I’m delighted to report that Prof. Andrew Koppelman (Northwestern) will be guest-blogging this coming week about his new article, “The Increasingly Dangerous Variants of the ‘Most-Favored-Nation’ Theory of Religious Liberty“:
The First Amendment prohibits discrimination against religion. In a short time, mostly in cases challenging efforts to contain the Covid pandemic, the Supreme Court has transformed this familiar rule into new, more exacting doctrines that might exempt religious people from almost any law. This article taxonomizes these doctrinal variants, showing that they are dangerous, indefensible mutations of the most-favored-nation (MFN) theory of religious discrimination. These variants go well beyond the most attractive rationale for MFN. Their implications are so anarchic that the Court cannot possibly pursue them to the limits of their logic. Their deployment in practice will necessarily be selective, and is likely to benefit claimants the judges like and to constrain laws the judges dislike.
I’ve long been troubled by the relatively aggressive versions of this “most-favored-nation” theory, starting with my A Common-Law Model for Religious Exemptions article in 1999 (pp. 1539-42) on to my Fulton v. City of Philadelphia amicus brief (pp. 23-30); and I’m therefore particularly glad to see Prof. Koppelman’s contribution.