\n\n“Until recently, the Supreme Court\u2019s precedents drew a distinction between religious discrimination cases, where religious plaintiffs typically prevailed, and cases where religious people or institutions were treated the same as comparable secular institutions or individuals.<\/p>\n\n\n\n
Under the Supreme Court\u2019s decision in Employment Division v. Smith<\/em><\/a> (1990), state laws may be enforced against people who object to those laws on religious grounds so long as the challenged policy is a \u201cneutral law of general applicability.\u201d Thus, so long as a state law does not single people of faith out for inferior treatment, such people of faith must comply with the law. (A federal statute applies a stricter rule to federal laws<\/a> that burden religious exercise, so religious objectors are much more likely to prevail in suits against the federal government.)<\/p>\n\n\n\n If a state or local government discriminates against a particular religion or against religious institutions generally, however, such discrimination will typically be struck down. The seminal Supreme Court case involving religious discrimination is Church of the Lukumi Babalu Aye v. City of Hialeah<\/em><\/a> (1993), which answered the question of how courts should approach laws that appear to be neutral on their face, but were enacted with a discriminatory purpose.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “Lukumi<\/em> established that, when a law that appears neutral on its face contains an array of exemptions, those exemptions can provide evidence that the real purpose of the law is to discriminate on the basis of faith. Several justices, however, believe that Lukumi<\/em> does not go far enough. They\u2019ve claimed that the presence of exemptions in an otherwise neutral law isn\u2019t just evidence<\/em> that the purpose of the law is religious discrimination, but that it is often definitive proof<\/em> of discrimination.<\/p>\n\n\n\n Thus, for example, in his dissent from the Court\u2019s decision not to hear Stormans v. Wiesman<\/em><\/a> (2016), Justice Samuel Alito claimed that a Washington state regulation that requires pharmacies to \u201cdeliver lawfully prescribed drugs or devices to patients\u201d was constitutionally suspect because it included a number of secular exemptions \u2014 the regulation permitted a pharmacy to refuse to fill a prescription if it did not accept the patient\u2019s insurance, for example \u2014 but no exemption for religious pharmacy owners who object to dispensing birth control.<\/p>\n\n\n\n Alito, in other words, sought to blur the line between religious discrimination cases and cases involving a \u201cneutral law of general applicability\u201d by defining the concept of religious discrimination so broadly that an enormous swath of state laws become suspect.<\/p>\n\n\n\n The Court\u2019s decision in Roman Catholic Diocese<\/em>, the case involving New York\u2019s restrictions on attendance at worship services, largely embraced Alito\u2019s vision. Although these restrictions were quite severe, they are actually less harsh than the restrictions imposed on secular businesses that are similar in character to places of worship. As a lower court that upheld New York\u2019s restrictions explained, \u201cpublic gatherings with scheduled starting and ending times such as public lectures, concerts or theatrical performances\u201d must \u201cremain closed entirely<\/a>\u201d in the parts of New York where strict limits on houses of worship were in place.<\/p>\n\n\n\n But Roman Catholic Diocese<\/em> held that it does not matter whether businesses that are similar in character to houses of worship are subject to less restrictive rules. What matters is whether any<\/em> secular business is subject to lighter restrictions. If the state only permits churches to admit 25 people, but it permits grocery stores to admit many more people, then the state\u2019s actions are potentially suspect.<\/p>\n\n\n\n Roman Catholic Diocese<\/em>, in other words, is a tremendous expansion of the Court\u2019s holding in Lukumi<\/em>. Lukumi<\/em> called for a fact-specific inquiry into the real reason why a state or local government enacted a policy that burdens people of faith, and the purpose of that inquiry was to sniff out laws that \u201cstem from animosity to religion or distrust of its practices.\u201d Roman Catholic Diocese,<\/em> by contrast, presumes that the state engaged in unconstitutional discrimination if a religious institution is treated differently from secular ones \u2014 regardless of why the institutions are treated differently.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “Before Roman Catholic Diocese<\/em>, it was clear that the Danville Christian<\/em> plaintiffs should have lost their case. Gov. Beshear\u2019s order closes all primary and secondary schools, regardless of whether those schools are religious or secular. Whatever the wisdom of that policy, it\u2019s a neutral law of general applicability. It does not treat religious schools any differently than similar secular schools.<\/p>\n\n\n\n After Roman Catholic Diocese<\/em>, however, it\u2019s far from clear that the Danville Christian<\/em> plaintiffs should lose. As Justice Neil Gorsuch points out in a dissenting opinion<\/a>, Kentucky allows a wide array of secular institutions to remain open, including preschools, universities, movie theatres, and bowling allies.”<\/p>\n\n\n\n …<\/p>\n\n\n\n