Few are likely to remember the year 2020 with much fondness. Within the church-state arena, however, the year 2020 has given rise to an unexpected windfall of legal victories—at least for religious conservatives.
Even as many realms of life were put on pause or otherwise restricted in response to the global pandemic, U.S. courts were kicked into high gear as they began to contend with a slew of COVID-related free exercise claims from religious communities across the nation. These claims have taken aim at the various measures adopted by state and local governments to curb the spread of the virus—measures such as a California policy that placed stricter capacity restrictions on houses of worship than it did on grocery stores, or a Nevada policy that did the same with casinos. These cases have forced judges to contend with a set of legal questions that are of paramount importance to religious conservatives and, on the whole, U.S. courts have settled these questions very much in conservatives’ favor. However, the wrap-up of the U.S. Supreme Court’s 2021 term reveals that the legal victories of the COVID-19 era may have come at a price for those very same conservatives.
To understand how COVID-19 has created both a boon and a problem for religious conservatives, it is important to understand a few things about the legal landscape leading up to the year 2020. As I have explained elsewhere, the past few decades have been a time of instability where the Constitution’s religion clauses are concerned, particularly the clause safeguarding the free exercise of religion. This instability has sown confusion about what specific kinds of actions are, and are not, protected by the free exercise clause. Does the free exercise clause protect the use of an illegal drug if done so within a religious context? Does it protect a business owner’s refusal to serve people of a particular sexual orientation or gender identity? Does it protect an individual’s decision to forego a publicly beneficial vaccine?
Such questions would be easy to answer if the right to religious free exercise were absolute, but that is far from the case; U.S. courts have always placed limits on the free exercise of religion. In fact, cases involving the free exercise clause largely consist of debates over the scope of such limits and the question of whether a particular religious practice exceeds them. Nearly 60 years ago, the U.S. Supreme Court devised a “test” to translate the somewhat vague language of the free exercise clause into a more concrete mechanism of adjudication. The so-called “Sherbert test” (named after the 1963 case in which the Court formulated this mechanism) limits the right to free exercise in the following way: a claimant must demonstrate that their exercise of religion is sincere and that it is being substantially burdened by some government policy. Then, even if a claimant can prove these two things, they will lose their case if the government can show that it had a compelling reason for having created its policy, and that there was not some less restrictive way in which it could have accomplished its goal.
In the case of a complaint about a particular COVID-19 policy, the Sherbert test would require a claimant to show precisely how the policy in question makes it difficult or impossible to engage in a religious activity that they feel sincerely obliged to perform. Once the claimant proves this burden, the government must demonstrate not only that it had an exceedingly good reason for having created the policy, but also that the work of combatting COVID-19 couldn’t have been done in a way that would be less restrictive toward that religious activity.
Thus, the Sherbert test places limits on the free exercise of religion, but it also places a set of limits on the government. When a court asks a government entity to prove that it has a compelling reason for creating a policy and that it is the least restrictive way to accomplish its goal, it means business: It is subjecting the government to its highest level of scrutiny, otherwise known as “strict scrutiny.” If the government fails to pass this high bar, the win goes to the religious claimant. It is for this reason that the Sherbert test is generally understood to be quite generous toward religious claimants, notwithstanding the limitations it puts on certain religious actions.
In 1990, however, the Sherbert test was significantly transformed by the U.S. Supreme Court in a landmark case called Employment Division of Oregon vs. Smith. Because of this case, in many situations today the government isn’t subject to strict scrutiny at all: As long as it can show that a given policy was designed to apply neutrally to all citizens and relevant contexts—that it is “neutral and generally applicable”—the policy is upheld whether or not it burdens a claimant’s sincere exercise of religion.
It should come as no surprise that the less generous approach inaugurated by the Court in Smith has been met with strenuous opposition from religious conservatives. The Court has repeatedly been asked to overturn this decision. Though it has so far refused to do this, the emergence of COVID-19 has forced the Court to wrestle with the basic mechanics of Smith in a way that has proven beneficial to religious claimants. The Court’s recent COVID-19 cases have laid out a clear path whereby religious claimants can sidestep the restrictive precedent of Smith and gain access to the more generous precedent of Sherbert.
Though the Court had already lain some of the groundwork for making this move prior to the year 2020, the pandemic has presented an almost perfect opportunity to disrupt the mechanics of Smith and reactivate the more religion-friendly Sherbert test. To understand how, it’s important to recognize that the various restrictions that state and local governments have created to prevent the spread of COVID-19 are, arguably, not “neutral.” (Recall that the neutrality of a government policy is the key to placing a case within the Smith framework rather than the more religion-friendly Sherbert framework.) According to one way of thinking, COVID-19 restrictions are not neutral because, by their very nature, they are designed to enable government agents to be responsive to such things as local contexts, ever-shifting threat levels, and particular physical dynamics within different communal venues.
For example, New York City’s COVID-19 policy—which gave rise to one of this term’s most high-profile COVID-19 decisions—functioned by breaking the city into fluctuating “zones” based on localized case numbers, thus placing the power to both categorize and regulate communal venues—including houses of worship—directly into the hands of government officials. Such COVID-19 restrictions are designed to be flexible and responsive to a variety of factors, and, as such, they entail numerous discretionary elements that must be crafted by policymakers. However, such discretionary elements undermine the neutrality of these policies, thus requiring U.S. courts to subject the government to the strictest level of scrutiny when there are any restrictions placed on religious activities. This, in any case, is how one segment of the Supreme Court sees things. As the Court’s majority put it in its most recent COVID-19 decision, “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.”
