Pandora’s Box Of Religious Exemptions

Note, Pandora’s Box of Religious Exemptions, 136 Harv. L. Rev. 1178 (2023):

In 2021, the Satanic Temple filed suit in federal court challenging Texas’s abortion bans on grounds of religious liberty. Thanks to the Supreme Court’s recent free exercise decisions, federal courts must now embark on the difficult task of deciphering the Court’s new jurisprudence and whether the First Amendment indeed protects such claims. Through its shadow docket and Fulton v. City of Philadelphia [141 S. Ct. 1868 (2021)], the Supreme Court has essentially adopted the test that had once been percolating among the lower courts — the most-], the Supreme Court has essentially adopted the test that had once been percolating among the lower courts — the most-favored-nation theory of free exercise. In doing so, the Court has signaled a radical shift in its religious exemption doctrine.

This Note argues, however, that the Supreme Court’s adoption of the most-favored-nation doctrine was both haphazard and sloppy, leaving lower courts with little meaningful guidance on how to evaluate the constitutionality of laws burdening religion.

The lack of clarity over how to apply this doctrine means that clever litigants can and will weaponize religious exemption claims against unpopular laws and regulations. And such claims will be legitimized by sympathetic federal courts. This Note focuses on these recent cases to illustrate the potentially chaotic outcomes of religious exemption litigation. After identifying these problems, this Note proposes a new test that seeks to capture the competing concerns posed by religious exemption claims — one that draws upon the principles underlying the First Amendment’s free speech jurisprudence.

Part I introduces the most-favored-nation theory of religious exemptions and examines how the Supreme Court’s recent decisions have adopted this doctrine. Part II highlights the problematic implications of these decisions. Part III introduces other free exercise principles and explains how these will interact with the Court’s new religious exemption doctrine to open a Pandora’s box of religious exemption claims. Part IV proposes new ways to read the Supreme Court’s recent decisions, drawing upon the principles underlying First Amendment free speech law.