Did Pandemic Restrictions End the Limits of the Free Exercise Clause?

             The liberty principle for this Freedom Friday concerns the First Amendment’s free exercise clause. More than 30 years ago, the free exercise clause took a hit in a case known as Smith. The Supreme Court ruled in April 1990 that the free exercise clause does not protect religious groups unless there is mistreatment or limit religious activities.  

            In an article first published in the State of Faith newsletter and later published in the Deseret News, Kelsey Dallas explained that government officials “typically enjoyed the legal system’s support” as long as they did not “single out a faith group for mistreatment or limit only religious activities.” 

            In April 2021, the Supreme Court granted relief to churches in California that could not meet due to the gathering rules related to the pandemic. The Court ruled that a law must “be considered neutral and generally applicable” – a bar that is higher than it was previously.

“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.

            Dallas further explained that “religious individuals and organizations” should have an easier time after Tandon, but few religious leaders believe that the war on religion is over. This is because Tandon was not “argued before the court and the opinion was unsigned.” The “justices did not limit its applications,” but they also did not state “their new ideas about Smith in a more former 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.

            The end of limits to the free exercise of religion would be a giant move by the Court. It would also be one of the few good things to come out of the COVID-19 pandemic.