However, there is more than one way to think about “neutrality” in the context of COVID-19 restrictions. After all, even if COVID-19 restrictions are not neutral in the sweeping way of, say, certain controlled substance laws (which prohibit everyone’s use of particular drugs), they can still be understood to be neutral insofar as they treat similar communal venues equally.
For example, numerous state COVID-19 policies have categorized houses of worship in the same way that they categorize movie theaters due to the fact that both venues involve prolonged proximity to others. Though such a categorization is unquestionably based on a judgment call from policy makers, this call hinges on the fact that these two venues are similar in terms of their physical dynamics. The decision to place grocery stores in a different, less restrictive category isn’t a product of favoritism; it is a product of the fact that grocery stores and houses of worship simply aren’t comparable venues in terms of what people do inside them. Within this line of thinking, as long as religious venues are subject to the same restrictions as comparable secular venues, they are in fact being subject to a government policy that is “neutral.” And if it’s neutral, then, by the logic of Smith, it is constitutional. This is how the Court’s more liberal justices see things.
This tension between the Court’s differing views of neutrality surfaced as soon as the justices began delving into the question of COVID-19 restrictions, but the September 2020 death of Ruth Bader Ginsburg created a key turning point in this debate. Almost immediately following the confirmation of Amy Coney Barrett to replace Ginsburg, the Court granted a series of emergency requests for relief that engaged the question of whether particular COVID-19 restrictions violate the free exercise of religion (prior to Ginsburg’s death, the Court did not have a sufficient number of members willing to take on these cases). Such emergency requests are not subject to the same extensive adjudication as typical legal cases, but this hasn’t stopped the Court from weighing in on some of the basic, deeply contested mechanics of the free exercise clause. In emergency cases like this, the Court sets legal precedent in much the same way as when it issues a fully adjudicated decision.
In all of these recent COVID-19 decisions, the Court’s majority has adopted the first understanding of neutrality—the one held by its conservative justices. In short, whenever a COVID-19 policy distinguishes between different communal settings, it is failing to be neutral and thus must be subject to the strictest level of judicial scrutiny. Though decisions involving emergency requests are attributed to the entire Court rather than to individual justices, the Court’s most liberal members—Sonia Sotomayor, Elena Kagan, and Steven Breyer—have penned multiple dissents in these cases revealing their commitment to the second understanding of neutrality. As Kagan put it in one such dissent, the majority’s insistence on comparing religious activities to any secular activities, rather than just the ones that entail similar physical dynamics, amounts to requiring the government to “equally treat apples and watermelons.”
It is important to recognize that these recent decisions reach beyond the specific arena of COVID-19 restrictions. Because most government policies contain at least a few discretionary elements, the Court’s recent COVID-19 decisions have set the scene for almost any government policy to be identified as not neutral and generally applicable, effectively opening the door of the Sherbert framework to any claimant as long as they can point to even one discretionary element in the policy they’re contesting. The practical effect of this is to significantly reduce the reach of the Smith decision without actually overturning it. The magnitude of this move has led some commentators to describe the Court’s most recent COVID-19 opinion as “the most important free exercise decision since 1990,” the year Smith was handed down.
There is little question that this Smith-avoiding maneuver currently works to the advantage of religious conservatives. Over the past few decades, such conservatives have built an entire legal advocacy industry geared toward dismantling legal precedents, like the Smith decision, that limit the exercise of (some forms of) religion. However, the Court’s willingness to seek out discretionary elements in a given policy as grounds for activating a Sherbert analysis has its drawbacks. In fact, last month’s Fulton vs. Pennsylvania decision provided a striking example of just such a drawback for religious conservatives. In Fulton, Chief Justice Roberts managed to pull together a surprising unanimous ruling that enshrined a Catholic adoption agency’s right to refuse to place children with same-sex married couples. As the Court navigated this case, it was once again repeatedly encouraged to overturn its Smith decision, but the Court’s somewhat motley majority was able sidestep Smith by focusing on a particular discretionary element within the contested government policy. As Roberts put it, “This case falls outside Smith because the City has burdened the religious exercise of [the Catholic adoption agency] through policies that did not meet the requirement of being neutral and generally applicable.”
Even as they agreed with the Court’s holding in favor of the Catholic adoption agency, Samuel Alito and Neil Gorsuch penned two angry concurrences, both joined by Clarence Thomas, criticizing their colleagues for using the discretionary element in the Fulton policy as a way to avoid a direct confrontation with Smith. Because these justices believe that Smith should be officially overturned, the majority’s maneuver stymied what they perceived as one of the central mandates of this case. The irony here is striking: The Smith-avoiding path opened up by the Court’s recent COVID-19 cases ultimately served as a mechanism for preserving Smith—at least for now.
This past winter and spring, even as COVID-19 raged across the U.S., religious groups were defended by both the Trump Administration and the U.S. Supreme Court in their efforts to avoid some of the more stringent restrictions that state and local governments were placing on communal venues. The first line of legal defense for these claimants turned out to be the argument that COVID-19 policies are by definition not “neutral and generally applicable,” and thus must be subject to the strictest level of judicial scrutiny. This is a legal development with free exercise implications that reach beyond the COVID-19 context. On the whole, this development has been a windfall for religious conservatives, though it is a windfall that comes at a price: If the Court has devised a way to sidestep the Smith decision, it may never muster the numbers to do what many such conservatives actually want of the Court, which is not merely to sidestep Smith but to officially overturn it.
Jenna Reinbold is as associate professor of religion at Colgate University.