Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, June 26, 2021

Acker on Fulton, Justice Kavanaugh, and the "Most Favored Organization" Argument

My former student and research assistant, Caleb Acker, has written up some comments on the recent Fulton case, and graciously permitted me to share them:

Fulton Paves the Way for “Most-Favored-Organization” Approach to Free Exercise

In his dissenting opinion to the Court’s denial of the application for injunctive relief in Calvary Chapel Dayton Valley v. Sisolak, Justice Kavanaugh explicitly endorsed Doug Laycock’s “most-favored nation status” approach to Free Exercise. See Laycock, The Remnants of Free Exercise, 1990 S. Ct. Rev. 1, 49–50. In international multilateral treaty-making, a most-favored-nation clause requires one WTO member to accord to every other member the privileges that the member grants to its most-favored nation. Even though each nation retains discretion to favor certain nations as it pleases, it is required by law not to disfavor other nations concerning the same privileges.

Justice Kavanaugh based this First Amendment framework in the “system of individual exemptions” exception to Smith (“the Exception”) established in that case, where a law that requires a decisionmaker to make an “evaluation of the particular justification” for religious conduct triggers strict scrutiny. See Lukumi, 508 U.S. at 537. In cases that “divvy up organizations into a favored or exempt category and a disfavored or non-exempt category,” Justice Kavanaugh argues, Sherbert-Smith requires judges to ask if the law creates a favored or exempt class of organizations and, if so, if religious organizations fall outside that class. In SherbertThomas, and Hobbie, regimes that required government bodies to determine on an individual basis whether religious reasons constituted “no fault” or “good cause” faced strict scrutiny. In other words, the decisionmaker should be required to treat any religious exemption-seeker as favorably as the secular exemption-seeker under Smith.

Josh Blackman has noted the major weakness of Justice Kavanaugh’s approach: its seeming travel beyond the boundaries of Smith’s language. See the extremely helpful Blackman, The ‘Essential’ Free Exercise Clause, 44 Harv. J.L. & Pub. Pol’y 637, 692–95. Blackman understands Justice Scalia to be making no “broad pronouncement about Free Exercise Clause jurisprudence” and to be speaking “about a specific aspect of unemployment compensation.” Id. at 693. By Blackman’s writing earlier this year, the Supreme Court had not expanded the Exception to other contexts, but lower courts (Third, Sixth, and Tenth Circuits) had. Put simply, to Blackman, Justice Kavanaugh’s Most-Favored-Organization approach sounds good, but it is limited to unemployment compensation.

That is, it was limited, until Fulton, where the Court completely unbounded Sherbert-Smith’s Exception, endorsing the expansion to all contexts already undertaken by the lower courts. Just read the Court’s unlimited language: “The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it invites the government to decide which reasons for not complying with the policy are worthy of solicitude.” Fulton, slip op., at 10 (cleaned up). That’s any government mechanism (whatever exactly that will mean), not just an unemployment benefits system. The main holding of Fulton simply made this expansion. “Like the good cause provision in Sherbert, [the Philadelphia policy] incorporates a system of individual exemptions.” Id. at 7.

Going forward, lower courts should completely adopt Justice Kavanaugh’s suggested Calvary Chapel approach through the language of Fulton. That is, if lower courts are confused at how exactly to apply Fulton to their own cases, Justice Kavanaugh’s dissent may be a guiding light of specificity. As he is wont to do, the Justice was certainly trying to give that very kind of guidance in his opinion, equipping judges with a two-step approach. Lower courts should ask whether a policy separates organizations into favored and disfavored categories for exemptions. If so, that obviously creates a “formal mechanism for granting exceptions,” rendering any such policy not generally applicable under Fulton. State governments would then need a compelling interest to refuse to treat religious organizations as Most-Favored Organizations under that policy.

For example, let’s apply Fulton to the Nevada regulations at issue in Calvary Chapel. The governor’s orders divvied up organizations into favored and disfavored organizations through differing population caps. The policy is a formal mechanism allowing higher caps for certain secular organizations while forcing lower caps for certain religious organizations. Governor Sisolak certainly decided which reasons for less regulation were “worthy of solicitude”: economic ones. (Religious reasons were not considered so worthy). Secular organizations were, essentially, given exemptions from the strict 50-person attendance cap levied against churches. Favored = Exempt. The policy was a system of individualized exemptions under Fulton.

As administrative states grow at all levels of government, religious organizations will continue to face state and local governments that place them in disfavored categories (including in ways devised explicitly to get around Fulton). Future claimants, in my view, would be wise to use Justice Kavanaugh’s Most-Favored-Organization approach through Fulton’s language. Favored means exempt, and any formal mechanism for granting exemptions—categorizing organizations as favored—triggers strict scrutiny.


Garnett, Rick | Permalink