove comparability, or what evidence is relevant to that inquiry. Commentators have since lamented these practical dilemmas.⁴⁵¹ Courts, in turn, have used the uncertainty surrounding these “how” questions to subtly manipulate the procedural levers in free exercise cases.⁴⁵² Despite calls to overrule Employment Division v. Smith in 2021, it didn’t happen.⁴⁵³ Instead, the Supreme Court articulated a new substantive standard.⁴⁵⁴ Now, the “how” questions need answers.

This Article attempts to engage with some of these issues. If a religious claimant can establish a burden on religious exercise and identify a secular exception, the courts first must identify the government’s “asserted” interests. It doesn’t matter how broad these interests are, how numerous, or when the government first articulates them, so long as the interests are legitimate. The government then should bear the burden to articulate why accommodating religious conduct would undermine its asserted interests more than the already-exempt secular conduct. If the government does so, religious claimants should bear the evidentiary burden to show that religious accommodations would in fact detract from those interests no more than the exempt secular conduct. In relevant cases, claimants would need to demonstrate that the entire category of similar religious exemptions wouldn’t undermine the government’s interests more than the entire category of secular exemptions, and that the category of religious exemptions wouldn’t create unique numerosity or uncertainty problems.

For as long as general applicability remains the threshold test, courts must stay faithful to its purpose. That means they can’t foist an evidentiary burden on the government whenever individual religious claimants seek exemptions from neutral laws that happen to accommodate limited categories of secular conduct. We live in a “cosmopolitan nation made up of people of almost every conceivable religious preference,”⁴⁵⁵ and “[n]early all laws have exceptions.”⁴⁵⁶ Smith said “we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.”⁴⁵⁷ Likewise, courts shouldn’t presume that religious and secular activities are “comparable,” when doing so would invite religious objections to “civic obligations of almost every conceivable kind.”⁴⁵⁸

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Religious and Secular Comparators

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