The Yale Law Journal


Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause

18 Sep 2021
April 29, 2022

abstract. Scholars have interpreted the Supreme Court’s recent decision in Fulton v. City of Philadelphia as declining to overrule Employment Division v. Smith so as to avoid revolutionizing the Free Exercise Clause. But what the Fulton Court did was arguably even more drastic than returning to the pre-Smith regime. This Essay uses vaccine mandates as a case study to clarify how Fulton has transformed free exercise doctrine by interpreting the right to free exercise as an expansive equality right. As the success of post-Fulton challenges to vaccine mandates demonstrates, free exercise as “religious equality” is potentially more powerful than free exercise ever was when it was treated as a liberty right protecting against incidental burdens on religion.


In 2021, as the COVID-19 pandemic entered its second year and the largest mass vaccination rollout in American history raced to contain it, the Supreme Court quietly but dramatically expanded the First Amendment right to free exercise of religion. In Fulton v. City of Philadelphia,1 the Court rested a free exercise holding on an individualized-exemptions rule that it had previously articulated only in passing.2 Under this rule, when the government retains any discretion to grant exemptions from a general rule, it must exempt religious objectors unless it can meet constitutional law’s most demanding test: strict scrutiny.

At first glance, Fulton may seem like a narrow decision—which is how most commentators have interpreted it and which would help explain how it garnered the votes of all nine Justices.3 But Fulton is not a narrow decision. As this Essay argues, Fulton in fact represents a significant expansion of the right to free exercise of religion. This expansion is part of the Supreme Court’s recent project of transforming free exercise into a sprawling and unbounded “religious equality right.”

Reva Siegel has coined the term “preservation through transformation” to explain equal-protection reforms that were presented as revolutionary but in fact served to preserve and perpetuate inequality.4 This Essay suggests that the Roberts Court in Fulton did the opposite: it engaged in what we might call “transformation through preservation.” As it has done in other recent free exercise cases,5 the Court cast the decision as exceedingly narrow and limited—as merely applying its existing individualized-exemptions doctrine rooted in earlier decisions—in order to win the votes of the liberal Justices.6 In reality, Fulton represents a marked expansion of the right to free exercise of religion.7

The effects of this expansion project have been on full display in a recent spate of challenges to government efforts to mandate vaccinations against COVID-19. This Essay uses such challenges as a case study to clarify how Fulton has subtly but significantly altered free exercise doctrine by interpreting the right to free exercise as a broad religious-equality right. As the unprecedented success of post-Fulton free exercise challenges to vaccine mandates helps demonstrate, free exercise as religious equality has already proven to be a far more robust right than free exercise ever was when it was treated as a liberty right protecting against incidental burdens on

This is so even in cases involving specific constitutional questions that have been asked and answered uniformly in favor of the government for over a century.9 Until 2021, every free exercise challenge to a vaccine mandate in federal or state court had been straightforwardly rejected in favor of the government’s public-health initiative.10 Courts often seemed baffled at the mere suggestion that religious freedom could be imagined as freedom to opt out of a vaccine mandate.11 In a post-Fulton world, however, it is no longer obvious to judges—Republican-appointed and Democratic-appointed judges alike12—that freedom of religion does not confer upon religious objectors the right of vaccine refusal.13

This shift in outcomes can be attributed in large part to a shift in doctrine.14 With a powerful new free-exercise-as-equality doctrine on the books, lower courts have been enabled and emboldened to strike down laws as applied to religious objectors in a range of cases, including—for the first time in history—cases adjudicating vaccine mandates.15 The power of the new free-exercise-as-equality doctrine can be appreciated not only through a vertical lens, comparing the current free exercise vaccine-mandate cases with previous similar cases, but also through a horizontal lens, comparing free exercise challenges to vaccine mandates with constitutional challenges to vaccine mandates on other grounds. While every federal court in the country faced with the issue has rejected vaccine-mandate challenges brought under free-speech or substantive-due-process theories, free exercise challenges have succeeded in securing wins for vaccine objectors.16

