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

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