Under Employment Division v. Smith, the Free Exercise Clause functions more like an antidiscrimination statute than a categorical protection. Thus, when courts examine free exercise cases, they must compare the way religious conduct is treated with the way secular conduct is treated. This raises an important question: Can a free exercise plaintiff prevail by showing that the government allows any type of secular conduct that is prohibited for religious actors? Or must the plaintiff show that the government allows comparable secular conduct that is prohibited for religious actors?

Some courts have said the latter is required. For example, in Commonwealth v. Beshear, the Kentucky governor ordered all schools—secular and religious—to close, yet permitted gyms, salons, and other secular businesses to remain open. A religious school argued that the order violated the Free Exercise Clause. A Sixth Circuit panel rejected the school’s argument, however, explaining that the order was neutral and generally applicable since it applied equally to secular and religious schools.

A few months later, a different Sixth Circuit panel reached the opposite conclusion. In Monclova Christian Academy v. Toledo-Lucas County Health Department, the court explained that “whether conduct is analogous (or ‘comparable’) for purposes of this rule does not depend on whether the religious and secular conduct involve similar forms of activity.” In other words, a law is not generally applicable simply because it treats the most similar secular activity the same as the burdened religious activity. What matters is whether the interest the state is pursuing by burdening religious conduct—here, reducing the spread of COVID-19 by closing religious schools—is pursued less vigorously in secular arenas left unburdened, comparable or not.

Read together, Beshear and Monclova highlight the gap that exists in free exercise jurisprudence. In one instance, the Seventh Circuit confessed its frustration with free exercise cases, proclaiming that “[i]t is difficult . . . to know the most appropriate comparisons for evaluating restrictions on religious activities.” Even Justice Gorsuch in his Fulton v. City of Philadelphia concurrence expressed sympathy for the lower courts, acknowledging that the Supreme Court’s free exercise jurisprudence has too many unanswered questions.

Recently, however, the Court has shed some light on this issue. In April, the Supreme Court declared in Tandon v. Newsom that government regulations are unconstitutional “whenever they treat any comparable secular activity more favorably than religious exercise.” Further, in Fulton, the Court echoed Monclova and Tandon, explaining that “[a] law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”

Despite the Court’s recent guidance, lower courts still grapple with managing a workable comparator analysis. For example, in Resurrection School v. Hertel, a religious school challenged a Michigan order that required masks in secular and religious schools, yet did not require masks in other secular contexts. The majority upheld the order, largely relying on Beshear. Judge Siler dissented, however, and argued that Beshear conflicted with Tandon. He would have remanded the case to the district court to reconsider the issue under Tandon.

So, where are we going? Some Justices want to depart from the Smith regime altogether, which could end the focus on discrimination and thus the comparator analysis. Even Justice Breyer has hinted that a balancing test may be a better way to examine free exercise cases. But for now, Smith is here to stay, and lower courts will still struggle with these issues. Thus, the search for a workable free exercise jurisprudence continues on.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.