Religious Equality Run Amuck

Ezra Young

In her Supreme Court chambers, the late Justice Ruth Bader Ginsburg prominently displayed a passage of Hebrew scripture: “Tzedek, Tzedek, tirdof.”¹ In English, the passage reads: “Justice, justice you shalt pursue.”²

Some Americans are ardently religious.³ And some, like Justice Ginsburg, believe they are religiously obliged to do right in both public and private life. Figuring out how far individuals may extend their religious exercise into the public sphere is difficult and increasingly fraught. As Justice Ginsburg elevated more than a decade ago in her dissent to Burwell v. Hobby Lobby Stores, Inc.,⁴ a legal rule that allows a religious person to affect the rights of someone who does not share their views is constitutionally suspect.⁵ Put another way, the big metaphysical questions some of us happily answer through faith alone are not always conducive to secular logics, let alone law.

As a man of faith and ardent constitutionalist, I have been uneasy about the special solicitude the Court has extended to some free exercise challengers, especially those who appear to be litigating in bad faith.⁶ But not having a strong background in First Amendment jurisprudence, I have had trouble fully digesting the gravity of recent decisions. For readers like me, Professor Zalman Rothchild’s latest article, The Impossibility of Religious Equality, published by the Columbia Law Review, is a must-read descriptive account and critique of the Supreme Court’s free exercise jurisprudence.⁷

Cogently, Rothschild explains that, over the last few decades, the Court has shifted from conceptualizing free exercise as a liberty interest, to conceiving it as mandate for super-charged religious equality. For much of the twentieth century, the Court approached free exercise through a liberty paradigm—any law that burdened religious practice, even incidentally, was presumptively unconstitutional unless narrowly tailored to achieve a compelling government interest. (P. 455.)⁸

Things changed with Employment Division v. Smith.⁹ In Smith, the Court held that Oregon’s generally applicable unemployment rule which disentitles workers to benefits if they are terminated for misconduct does not run afoul of the Free Exercise Clause when applied to Native American drug counselors terminated for using peyote. Peyote is a cactus containing mescaline, consumed by some as a religious sacrament, which Oregon criminal law separately prohibited.¹⁰ Smith ultimately reasoned, that while possible for Oregon to create a religious accommodation for peyote use legislatively, the First Amendment does not require enactment of a “religious-practice exemption.”¹¹

Over time, Smith has bizarrely been construed as creating a “new constitutional rule against religious discrimination.” (Pp. 455, 460–85.) Under this new rule, if a law gives secular exemptions but denies religious exemptions, it is presumptively unconstitutional. (Pp. 496–97.) This holds “even if regulating religion is entirely unrelated to the law’s purpose.” (Pp. 496–97.) Consequently, “[w]hen a law bestows the benefit of an exception according to a classification that does not include ‘comparable’ religious entities, activities, and motivations,” it is unconstitutional. (P. 456.) (Or the Court may even, as was held recently in Mahmoud v. Taylor, require reinstatement of previously eliminated opt-out policy to specially accommodate religious objectors.¹²)

As a practical matter, because most laws have some secular carve-outs, all must also accommodate religious exemptions. Rothschild characterizes this rule as affording “additional deference [to religion] that renders it even more sweeping and more potent than religious liberty.” (P. 487.)

Using Covid-19 lockdown orders as one example, under the liberty paradigm, a challenger may have been able to show the order imposes a “substantial burden” on her religious practice, but still would have failed to impeach “the compelling nature of the government’s interest or the necessity of the government’s chosen methods” by pointing to the order’s secular exemptions. (P. 486.) But under the equality paradigm, the challenger will prevail if the order contains any secular exemption but lacks a religious one (id.). The operative difference is, Rothchild reasons, that the equality paradigm presumes free exercise entitles the plaintiff to an exemption on religious grounds if exemptions are available on nonreligious grounds.

Rothschild’s critique of the Court’s new religious equality mandate is intriguing. He urges that the mandate is both “practically unworkable and conceptually incoherent.” (Pp. 457, 494–95.) It is unworkable because it calls for treating religion the same as secular comparators even though religion is not comparable in terms of its essence or value. (Pp. 495–523.) And it is incoherent insofar as it presumes that “religion is always at least as valuable as all that is secular” (P. 494) but not vice versa, which Rothschild charges is “the very opposite of equality.” (P. 524.)

In the Roberts Court, one of Rothschild’s suggested interventions may prove viable. To wit, Rothschild suggests that the Court and scholars alike have overlooked that, as a textual matter, the First Amendment bars government from making laws “prohibiting the free exercise [of religion].” (P. 528.) This “antipersecution” component of free exercise has been underappreciated by the Court.¹³ I agree with Rothschild that the word “prohibiting” in the First Amendment should inform how we construe the metes and bounds of the free exercise guarantee. Hopefully, Rothschild and other scholars will more fully interrogate what difference that shift makes in the coming years.

1. Ruth Bader Ginsburg, “Remarks at National Commemoration of the Days of Remembrance at the United States,” Holocaust Memorial Museum (Apr. 22, 2004).
2. Deut. 16:11.
3. Chip Rotolo, Growing Share of U.S. Adults Say Religion is Gaining Influence in American Life, Pew Res. Ctr. (Oct. 20, 2025).
4. 573 U.S. 682 (2014).
5. 575 U.S. 682, 746 (2014) (Ginsburg, J., dissenting) (“The exemption sought by Hobby Lobby [] would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. In sum, with respect to free exercise claims no less than free speech claims, your right to swing your arms ends just where the other man’s nose begins.”) (cleaned up).
6. For example, an exposé published before the Court decided 303 Creative v. Elenis, 600 U.S. 570 (2023) revealed that plaintiff Lorie Smith fabricated her claim that a gay couple asked her to create a wedding website as a pretense to challenge the Colorado law. Melissa Gira Grant, The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court, New Republic (June 29, 2023).
7. The First Amendment of the United States Constitution guarantees “Congress shall make no law . . . prohibiting the free exercise [of religion].”
8. For example, compare Follett v. Town of McCormick, 321 U.S. 573, 575 (1944) (framing free exercise as conferring a “preferred position” to religious liberties challenges) with Fulton v. City of Philadelphia, 593 U.S. 522 (2021) (city agency cannot refuse to exempt religious nonprofit from nondiscrimination terms of contract).
9. 494 U.S. 872 (1990).
10. For more on peyote and the ongoing struggle for Native American religious liberties, see generally Thomas C. Maroukis, The Peyote Road: Religious Freedom and the Native American Church (Univ. Okla. P. 2010) and James D. Muneta, Peyote Crisis Confronting Modern Indigenous Peoples: The Declining Peyote Population and a Demand for Conservation, 9 Am. Indian L.J. 135 (2020).
11. 494 U.S. at 890.
12. 145 S. Ct. 2332, 2364 (2025) (finding parents have a First Amendment right based on free exercise to both notice and the ability to opt their children out of instruction involving “LGBT+-inclusive” storybooks).
13. But see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532–33 (1993) (holding that facially neutral laws that target religious beliefs as such are never permissible, an extension of a line of Free Exercise Clause cases tracing origins to historical instances of religious persecution of concern to drafters of the Clause).