Part I of this Essay situates Fulton within the Court’s recent project of reconceptualizing free exercise as a broad equality right, elevating religion to “most favored nation” status. Part II of this Essay briefly traces the evolution of the individualized-exemptions free exercise doctrine and argues that the Court in Fulton adopted a novel, more capacious interpretation of the rule in keeping with its increasingly expansive view of the Free Exercise Clause. Part III describes and analyzes how federal-court judges have used the new individualized-exemptions doctrine to strike down pandemic-related public-health measures as applied to religious objectors. Finally, Part IV considers the implications of the Court’s new individualized-exemptions doctrine for legislation more generally, including for government employers that must comply with statutory schemes that require government employers to provide individualized accommodations, such as the Americans with Disabilities Act, Title VII, and even the Religious Freedom Restoration Act.

I. “most favored nation”: the new free exercise clause

In order to understand Fulton’s significance, the decision must be contextualized within the broader project of casting free exercise as an equality right. For roughly three decades before the Court’s 1990 decision in Employment Division v. Smith, the Court interpreted the Free Exercise Clause as providing a liberty right that triggered strict scrutiny of any law that incidentally burdened religiously motivated activity.17 Then, in Smith, the Court narrowed free exercise by deeming it a “mere” equality right against religious discrimination.18 Proponents of religious freedom immediately began advocating for overturning Smith and returning free exercise to its more elevated status as a liberty right.19 But some scholars and jurists also sought to recast Smith’s central holding as creating an expansive equality right by insisting on a capacious interpretation of “religious discrimination.”20

While equality is susceptible to a wide range of meanings, the interpretation of religious equality that was championed by these religious-freedom advocates21 —and that has recently been adopted by the Supreme Court—is arguably among the more radical interpretations possible.22 Under the so-called most-favored-nation view of religious equality23 that the Court endorsed in several of its emergency docket COVID-19-related lockdown order cases,24 if a general rule provides essentially any secular exemption, the government must also extend an exemption to religious individuals and institutions.25 Since nearly every rule impinges on at least some individuals’ religious sensibilities and has at least one secular exemption, under the most-favored-nation doctrine, the exception is the rule for religious individuals and institutions.26 And this rendering of free exercise as an equality right not only triggers strict scrutiny in essentially every instance but also virtually guarantees victory for religious objectors. The very logic that implicates strict scrutiny—that a secular interest or entity is exempt, but a religious one is not—automatically locks in the conclusion that the lack of an exemption for religion is either not compelling, not narrowly tailored, or both.27 It should come as no surprise that in just a few short years, this doctrinal shift has succeeded not only in tacitly reversing Smith, but also in establishing a new Free Exercise Clause altogether, one that pre-Smith religious plaintiffs would envy. Whereas pre-Smith, federal courts at every level regularly sided with the government when faced with challenges to incidental burdens on religion, in the post-Smith religious-equality world, religious plaintiffs win far more often.28

Fulton’s individualized-exemptions rule must be understood as a subset of the most-favored-nation doctrine and as a part of the broader project of leveraging free exercise as an expansive equality right. The muscled-up free-exercise-as-equality doctrine, which first appeared in the form of the most-favored-nation interpretation of religious discrimination, now underlies the Supreme Court’s anti-any-and-all-discretion rule. According to this doctrine, in the name of equality, any time the government reserves any discretion regarding whether to exempt anyone or anything from a general rule, it cannot deny an exemption to religious actors or interests—even if it has never actually extended an exemption and has no intention of extending one, either for religious or secular interests.29

