Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have become even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to virtually all approaches to the issue: What must a government do to justify restrictions on religious exercise? Every extant adjudicatory framework—including proportionality and strict scrutiny approaches—purports to require such governmental justification. But they do so through different frameworks and with dramatically different degrees of rigor. In our view, it is rigor and not labels that really counts—the rigor with which courts require governments to justify religious restrictions. Differences in rigor cannot be explained in terms of the underlying adjudicatory framework. Neither the proportionality framework that prevails internationally nor the strict scrutiny framework prominent in the United States suffices, standing alone, to require governments to meaningfully justify restrictions on religious exercise. To require genuine justification, courts must: (1) require governments to treat religiously-motivated conduct in an evenhanded way vis-à-vis analogous secular conduct; (2) oblige governments to show, with evidence, that the religious restrictions are necessary; and (3) avoid redefining a controversy’s theological stakes in ways that minimize the religious claimant’s dilemma. Proportionality and strict scrutiny are both capable of incorporating these three factors, but courts applying the two tests do not always do so. In this Article, we survey how courts across several jurisdictions have succeeded or failed in this regard, paying particular attention to conflicts arising in the COVID-19 context. We also suggest some possibilities of convergence that will help both proportionality courts and strict scrutiny courts to better protect the core substance of religious liberty