April 15, 2021
California’s attempts to regulate worship during the pandemic have consistently been turned back by the U.S. Supreme Court for failing to ensure equal treatment of religious and other activities.
Last Friday, April 9, the court issued an injunction preventing California from enforcing a regulation that limits religious gatherings in homes to three households until the court can fully consider a challenge to the regulation. The unsigned opinion reflecting the majority’s approach outlined the principles that federal courts should use in deciding similar cases:
- Government regulations are presumed unconstitutional when “they treat any comparable secular activity more favorably than religious exercise.”
- “Comparability is concerned with the risks various activities pose, not the reasons why people gather.”
- “Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied.”
The court concluded: “California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.”
A dissent by Justice Elena Kagan (joined by Justices Stephen Breyer and Sonia Sotomayor) argued that the law actually did treat home religious worship the same as other home gatherings, which were also limited to three households.
Once again, the crucial consideration in this case, as with earlier religious freedom decisions, has been whether religious activities were treated the same as other activities. For the majority they were not but were rather disfavored, and this violated the constitutional guarantee of free exercise of religion. For the dissenters who joined Kagan’s opinion, the treatment of home worship was similar enough to the way the state regulated other nonreligious home gatherings and so was not unconstitutional.
The equal treatment paradigm probably resonates with most people because it strikes us as obviously wrong to treat similar actions dissimilarly.
On reflection, though, it is somewhat strange to imagine that the upper limit of a fundamental right enumerated in the Constitution is whether that right is treated the same as activities which are not fundamental rights.
Imagine that the principle of equal treatment were to be adopted as the sole requirement of other First Amendment rights.
Would a state regulation prohibiting a March for Life be constitutional if the same regulation also prohibited a pro-abortion demonstration?
Would a law prohibiting publications supporting Democratic candidates be OK if that law also prohibited publications supporting Republicans?
These analogies are actually not entirely on point when looking at the equal treatment of religious versus secular activities because they involve two fundamental rights compared to one another. Perhaps a more apt comparison would be to a ruling that prohibiting child pornography (clearly not a fundamental right) would justify prohibiting publication of a newspaper.
So, why do the recent religious freedom cases rely so heavily on the question of equal treatment? There are three possible answers.
First, the current Supreme Court interpretation of the First Amendment’s protection of religious exercise actually calls for this approach. It says that governments can limit religious practices as long as the same practices are limited for people who would pursue them for nonreligious reasons (i.e., if the military says no soldier can have a head covering, then prohibiting Jewish soldiers from wearing a yarmulke is permissible).
Second, unequal treatment is an obvious violation of religious freedom, so once we find evidence of that inequality, there is no need for the courts to inquire further into whether a government action violates the Constitution. Here, equal treatment could be the “floor” for protection of religious exercise.
Third, the equal treatment rule allows courts to redress manifest injustices in government treatment of religious exercise without limiting government power very much. In other words, if equal treatment is the “ceiling” for constitutional protection of religious exercise, the government can still pursue many of its aims – with very little risk that doing so will trouble citizens who believe people of faith are seeking preferential treatment when they ask for religious freedom protections.
All of this leads to an important observation. The Supreme Court’s current approach to interpreting constitutional protection of religious freedom is in tension with the way it treats other fundamental rights.
A law saying that certain types of speech can be curbed by government would not be reviewed by the courts to examine whether similar activities to the proscribed speech are also limited.
Rather, the court would assume that the government was overstepping by legislating to limit an enumerated right and would only allow the regulation to stand if the government could show that it had a compelling reason for the restriction (the famous example is that the government could punish someone for shouting “fire” in a crowded theater). Even then, the government would be required to show that there was not a narrower way to advance its critical purpose while limiting as little protected speech as possible.
The Supreme Court has been asked to determine whether the equal treatment approach really is a floor for government restrictions on religious exercise, or whether that approach is the ceiling for the constitutional protection of religious exercise. If the court accepts that invitation and finds that, indeed, religious exercise must be protected as an intrinsically important right – not just a human activity that must be treated similar to others – then the question of equal treatment will only be the first question the courts will ask about a regulation of religious practice.
Unequal treatment will be decisive evidence of a constitutional violation, but equal treatment will not guarantee that the government is not overstepping its constitutional limits. Rather, the government will need to show that it has essentially no other choice, consistent with overriding concerns for public health and safety, to limit religious practice.
In aligning its approach to free exercise claims with its approach to other fundamental rights, the court will give government entities clear guidance, will protect religious minorities whose practices may be unfamiliar or unpopular, and will dissipate a sense of unfairness surrounding current laws that affect religious freedom.
A recent news story pointed out that President Joe Biden has begun his administration with a strong record for getting new federal judges confirmed. Since taking office, he has managed to secure the confirmation of eight federal judges, more than any president since Richard Nixon.
With vision, leadership and sufficient efforts on the ground, we can muster the political will to plant “the Utah way” in the hearts and minds of future generations.
So if a destructive CRT ban is at best a partial policy solution – which may ultimately prove ineffective – what are the alternative (or perhaps additional) policy options that leaders should consider?