National Publications Feature Professor on Supreme Court Decision
National media outlets SCOTUS Blog, Slate, and Above the Law recently featured commentary from Lewis & Clark Law School Professor Jim Oleske on the Supreme Court’s treatment of religious exemption claims in litigation challenging COVID regulations. Oleske is a noted expert on the intersection of religious liberty and other constitutional values. The Court’s April 2021 decision in Tandon v. Newsom (Tandon), the most recent COVID case, delivered a significant change in the Court’s free exercise jurisprudence.
In Tandon, the Court decided that California violated the free exercise clause because the state made an exemption in COVID restrictions for indoor gatherings at retail stores and other public places, but did not allow in-home prayer meetings. The Court adopted the so-called “most favored nation” approach to religious exemption claims.
“Under this theory, even if a law broadly covers both secular and religious conduct, it would not be considered ‘neutral and generally applicable’ for purposes of Smith [Employment Division v. Smith, a 1990 Supreme Court decision] if it contains any exemptions that are deemed ‘comparable’ to the requested religious exemption,” writes Oleske on SCOTUSblog. “Instead, the theory posits, the existence of any such exemptions for ‘favored’ activity triggers a presumptive right to a religious exemption that the government can only deny if it satisfies strict scrutiny.”
“Smith says the free exercise clause of the First Amendment protects against the government targeting religious practice for disfavored treatment, but does not grant a right to exemptions from general law,” said Oleske in his interview with Slate. “Almost immediately after Smith, there were efforts to read into it a broader ‘most favored nation’ theory that said: Any time the government grants an exemption to a law, it has an obligation to grant a religious exemption, too, unless the government meets strict scrutiny. But that was not the law of the land until [the decision in Tandon].”
“I actually think the court should revisit Smith… But the way they’re doing it—creatively reinterpreting Smith in a way that cannot be reconciled with how the court has interpreted Smith in the past—is just inexcusable,” Oleske told Slate.
In a 2019 law review article entitled Free Exercise (Dis)Honesty, which Above the Law described as “prescient,” Oleske warned that the Court might choose to rewrite Smith rather than squarely overrule it. Oleske also co-authored an amicus brief to the Supreme Court in one of the COVID cases urging the Court not to use the most-favored-nation theory to sidestep Smith: “The Court could of course someday choose to revisit Smith and apply a form of heightened scrutiny to incidental burdens on religion,” wrote Oleske and 10 other church-state scholars. “But such a significant change in settled law should come only in a case where a challenge to Smith has been properly preserved, presented, and developed. It should not be accomplished through the backdoor of the most-favored-nation theory—and certainly not in an emergency order on the shadow docket, without the benefit of full briefing, wide amicus participation, and oral argument.”
In his SCOTUS Blog piece, Oleske notes that “with the most-favored-nation approach now the law of the land as a result of Tandon, the considerable challenges of implementing the court’s new free exercise regime must be faced.”