The False Promise of Expanded Religious Liberty Rights after the Covid-19 Cases and Fulton V. City of Philadelphia

64 Pages Posted: 27 Sep 2022

See all articles by Shlomo Pill

Shlomo Pill

Texas Southern University - Thurgood Marshall School of Law; Emory University School of Law

Date Written: July 31, 2022

Abstract

This article explains and critiques the Supreme Court’s recent of constitutionally required exemptions from laws that burden religious practice. This change to long-standing free exercise doctrine was affected in a rapid series of “shadow docket” rulings issues in response to religious challenges to public health capacity restrictions and mask mandates during late 2020 and early 2021 and was reinforced by the Court’s subsequence decision in Fulton v. City of Philadelphia.1 In these cases, the Court significantly narrowed the Smith test, which had subjected neutral and generally applicable laws that burden religious practice to only rational basis review. Under the Court’s new free exercise regime, however, facially neutral laws are ostensibly subject to strict scrutiny whenever they fail to accommodate religious practices while permitting any analogous secular conduct. After tracing the development of the Court’s free exercise jurisprudence and explaining the dramatic doctrinal shift that occurred during the height of the Covid-19 pandemic, this article criticizes the Court’s new approach for being analytically incoherent, manipulable, and unworkable. The article goes on to justify these claims by examining the Court’s own inconsistency in responding to free exercise challenges to Covid-19 vaccination mandates.

Keywords: covid-19, SCOTUS, Philadelphia, free exercise

JEL Classification: K00, Z12

Suggested Citation

Pill, Shlomo, The False Promise of Expanded Religious Liberty Rights after the Covid-19 Cases and Fulton V. City of Philadelphia (July 31, 2022). CSLR Research Paper No. 14.2022-AFF, Available at SSRN: https://ssrn.com/abstract=4189040 or http://dx.doi.org/10.2139/ssrn.4189040

Shlomo Pill (Contact Author)

Texas Southern University - Thurgood Marshall School of Law ( email )

3100 Cleburne Street
Houston, TX 77004
United States

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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