How the pandemic changed free exercise forever

In the future, legal scholars could point to the pandemic era as the end of limits on the free exercise clause

This article was first published in the State of Faith newsletter. Sign up to receive the newsletter in your inbox each Monday night.

In April 1990, the Supreme Court issued one of the most significant religious freedom rulings in its history, deciding the First Amendment’s free exercise clause does not protect faith groups from neutral, generally applicable laws.

“Smith,” as that ruling is often called, gave the government the upper hand in religious freedom conflict. So long as officials could show a law didn’t single out a faith group for mistreatment or limit only religious activities, they typically enjoyed the legal system’s support.

From the beginning, the court’s interpretation of the free exercise clause was controversial. Enough members of Congress were mad about it that they worked together to pass the bipartisan Religious Freedom Restoration Act, which keeps the federal government from limiting religious rights except in cases where it has no other, less restrictive way to achieve its important goals.

However, because the religious freedom law does not apply to state or local policies, it can’t address all Smith-related concerns. Faith groups and law firms have spent years fighting for the Supreme Court to adjust its interpretation of the free exercise clause and thereby make it harder for officials at all levels to interfere with religious rights.

In April, almost exactly 31 years after the Smith decision was handed down, these advocates seemed to get their wish. In an opinion that granted churches relief from California’s pandemic-related gathering rules, the court set the bar that a law must clear to be considered neutral and generally applicable much higher than it was in the past.

“Government regulations are not neutral and generally applicable ... whenever they treat any comparable secular activity more favorable than religious exercise,” justices wrote in Tandon v. Newsom.

Previously, most courts had taken Smith to mean that religious exemptions only rarely needed to be granted. Judges allowed the government to deny faith groups’ requests unless those groups proved someone else was already getting essentially the exact accommodation they wanted.

After Tandon, religious individuals and organizations shouldn’t have to work as hard to make a successful religious exercise claim. Judges may interpret the decision to mean that any secular exception, even if it’s not really comparable to the religious one requested, violates Smith’s “neutral and generally applicable” standard, as two legal scholars recently wrote in USA Today.

However, few religious freedom experts believe battles over Smith are over, especially since Tandon was not a traditional ruling. That case wasn’t argued before the court and the opinion was unsigned. Although the justices didn’t limit its application, they also haven’t yet reiterated their new ideas about Smith in a more formal way.

But that could change in the very near future when the court rules on its biggest religious freedom case this term. In Fulton v. Philadelphia, which pits a Catholic foster care agency against city officials, justices have been asked to entirely overturn Smith and further strengthen the free exercise clause.

In light of the Tandon decision, it seems there will be enough votes for the court to, at the very least, affirm that Smith only rarely applies, religious freedom experts told me.

In the future, legal scholars could point to the pandemic era as the end of limits on the free exercise clause.

Fresh off the press

The American Enterprise Institute hosted a discussion last week on a new book exploring the rise of secularism within the United States. I watched the event and then wrote about how America’s so-called “secular surge” could disrupt the world of politics.

Term of the week: Shadow docket

The Tandon v. Newsom decision I described above is called a “shadow docket” ruling because it didn’t come about through the court’s standard procedures. In other words, the justices did not hear oral arguments in the case and not much time passed between the request for intervention and the court’s ruling.

Shadow docket decisions are controversial because, in some cases, they alter established legal precedent with little explanation. Justices don’t even need to say which way they voted. These rulings have become more common in recent years as more and more policymakers and organizations seek emergency intervention.

What I’m reading...

In case you missed it, the Supreme Court has agreed to hear a case next term that could dramatically redefine abortion rights. The decision comes at the same time that many state legislatures are passing laws limiting the availability of abortions. According to The New York Times, some liberal abortion rights activists are frustrated that President Joe Biden has said little about these developments. “What we really need is for President Biden to be a bold and transformational leader on abortion right now,” said one activist to the Times.

The recent violence in Israel and the occupied Palestinian territories has disrupted the work of peace organizations in the United States, NPR recently reported. Muslims and Jews who once bonded over a shared interest in improving conditions in the Middle East are now struggling to find common ground.

In late April, Biden released his American Families Plan, an ambitious proposal that aims to help caregivers and working parents, in addition to addressing a wide variety of other family related concerns. Rachel Anderson, a family policy expert, discussed what Christians should know about Biden’s plan on a recent episode of Christianity Today’s “Quick to Listen” podcast.

Odds and ends

A new analysis from Pew Research Center shows that religiously affiliated Americans are less supportive of marijuana legalization than unaffiliated ones. If you read my recent story on pastors and pot, Pew’s findings shouldn’t be much of a surprise.

Brookings is hosting a virtual event on June 10 that will explore how faith leaders can help heal an increasingly divided country. Speakers include Melissa Rogers, who leads the Biden administration’s White House Office of Faith-based and Neighborhood Partnerships.