Justice Kavanaugh's Calvary Chapel Dissent Misstates Free Exercise Law

by Michael C. Dorf

Late last week, in Calvary Chapel Dayton Valley v Sisolak, the Supreme Court denied a Nevada church's request for injunctive relief against state COVID-19 rules that limit in-person worship services to 50 people. The church pointed to Nevada rules that permit other places where people gather indoors for sustained periods of time--including casinos, bowling alleys, and restaurants--to be open at 50% capacity, even if their regular capacity greatly exceeds 100. The Court denied the request 5-4 without giving a reason, but it is relatively easy for readers to infer that the majority thought the case was sufficiently similar to its May 29, 2020 decision in South Bay United Pentecostal Church v. Newsom to warrant the same result.

In South Bay, a church complained that California was discriminating against religion by subjecting worship services to greater restrictions than some other facilities, such as grocery stores and marijuana dispensaries. Concurring in the order denying relief, Chief Justice Roberts rejected the church's analogy:
Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
The same four Justices who dissented in South Bay--Thomas, Alito, Gorsuch, and Kavanaugh--also dissented in Calvary Chapel, but they argued that even accepting South Bay's authority, the church in Calvary Chapel should win. In three dissents--one by Alito and joined by Thomas and Kavanaugh, as well as solo dissents by each of Gorsuch and Kavanaugh--they explained that, as Justice Alito put it, Nevada "specifically treats worship services differently from other activities that involve extended, indoor gatherings of large groups of people." Collectively, the dissents are quite persuasive that there is no good public health justification for the differential treatment. They also demonstrate that Nevada's reopening has proceeded recklessly and almost certainly led to avoidable illnesses and deaths.

But do the dissents demonstrate that Nevada has discriminated on the basis of religion in violation of the First Amendment's Free Exercise Clause (as incorporated by the Fourteenth Amendment)? That's a trickier question, as to which Justice Kavanaugh writes thoughtfully but mischaracterizes current law.

Justice Kavanaugh helpfully distinguishes among four categories of laws: 
(1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations. 
He then says that Calvary Chapel falls into category (4), which seems correct. Nevada treats worship services at least equally with lectures, concerts, and many live performances but worse than some other establishments, including casinos, bowling alleys, and restaurants. So far so good. But Justice Kavanaugh goes on to say this: "Unless the State provides a sufficient justification otherwise, it must place religious organizations in the favored or exempt category." Moreover, Justice Kavanaugh says that this principle--what Professor Douglas Laycock called "something analogous to most-favored nation status” for religious organizations--is not a special feature of free exercise doctrine but an application of a broader rule supplied by "[t]he Court’s free-exercise and equal-treatment precedents." According to Professor Laycock's preferred approach, if a law provides even one secular exception, it should be deemed discriminatory against religion unless the government can justify the difference in treatment.

Justice Kavanaugh is mistaken in his assertion that Professor Laycock's view is already the law. The Court's precedents leave the question open with respect to free exercise and affirmatively reject it in equal protection cases.

Why does Justice Kavanaugh think most-favored-nation status is the law? He cites five authorities but only two Supreme Court cases. One of the cases is Employment Division v. Smith, in which the Court held that free exercise is an anti-discrimination principle but not an affirmative liberty right. Thus, an Oregon law that forbade everyone from using peyote triggered no heightened free exercise scrutiny when applied to Native Americans who used peyote as part of a religious ritual. Clearly the holding of Smith--which was adverse to the free exercise claimants--doesn't establish the most-favored-nation principle, and Justice Kavanaugh doesn't say otherwise. Instead, he cites the following dictum from the case: "where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason."

Justice Kavanaugh's second Supreme Court case is Church of Lukumi Babalu Aye, Inc. v. Hialeah, which repeats the Smith dictum. Lukumi provides somewhat stronger support for the most-favored-nation principle, because the free exercise plaintiffs in Lukumi won. However, the repetition of the Smith dictum in Lukumi really has little to do with the case. In Lukumi, a Florida city banned "ritual" animal "sacrifice" but permitted all manner of other cruel killings of animals. The record made abundantly clear that Hialeah didn't merely fail to treat religious practice as favorably as some secular practice. As Justice Kennedy wrote for the Court, "almost the only conduct subject to [the challenged ordinances was] the religious exercise of Santeria church members. The texts show that they were drafted in tandem to achieve this result." In other words, Lukumi fell within Justice Kavanaugh's first category. The ordinances' use of the words "ritual" and "sacrifice" could lead to the conclusion that the city expressly discriminated against religious organizations, and if not, we could readily expand the first category to include facially neutral laws adopted for the purpose and with the clear effect of discriminating against religion. Lukumi was not a Kavanaugh-category-4 case, and thus could not establish the most-favored nation principle.