II. the rise of the individualized-exemptions rule

The individualized-exemptions rule has its roots in Sherbert v. Verner, decided in 1963 at the height of the Warren Court’s rights-protective era.30 In Sherbert, the Court held that laws that incidentally burden individuals’ religious exercise are subject to strict scrutiny.31 To that end, the Court in Sherbert concluded that the state of South Carolina could not deny unemployment benefits to a Seventh-day Adventist who would not accept employment that required working on his Sabbath, since such a denial would amount to a tax on religious observance.32 And in three subsequent cases, each involving individualized “good cause” evaluations, the Court required the state to grant unemployment benefits to members of minority religions who would not accept employment requiring them to work on their Sabbath.33

In 1990, however, the Court scaled back its free exercise jurisprudence. Writing for the Court, Justice Scalia announced in Smith that Sherbert’s rule did not apply to neutral and generally applicable laws—that is, to laws that do not discriminate against religious individuals or practices. Smith thus converted free exercise, which had previously provided protection against even incidental burdens on religious practice, from a liberty right into an equality right.34 Attempting to distinguish Sherbert and several subsequent cases involving unemployment benefits, the Court in Smith explained that these previous cases were unique.35 According to the Smith Court, when states operate unemployment-benefits programs, they often require “individualized governmental assessment[s] of the reasons” why the unemployed claimant has turned down available work.36 If a state assesses individuals’ reasons for turning down available work and evaluates secular reasons, but not some religious reasons, as “good cause,” that scheme constitutes a system of individual exemptions” such that it is unconstitutional for the government to “refuse to extend that system to cases of religious hardship without compelling reason.”37

Smith’s dictum that individualized-exemptions regimes trigger strict scrutiny is thus exceedingly narrow.38 It applies only in circumstances involving government benefits that require individual assessments of applicants’ requests and the reasons underlying them, where it is possible (if not probable) that the government will be less sensitive and attentive to religious concerns—especially those based on minority, idiosyncratic religions.

Before it decided Fulton in 2021, the Court had applied Smith’s individualized-exemptions dictum only once, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.39 The Court in Lukumi closely analyzed whether the City of Hialeah intentionally discriminated against the Afro-Cuban Santerian Church of Lukumi Babalu Aye by gerrymandering an “unnecessary animal-killing” ordinance to apply almost exclusively to one small religious sect’s practice of religious slaughter. Tucked away in its twenty-five-page opinion, the Court explained (in three sentences’ worth of analysis) that because the ordinance “require[d] an evaluation of the particular justification for the killing [to determine if the killing was “necessary”], [it] represent[ed] a system of ‘individualized governmental assessment of the reasons for the relevant conduct.’”40 And because the city’s “application of the ordinance’s test of necessity devalue[d] religious reasons for killing by judging them to be of lesser import than nonreligious reasons. . . . [the church’s] religious practice [was] singled out for discriminatory treatment” in violation of Smith’s individualized-exemptions rule.41 The Court’s application of Smith’s dictum in Lukumi was an afterthought and is easily missable among the numerous more fleshed-out bases for the Court’s holding.42

Taking their cue from the Supreme Court, lower courts shied away from relying on Smith’s individualized-exemptions dictum. Likely because they understood the “doctrine” to be narrow, lower federal courts drew on it rarely and fleetingly.43

Free exercise scholars likewise interpreted Smith’s individualized-exemptions dictum as “extremely narrow and generally unhelpful.”44

The Fulton Court changed course, injecting doctrinal muscle into Smith’s dormant individualized-exemptions dictum. In Fulton, Catholic Social Services (CSS), a Catholic adoption agency, sued the City of Philadelphia for refusing to refer foster children to it after the agency confirmed it would not match children with same-sex couples—a policy that violated the antidiscrimination provision in the city’s contract.45 The agency argued that the city’s refusal to permit the adoption agency to place children amounted to discrimination against religion.46 Specifically, the agency contended that because the city had discretionary authority to grant “exemptions” to the antidiscrimination provisions in its contract, the city had established an “individualized exemptions” regime.47 The Court agreed. Writing for the majority, Chief Justice Roberts focused on the terms of the city’s contract with foster-care agencies, which forbade discrimination based on sexual orientation but permitted city officials to make exceptions to that prohibition.48 He concluded that this wiggle room doomed the city’s requirement that the Catholic agency must not discriminate against same-sex couples.49

