The Supreme Court has just created an aristocracy of the religious, who now can plausibly demand the right to defy almost any law. The Court has sometimes been willing to accommodate conscientious objectors, but its earlier decisions were nothing like what it has now done. By the Court’s logic, human sacrifice now presents a hard case, with a colorable argument for its protection.
Tandon v. Newsom was a 5-4 decision against California's COVID-19 order limiting more than three households from gathering in homes. The Court declared that laws can’t be applied to religious objectors so long as the state “treats some comparable secular activities more favorably.” Some regard this as a de facto return to the old rule, in effect from 1963 to 1990, that religious conscientious objectors have a right to accommodation where that’s reasonably possible. What the Court has announced, however, is far more extravagant: a right to nullify even the most urgent laws.
The Court declares that “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.” This calls into question laws that do not mention religion at all, and whose framers almost certainly were not even thinking about religion, such as the one in this case.
The regulation the Court enjoined simply said that more than three households could not gather in one home. The Court explained that this rule discriminated against religion, because “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.” (Justice Elena Kagan, dissenting, pointed out that those activities “pose lower risks” because they can enforce mask-wearing, the interactions are briefer and ventilation is better.)
It is hard to find any law that cannot be characterized as excusing comparable activity, especially if, as the Court says, the comparison is based on whether the state ever tolerates any setback to its pertinent interests. Few government purposes, not even the most critical ones, are pursued with monomaniacal intensity. Once a court has decided that a law discriminates against religion, “strict scrutiny” amounts to a powerful presumption of unconstitutionality — as evidenced by the Court’s extraordinary decision to issue an injunction against a law that had been upheld in the lower courts.
Human sacrifice is the classic example of a religious liberty claim that uncontroversially ought to lose. But the Court’s logic would give even the Aztecs a plausible free exercise claim.
What is the state’s interest when it forbids human sacrifice? People don’t want to be killed, obviously. But every state allows killing in self-defense. Is that not a comparable secular activity?
The Court tells us 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.” Murder is prohibited to further the interest in protecting unwilling homicide victims. But the state protects only some of them. Certain secular reasons for killing are favored over all religious reasons. The law “treats some comparable secular activities more favorably than” religious homicide.
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