So much for Supreme Court authority. Justice Kavanaugh also cites a Third Circuit opinion that then-Judge Alito authored, which obviously cannot establish Supreme Court precedent. And he cites two law review articles, one authored and the other co-authored by Professor Laycock, who successfully argued Lukumi and who, as noted above, coined the most-favored-nation term. The primary citation is of Laycock's article The Remnants of Free Exercise (not available for free online, alas). As the title and publication in the 1990 Supreme Court Review indicate, the main point of the article is to criticize the Smith rule as insufficiently accommodating of religion. In the pages Justice Kavanaugh cites, Professor Laycock explains why he thinks that the Smith dictum should be construed expansively.

Justice Kavanaugh also cites a 2016 article by Professor Laycock and attorney Steven Collis, who argue that the approach taken by then-Judge Alito for the Third Circuit and also adopted in an Eleventh Circuit case is preferable to the approach taken by the Ninth Circuit. Professor Laycock (by himself and with Mr. Collis) could be cited as authority for the proposition that the Court should take a case presenting the question whether to adopt the most-favored-nation principle and then do so, but nothing in what he writes in these articles shows that any Court precedent--other than the Smith dictum--already establishes that principle as law.

Meanwhile, the equal protection cases affirmatively reject the most-favored-nation principle. I can explain why with an analogy that unpacks the principle. Here's how it works with religion: There are two categories, religious (R) and secular (S). According to the most-favored-nation principle as Justice Kavanaugh explains it, worship services (R) face religious discrimination because they are treated worse than casinos (S), even though they're treated the same as lectures (S).

But now consider equal protection with two categories, male (M) and female (F). Suppose that women  (F) are treated worse than veterans (M) but the same as non-veteran men (M). If the most-favored nation principle applied to "equal-treatment" cases, as Justice Kavanaugh claims, this would be sex discrimination that would need to satisfy heightened scrutiny. However, I've just described Personnel Adm'r of Mass. v. Feeney, in which the Court said that almost that precise scenario was not sex discrimination because Massachusetts adopted its veteran preference despite rather than because of its impact on women. I say "almost" because a very small number of veterans (fewer than 2%) were female, but when the preference was adopted only men were veterans, and nothing in the Court's reasoning indicates that the results would have been different if the numbers were still 100-0 rather than 98-2.

Under the logic of Feeney and equal protection cases more broadly, Calvary Chapel would not be a case of anti-religious discrimination unless it could be shown that Nevada gave a preference to casinos, bowling alleys, and restaurants because they're not religious gatherings rather than simply in spite of that fact. Feeney and equal protection cases more broadly define discrimination as intentional disadvantage, not merely the failure to extend comparable treatment.

It might be objected that the Nevada directive in Calvary Chapel does not merely incidentally impact worship services but in Section 11 expressly identifies them. By contrast, in Feeney, there's no express sex classification. However, this objection misses the mark. The reason that Nevada singles out worship services is to treat them more favorably than some other comparable gatherings, such as "musical performances, live entertainment, concerts, competitions, sporting events, and any events with live performances," which are closed to the public per Section 22. If worship services were simply included in some larger category of "indoor gatherings" that included those other events but excluded casinos, bowling alleys, and restaurants, Justice Kavanaugh's analysis would be exactly the same. So the fact that the Nevada directive mentions worship services expressly is not relevant to the analysis. Calvary Chapel is indistinguishable from Feeney; if a veterans' preference didn't discriminate against women, then a casino preference doesn't discriminate against churches.

Where does this all leave us? Although Justice Kavanaugh misstates the current law, a colorable argument can be made for his view as a normative matter, and Professor Laycock has made that argument forcefully. Nonetheless, I think the argument should fail, as an example shows.

Suppose a state were to mandate vaccination for COVID-19 once a vaccine becomes available, exempting only people who have medical conditions that make vaccination very risky but not exempting generic anti-vaxxers or religious anti-vaxxers. Under the Laycock/Kavanaugh most-favored-nation approach, the state would need to justify its failure to extend the exemption to religious anti-vaxxers--and it's not clear that the courts would accept the argument that herd immunity cannot be achieved without a threshold of vaccination. If so, a religion-friendly court might say, there's insufficient reason to give medical exemptions but not religious ones unless one thinks that health is more important than salvation, a judgment that our increasingly theocratic judiciary might deem impermissible. I hope a court wouldn't so conclude but there's really no good reason why the issue should even arise. A regime of medical but not other exemptions is simply not discriminatory against religion in any conventional sense of discrimination. The Laycock/Kavanaugh approach is really an effort to overrule Smith through the back door.

Perhaps Smith should be overruled. Perhaps Feeney and the Court's skepticism of disparate impact claims more broadly should be re-examined. I have criticized Smith in the past, although, like many liberals, I have grown increasingly wary of a robust religious exceptions regime as I have seen how religious conservatives have been able to use constitutional free exercise and statutory RFRA claims to undercut anti-discrimination law and other progressive policies. Whatever one's views about the wisdom of Smith and the Court's disparate impact case law in equal protection, however, it would be better to debate these matters directly.