Sherbert, its progeny, and Lukumi all involved required government “assessments” of the “reasons” for the actions in question—in the unemployment-benefits cases, why the individual would not accept available work, and in Lukumi, why the individual felt it was “necessary” to slaughter an animal.50 Many commentators understood these cases to be driven by a heightened concern that the government would not appreciate lesser-known religious beliefs or practices and, as a result, would not consider practices grounded in those beliefs as “good cause” or “necessary”—inherently vague and indeterminate subjective standards—while it would do so for secular and more well-known religious beliefs and practices.51 Jurists similarly understood this concern as the basis for the individualized-exemptions doctrine embedded in these cases. For example, Chief Justice Burger, in Bowen v. Roy, characterized the government’s actions in the unemployment cases as demonstrating more than just insensitivity toward the Seventh-day Adventists and Jehovah’s Witnesses, the religious minorities involved in these cases.52 According to him, “to consider a religiously motivated resignation to be ‘without good cause’ tends to exhibit hostility, not neutrality, towards religion.”53 It was the government’s assessment of select personal reasons, but not those grounded in minority religious beliefs, as “good cause” that led the Court to demand close scrutiny of the state’s refusal to offer a religious exemption. The Smith Court also read the unemployment benefits cases this way.54

In Fulton, by contrast, there was no evidence that the government had ever evaluated the importance of the agencies’ religious “reasons”; indeed, the government emphasized repeatedly to the Court that it believed it could not—and therefore never did and never would—exempt any agency whatsoever from its antidiscrimination policy for any reason.55The Court, however, insisted that the contract theoretically permitted discretion. On that thin basis, the Court applied its new antidiscretion rule and held that the government’s refusal to grant an exemption to CSS contravened the Free Exercise Clause. The Court’s reasoning was short and blunt: the sheer fact that (according to the Court)56 the Commissioner could grant exceptions meant that “the City may not refuse to extend” one for “religious hardship without compelling reason.”57

Absent any actual concerns about unjustified discrimination against religion, the Court’s reasoning can be made sense of only on most-favored-nation grounds.58The most-favored-nation rule dictates that whenever the government provides exemptions for secular interests, it must also provide them for “comparable” religious interests.59 Fulton’s new individualized-exemptions doctrine extends that rule to potential exemptions, that is, the doctrine mandates religious exemptions even when the government might be retaining discretion to grant exemptions, regardless of whether it actually does or does not provide them. And the uncompromising logic of most-favored nation carries over to strict scrutiny. According to the Fulton Court, it could not be said that the government has a compelling interest “in denying an exception” when it generally “mak[es] them available.”60 Since the government cannot claim its “polic[y] can brook no departures,” the policy is either not compelling, not necessary, or both.61

By holding that government discretion to offer exemptions from contractual provisions requires the government to grant exemptions to all religious objectors, the Court effectively rendered countless government decisions and actions constitutionally infirm as applied to religious objectors. Take essentially all government contracts. Contracts are by their very nature individualized, and drafting them involves case-by-case determinations, which in turn involve discretion.62 Fulton’s formalistic rule would seem to subject to strict scrutiny all requirements in all government contracts with all religious objectors.63 Indeed, in a bizarre twist, even Smith—which Fulton purported to merely be upholding—cannot be explained on Fulton’s terms, as the underlying facts in Smith involved individualized discretion.64 By the logic of Fulton, Smith—which established the individualized-exemptions doctrine through a rereading of Sherbert and its progeny—should have come out the other way.

