The Increasingly Dangerous Variants of the 'Most-Favored-Nation' Theory of Religious Liberty

62 Pages Posted: 8 Mar 2022 Last revised: 19 Jul 2023

Date Written: March 3, 2022

Abstract

The First Amendment prohibits discrimination against religion. In a short time, mostly in cases challenging efforts to contain the Covid pandemic, the Supreme Court has transformed this familiar rule into new, more exacting doctrines that might exempt religious people from almost any law. This article taxonomizes these doctrinal variants, showing that they are dangerous, indefensible mutations of the most-favored-nation (MFN) theory of religious discrimination. These variants go well beyond the most attractive rationale for MFN. Their implications are so anarchic that the Court cannot possibly pursue them to the limits of their logic. Their deployment in practice will necessarily be selective, and is likely to benefit claimants the judges like and to constrain laws the judges dislike.

Keywords: Constitutional Law, Originalism, First Amendment, Free Exercise, Douglas Laycock

JEL Classification: K10, K19, K30, K39

Suggested Citation

Koppelman, Andrew M., The Increasingly Dangerous Variants of the 'Most-Favored-Nation' Theory of Religious Liberty (March 3, 2022). Northwestern Public Law Research Paper No. 22-01, Available at SSRN: https://ssrn.com/abstract=4049209 or http://dx.doi.org/10.2139/ssrn.4049209

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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