Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause

Abstract

Scholars have interpreted the Supreme Court’s recent decision in Fulton v. City of Philadelphia as declining to overrule Employment Division v. Smith so as to avoid revolutionizing the Free Exercise Clause. But what the Fulton Court did was arguably even more drastic than returning to the pre-Smith regime. This Essay uses vaccine mandates as a case study to clarify how Fulton has transformed free exercise doctrine by interpreting the right to free exercise as an expansive equality right. As the success of post-Fulton challenges to vaccine mandates demonstrates, free exercise as “religious equality” is potentially more powerful than free exercise ever was when it was treated as a liberty right protecting against incidental burdens on religion.

Keywords: free exercise, law and religion, individualized exemptions, discretion, Fulton