III. individualized-exemptions formalism and vaccine mandates

Debate over Fulton’s expansive individualized-exemptions doctrine erupted almost overnight. To some, the doctrine was “[h]ighly questionable” and served only as an act of “convenience” that “allow[ed] the Court to rule in favor of CSS without addressing the question of whether Smith should be overruled.”65 To others—most notably Professors Douglas Laycock and Thomas Berg—the Court’s reasoning was unimpeachable. In their view, Philadelphia’s contract squarely “fell within the principle [of individualized exemptions] dating back to Smith.”66

But nearly all insist on viewing Fulton as a narrow decision.67 Recent free exercise challenges to vaccine mandates help put into relief that this reading is wrong. In addition to revealing Fulton’s radicalness, the vaccine challenges also demonstrate the consequences that flow from that radicalness. Relying on Fulton’s individualized-exemptions rule, judges appointed by both Republican and Democratic presidents
have68—for the first time in history69—struck down vaccine mandates as applied to religious objectors. This Part illustrates how they have done so. Section III.A shows how courts have applied Fulton’s individualized-exemptions doctrine, adopting, as the Court did in Fulton, a highly formalistic-textualist interpretation of the government’s exemptions schemes to find one even where the government insisted none existed. Sections III.B and III.C demonstrate how courts have extended Fulton even to governmental “discretion” regarding factual determinations, including whether an individual’s religious belief is sincerely held.

A. Court-Invented Assessments as Individualized Exemptions

A flurry of recent free exercise vaccine-mandate cases lays bare the capaciousness of Fulton’s new free exercise doctrine and its consequences. In Dahl v. Board of Trustees of Western Michigan University, for instance, several student-athletes sued Western Michigan University (WMU), which had denied their requests for a religious exemption from the university’s vaccination mandate.70 The students-athletes—along with all athletes at WMU—received a text message in mid-August 2021 informing them that “all student-athletes” must provide proof of at least one dose of a COVID-19 vaccine “to maintain full involvement in the athletic department” and that “[m]edical or religious exemptions and accommodations will be considered on an individual basis.”71

The plaintiffs in Dahl submitted requests for religious accommodations, asserting that their sincerely held religious beliefs would be compromised if they were to receive the required vaccination and asking that they be allowed to continue playing competitively while remaining unvaccinated.72 WMU rejected their requests to continue playing,73 explaining that it had a “compelling interest” in requiring all student-athletes to be vaccinated in order to prevent COVID-19 outbreaks among team members.74 However, WMU granted the students-athletes the accommodation of maintaining their scholarships despite their noncompliance with the department’s vaccine policy.75

The District Court for the Western District of Michigan found that WMU had “exercise[ed] discretion” in meting out these accommodations and that its policy was therefore not “generally applicable.”76WMU insisted in its briefs that the policy it had broadcasted via text message required vaccination “to maintain full involvement in the athletic department,” and that both the school’s medical and religious exemptions pertained specifically and exclusively to the retention of scholarships (a key aspect of “full” membership at the athletic department) and not to participating in sport
77 Unvaccinated students who had a medical or religious reason to oppose the vaccine mandate could retain their scholarships, but the policy never contemplated that they could participate in athletic activities. This clarification was borne out by WMU’s subsequent actions—it granted “exemptions” exclusively with respect to scholarships.78 But the district court rejected this explanation, concluding that the
language of the text message that WMU sent the student-athletes regarding its religious and medical exemptions covered both types of “accommodations”—maintaining scholarships and allowing continued participation on their respective teams while remaining unvaccinated.79

The Sixth Circuit agreed.80 In doing so, it dismissed as irrelevant WMU’s argument that it had refused to allow any unvaccinated players to participate in sports activities, including medically contraindicated students.81 Fulton had already disposed of that “defense,” the Sixth Circuit explained.82 As of Fulton, what must be “put front and center” are “the terms of the policy itself”; the only relevant question is whether the policy facially provides for the “creation of a formal mechanism for granting exceptions.”83 Because WMU’s vaccine policy did so, it was not “generally

