William & Mary Bill of Rights Journal


Shlomo C. Pill


This Article explains and critiques the Supreme Court’s recent reframing of religious free exercise rights. This change was initiated by a series of “shadow docket” rulings issued in late 2020 and early 2021 in which the Court sustained religious challenges to COVID-19 capacity restrictions and mask mandates. That doctrinal shift was confirmed and reinforced by the Court’s subsequence decision in Fulton v. City of Philadelphia. In these cases, the Court significantly narrowed the Smith test, which, since 1990, had subjected neutral and generally applicable laws that burden religious practice to only rational basis review. Under the Court’s new free exercise regime, however, facially neutral laws are ostensibly subject to strict scrutiny whenever they fail to accommodate religious practices while permitting any analogous secular conduct. After tracing the development of the Court’s free exercise jurisprudence and explaining the dramatic doctrinal shift that occurred during the height of the COVID-19 pandemic, this Article criticizes the Court’s new approach for being analytically incoherent, manipulable, and unworkable. The Article goes on to justify these concerns by examining the Court’s own inconsistency in responding to free exercise challenges to COVID-19 vaccination mandates.

This abstract has been taken from the author's introduction.