Prof. Andrew Koppelman (Northwestern) Visitor-Running a blog About Spiritual Liberty

The First Modification prohibits discrimination towards faith. In a short while, principally in circumstances difficult efforts to include the Covid pandemic, the Supreme Court docket has reworked this acquainted rule into new, extra exacting doctrines that may exempt non secular folks from virtually any legislation. This text taxonomizes these doctrinal variants, exhibiting that they’re harmful, indefensible mutations of the most-favored-nation (MFN) idea of spiritual discrimination. These variants go effectively past essentially the most enticing rationale for MFN. Their implications are so anarchic that the Court docket can’t probably pursue them to the boundaries of their logic. Their deployment in observe will essentially be selective, and is more likely to profit claimants the judges like and to constrain legal guidelines the judges dislike.

I’ve lengthy been troubled by the comparatively aggressive variations of this “most-favored-nation” idea, beginning with my A Frequent-Regulation Mannequin for Spiritual Exemptions article in 1999 (pp. 1539-42) on to my Fulton v. Metropolis of Philadelphia amicus temporary (pp. 23-30); and I am subsequently significantly glad to see Prof. Koppelman’s contribution.