It is important to note that WMU argued not only that it did not exempt any student from its general policy against actively playing sports while unvaccinated, but also that doing so was not even an option. As it did in the district court, WMU explained to the Sixth Circuit that its policy forbade “all unvaccinated student-athletes from participating in sports” and that it invited students “with medical or religious objections” to submit requests for accommodations only with respect to “retain[ing] their scholarships and avoid[ing] dismissal and discipline.”85 But the court dismissed WMU’s clarification out of hand. Despite WMU’s repeated entreaties to the court that it had never made available to anyone even the possibility of participating in athletic activities unvaccinated, the Sixth Circuit concluded that “[t]he policy’s text [] says nothing of the sort.”86 And because WMU, on the Sixth Circuit’s telling, had established a scheme for individualized exemptions from its “no playing competitive sports if not vaccinated” policy, it was unconstitutional for it not to extend the allegedly available exemption to the students asserting religious objections to the vaccine.

For the district court and the Sixth Circuit, a government entity’s use of the talismanic words “accommodations will be considered on an individual basis” was enough to render its lack of exemptions for religious objectors unconstitutional.87 It did not matter which potential accommodations the government contemplated. These courts took their cue from Fulton, in which the Supreme Court similarly adopted a highly formalistic-textualist, not to mention strained, interpretation of the city’s “discretionary exemptions” contractual provision.88 Following the Supreme Court’s lead, the courts concluded that words alone can and should be construed to the broadest extent possible and applied to the widest range of potential “accommodations,” despite any and all evidence and repeated representations to the contrary.89

And it does not matter what type of inquiry the government conducted “on an individual basis.” WMU had explained that it was evaluating sincerity: when it invited students to submit requests for religious exemptions and stated it would evaluate them individually, it explained that its case-by-case inquiry was necessary to confirm that each student’s religious opposition was sincere.90 But the courts still concluded that “words alone” are controlling—regardless of all evidence of what these words actually referred to and instituted. Echoing the Fulton Court,91the district court and the Sixth Circuit reasoned that so long as there is any possible construal of those words as exceptionally broad, they will be interpreted formalistically to impute a theoretical individualized-exemptions scheme and render the lack of exemptions for religious objectors to vaccine mandates unconstitutional.

Indeed, some courts have gone even further. In Thoms v. Maricopa County Community College District, two nursing students sued their college for rejecting their requests for religious exemptions from the school’s in-person clinical-rotation requirement.92 The nursing school had a vaccination requirement for on-campus instruction and an in-person clinical-rotation requirement for graduation—exemptions were available for the former but not the latter. The rotation clinic to which the students were randomly assigned, the Mayo Clinic, had a strict vaccine requirement with no religious exemptions.93 When the students requested a religious exemption to the college’s vaccination requirement, the college granted it and allowed them to participate in on-campus instruction and activities while unvaccinated. But the school denied the students’ requested religious accommodation as to the school’s in-person clinical-rotation requirement.94 The district court held that the school’s “process for reviewing religious accommodation requests” constituted an “individualized mechanism.”95

It must be emphasized that the community college never so much as insinuated it would consider requests for exemptions from its in-person clinical requirement. In fact, it went out of its way to make clear that “accommodations may only be granted in the academic spaces (classrooms, labs, college campuses)” or in the form of “waivers of the tuition refund or withdrawal policies.”96And the students received those accommodations in spades: all 124 religious students who requested accommodations received them.97 But the students also asked for an additional accommodation not mentioned in the school’s vaccination policy: that the school waive its in-person clinical requirement for students who object on religious grounds to taking the vaccine and are randomly placed at clinics requiring vaccination.98 For the court, it was enough that the school “denied [the students’] requested accommodations” (responding to their specific requests) that they be exempt from the school’s in-person clinical rotations requirement.99 When the school replied to that specific request, its response metamorphosed into an individualized-exemptions scheme regarding the requested accommodation. In other words, even when the government is clear about what its exemptions procedure covers, if requests are made regarding quite literally anything and the government responds, the response itself can be—and according to at least some courts will be—construed as an individualized-exemptions scheme.

