The court’s decision in Tandon v. Newsom blocked California COVID-19 restrictions on in-home prayer meetings (shinphoto via Shutterstock) On Feb. 24, 2020, the Supreme Court granted certiorari in Fulton v. City of Philadelphia , a case in which the petitioners and several amici are asking the Court to either (1) overrule Employment Division v. Smith , a 1990 decision holding that the free exercise clause does not provide a right to religious exemptions from general laws, or (2) sharply limit the impact of Smith by interpreting it as guaranteeing a “most favored nation” status for religious exemption claims. Under the latter theory, even if a law broadly covers both secular and religious conduct, it would not be considered “neutral and generally applicable” for purposes of Smith if it contains any exemptions that are deemed “comparable” to the requested religious exemption. Instead, the theory posits, the existence of any such exemptions for “favored” activity triggers a presumptive right to a religious exemption that the government can only deny if it satisfies strict scrutiny. Either overruling Smith or adopting the most-favored-nation theory in Fulton would have been big news. Congress had previously sought to reverse the effect of Smith and guarantee […]
