The recent spate of “religious liberty” cases, claiming the right to religious exemptions from Covid-19 related stay-at-home orders, is an opportunity to correct the misguided understanding of “discrimination” that drives these cases.
A recent lawsuit by three Southern California churches alleges that religion is being unfairly “singled out” and “relegated to second class status” because religious services are not on the list of essential services exempted from the orders. But is it discrimination, and if it is, what kind?
Much of the rhetoric surrounding these religious discrimination cases invokes the specter of intentional religious persecution. Attorney General William Barr says he is intervening in one such case because the orders are “singling out” and “targeting” religion and are therefore not “neutral laws of general application.”
Analogies are drawn with a 1993 case in which the U.S. Supreme Court recognized that an ordinance banning the practice of animal sacrifice was not a neutral law of general application, even though it was couched in neutral language, because it was motivated by animus toward practitioners of the Afro-Caribbean Santeria religion who bore the brunt of the ban.
According to the court, there is no right to a religious exemption from neutral laws of general application under the Free Exercise Clause. But a “law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.”
Are Stay-at-Home Orders Not Neutral?
So, are the stay-at-home orders not neutral, and are they not of general application? As Barr and the plaintiffs recognize, they have no leg to stand on unless they can characterize the regulations they are challenging as not neutral, not of general application, as, in a word, intentional discrimination that subjects people engaged in religious activities to burdens not inflicted on anyone else.
How can an order banning all public activities, secular and religious alike, be called intentional discrimination, or seen as singling out religion for different, disadvantageous treatment? Here the plaintiffs resort to a principle recognized in previous cases that, where there is a system in place for granting secular exemptions, it is unconstitutional to refuse to grant religious exemptions.
Applying this holding to the Southern California cases, the argument is that the refusal to place religious services on the list of essential services is a form of discrimination that renders the policy not neutral, not of general application, but a form of intentional targeting.
The idea that the existence of a system for granting exemptions removes regulations from the category of neutral laws of general application that are insulated from free exercise challenges comes from the 1990 Employment Division v. Smith decision, authored by the late Justice Antonin Scalia. It constitutes an exception to the general rule announced in that case that there is no right to religious exemptions from neutral laws of general applications; it tells us when a religious exemption is required even though the regulation is not intentionally discriminatory.
In an influential decision written by Justice Samuel Alito before he was appointed to the Supreme Court, he misconstrued the logic of this so-called “individualized government assessment exception” to mean that the practice of granting only secular exemptions is a form of intentional discrimination for which exemptions for religious objectors are the appropriate remedy.
But this is absurd. The appropriate remedy for intentional religious discrimination is not to exempt the victims from the law whose sole purpose is to discriminate against them, but, rather, to strike the law down (as the Supreme Court did with the animal sacrifice ordinance in the Santeria case).
Intentional vs. Unintentional Discrimination
Relying on Alito’s (mis)-interpretation of the individualized government exception, the argument challenging the stay-at-home orders blurs the distinction between intentional and unintentional discrimination. It also blurs the important distinction between burdens that are unintentionally discriminatory (and therefore deserve strict judicial scrutiny) and burdens that aren’t discriminatory at all.
As the Supreme Court recognized in the very first case to grant a religious exemption, when burdens are imposed as the result of unintentional discrimination, that constitutes just as great a violation of the right to be treated be equally as intentionally imposed burdens do. The example in that case was a Seventh Day Adventist Saturday sabbath observer burdened by rules that enforced conformity to mainstream Christian calendrical norms.
Another good example of this kind of cultural discrimination is the situation that Alito adjudicated, which involved a challenge brought by two Muslim police officers to their police department’s no-beard policy. While wrongly reasoned, the case, which held that the Free Exercise Clause required granting the officers a religious exemption, was rightly decided.
And the reason it was rightly decided is that this was a policy that reflected, not animus towards the affected group, but rather, a reflexive adoption of majority norms—and the cultural blind spots in those norms—as did the policy challenged in the Saturday Sabbath observance case.
It makes sense to recognize policies like these that are expressive of cultural biases and blind spots as a form of discrimination that should trigger strict scrutiny even though they aren’t animated by animus toward the group. It likewise makes sense for the remedy to be an exemption, rather than an invalidation of the law, and to require religious exemptions to be granted in the absence of a compelling reason to deny them.
It does not make sense to equate this form of unintentional discrimination with intentional discrimination and hostility toward religion. Nor does it make sense to assume that all regulations that have a disparate impact on a religious group are products of cultural blind spots which give rise to unintentional discrimination.
Laws and regulations always affect people unequally. When burdens fall disproportionately on members of a minority, it is not their discriminatory impact but our recognition that such laws reflect a fatal indifference to the people whose opportunities are hindered by them that supports their classification as a form of discrimination demanding redress.
The Southern California cases cannot plausibly claim that the failure to include church services on the list of essential services reflects a cultural blind spot, and there’s plenty of evidence to the contrary. The plaintiffs themselves note that public officials accommodated their request for an exemption during Easter weekend. Incredibly, they argue this is government discrimination—in favor of them, and against other religious groups.
Far from ignoring or being indifferent to them, the government was sensitive to the importance of religious services. The stay-at-home policies reflect neither blind spot discrimination nor intentional discrimination, and in their absence, these claims must fail.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Nomi Stolzenberg is a professor of law at the University of Southern California Gould School of Law whose research spans a range of interdisciplinary interests, including law and religion, cultural pluralism, law and liberalism, and law and literature. Her research has been published in leading journals including the Harvard Law Review and Oxford Journal of Legal Studies.