Tandon in Light of Lukumi, and Smith in Light of Them Both: Value Judgments, Levels of Generality, and the General Applicability Standard

Abstract

This Article makes three arguments, all rooted in Lukumi’s value-judgment justification for the general applicability standard. First, Lukumi’s value-judgment justification is much broader than Lukumi itself suggests, and potentially so broad as to be unworkable. Second, this broad standard means both that Tandon was rightly decided and that Smith itself was not—according to the logic of Lukumi and Tandon, the very law in Smith was not generally applicable. And third, in addition to showing that Smith was wrongly decided on its facts, this value-judgment justification fundamentally undermines the general applicability rule itself.

First, Lukumi grounds the general applicability standard in a rule against value judgments: the government may not devalue religious conduct in the pursuit of its interests. But government interests come in different levels of generality. As an example, the government’s interest in “Stopping the Spread” of COVID-19 in the home serves its broader interest in “Stopping the Spread” of COVID-19 more generally, which in turn serves a broader interest in public health. As applied to value judgments, these different levels of generality have two significant implications. First, the government may make value judgments in the pursuit of its interests at all levels of generality. And second, as the level of generality increases, so too does the scope of the conduct that threatens those interests. Unless analogous secular conduct must be inherently analogous to the relevant religious conduct, combining a high level of generality with all conduct that threatens it produces a theoretically justified but practically unworkable general applicability standard.

Nevertheless, Tandon partially confirms this broad reading of Lukumi. While Tandon does not address whether analogous secular conduct must be inherently analogous, it casts the government’s interest at a high level of generality: stopping the spread of COVID-19 in general. As such, it is not sufficient, as the dissent suggests, that religious and secular conduct were treated alike at the interest’s lowest level of generality: stopping the spread of COVID-19 in homes. Importantly, had the general applicability analysis in Smith been conducted at this level of generality, Smith would have come out the other way.

Finally, in addition to casting doubt on whether Smith was decided correctly on its facts, the value-judgment justification fundamentally undermines the rule of general applicability itself. Value judgments inhere in the very act of regulation. Before regulating religion at all, the government must calculate religious costs and adjudge those costs to be outweighed by some governmental interest. This too is a value judgment, and this too should be subjected to the strictures of strict scrutiny.

Keywords: Tandon, Smith, Lukumi, COVID, COVID-19, Religious Liberty, Free Exercise, Compelling Interest, Value Judgment, Level of Generality