Many people are saying that the Court's COVID decision late last night radically transformed the law of free exercise. I don't think that's true. The disagreement among the justices is about the facts, not the governing law. On the law, they actually seem to agree (Thread)

In Employment Division v. Smith, the Court said that, where a law imposes a burden on religious practice, the law must be neutral and generally applicable. The debate in the COVID cases has focused on the latter requirement---whether the law is generally applicable.

In Church of Lukumi Babalu Aye v. Hialeah, the Court said that, under the general applicability requirement, government can’t regulate religious conduct while “failing to prohibit nonreligious conduct that endangers [the government’s] interests in a similar or greater degree.”

That’s what the majority's recent order has in mind when it says government can’t treat “any comparable secular activity more favorably than religious exercise,” where the two are “comparable” in terms of “the asserted government interest that justifies the regulation."

So, on that rule, if the state exempts secular businesses that undermine its interests in COVID transmission in a similar way to in-home Bible studies, it must also exempt the latter too.

Some commentators have read Lukumi as suggesting that the general applicability requirement is violated only where government exempts virtually everything else besides religion. But in fact, even the progressive justices already told us they don't hold that view.

Here’s Justice Kagan dissenting in a previous COVID case two months ago, citing the same test from Lukumi the majority referenced last night:

And what's more, if you look, the three progressive justices recited this same standard again in their overnight dissent:

All nine justices seem to agree that, where the government exempts secular conduct that undermines the government’s interests in a similar way to a proposed religious exemption, it must also grant the religious exemption.

What they disagree about is whether or not retail stores and in-home religious gatherings undermine the government’s interest “in a similar way.” The majority says yes, because they think the COVID risk is comparable. The dissent says no, because they don’t.

IMO, the commentary here is focused on the wrong thing. The real story is not that the justices disagree. That's a fact-specific disagreement. The real story is that all the justices largely agree on the big picture of what the law under Smith actually is. (Fin)