COVID-19, Free Exercise, and Most Favored Nation Status

Authors

Mark Strasser, Capital University Law School

First Page

1

Abstract

Commentators and some Justices suggest that religious activity is accorded a kind of Most Favored Nation status under free exercise guarantees—if a statutory exception is made for a relevantly similar secular activity, then an exception must also be made for religious activity. Such an approach would require a careful consideration of which secular activities were relevantly similar to religious activities to warrant protecting the latter. But the Most Favored Nation approach involves a mischaracterization of the past jurisprudence. Further, as is evidenced in the COVID cases, the U.S. Supreme Court does not engage in a nuanced consideration of which activities are relevantly similar, misapplying the overly protective approach that it has invented. Given the great diversity of religious belief and practice in our country, it will be impossible to apply this Most Favored Nation status across all religious beliefs and practices, which will mean that the courts will have to pick and choose which religious practices to protect. The Court’s current approach cannot help but undermine religious freedom and respect for the Court.

Recommended Citation

Mark Strasser, COVID-19, Free Exercise, and Most Favored Nation Status, Lewis & Clark L. Rev. 1 (2023).
Available at: https://lawcommons.lclark.edu/lclr/vol27/iss1/2