B. Factual Assessments as Individualized Exemptions

In addition to the formalistic antidiscretion rule adopted by the courts discussed above—counting any procedure that provides any exemptions at all as an individualized-exemptions scheme—recent vaccine-mandate decisions illustrate that Fulton can be read to require an even more radical outcome: that merely confirming basic facts can constitute individualized exemptions, rendering the failure to exempt any religious objector presumptively unconstitutional.

In Does 1-6 v. Mills, several healthcare workers and a provider challenged Maine’s emergency rule requiring all employees of designated healthcare facilities to be vaccinated against COVID-19.100 The plaintiffs contended that the vaccination requirement violated their free exercise rights because it did not allow exemptions for religious objectors. According to the plaintiffs, the sheer availability of medical exemptions rendered the government’s vaccine mandate an individualized-exemptions scheme. In response, Maine argued that the government did not use discretion when assessing medical exemptions; instead, exemption assessments were made by the workers’ own “healthcare providers” who “utilize[d] their professional judgment in deciding whether to sign a written statement in support of a medical exemption.”101

The District Court for the District of Maine, and later the First Circuit, held that the emergency rule was “generally applicable” because it did not involve individualized exemptions.102The First Circuit distinguished the case at hand from Sherbert, explaining that while in Sherbertthe government had discretion to decide whether ‘good cause’ existed to excuse the requirement of an unemployment benefits scheme,” in the case at hand there was only a “single objective exemption.”103 According to the court, the government’s choice to exempt the entire category of medically contraindicated healthcare workers from its vaccine mandate could not be said to be an “individualized exemptions scheme.”104 And because it is the nongovernment healthcare providers who assess the individual worker’s condition when deciding whether a particular individual merits the “general” and “categorical” medical exemption, that assessment likewise could not be said to be an “individualized exemptions scheme” under the Free Exercise Clause.105

It is worth pausing to reflect on each of these distinctions. For the First Circuit, it was meaningful that the medical exemptions were a priori provided for a single category of people—that is, anyone with a verified medical reason to not take a COVID-19 vaccine. Sherbert involved unemployment benefits conditioned on an individualized assessment of all applicants as to whether they availed themselves of obtainable employment and, if they did not, whether they did so with “good cause”—an inherently vague and subjective standard.106 In contrast, the “good cause” determination in Mills was made by the state ex ante for an entire category of people. Maine determined that being medically contraindicated was “good cause” not to be vaccinated. All that remained to determine was whether a particular individual was in fact medically contraindicated. And that assessment—which, according to the First Circuit, is purely objective—was made not by any Maine officer but by third-party private healthcare providers. Maine merely had to assess whether the individual bringing the exemption request had in fact been evaluated by a medical professional who had in fact determined that the individual was medically contraindicated.

These differences were unconvincing to Justices Gorsuch, Thomas, and Alito, who dissented from the Supreme Court’s rejection of plaintiffs’ request for emergency
107 According to the dissenting Justices, in an opinion penned by Gorsuch, Fulton’s rule that “a law fails to qualify as generally applicable, and thus triggers strict scrutiny, if it creates a mechanism for ‘individualized exemptions’ . . . applie[d] to Maine’s regulation.”108 Their reasoning, which comports with Fulton’s broad individualized-exemptions doctrine, was simple: the “State’s vaccine mandate is not absolute; individualized exemptions are available.”109

Although commentators rushed to decry Gorsuch’s dissent as “alarming,”110 it should not have come as a surprise. The opinion did not represent a radical break from controlling law; rather, Gorsuch was applying the only several-months-old unanimous decision in Fulton. According to Fulton’s holding, any amount of discretion regarding any potential exemption for any category of persons renders any law without religious exemptions presumptively unconstitutional. And the sheer availability of a secular-based exemption—even if only theoretical—compels the conclusion that withholding religious exemptions is not necessary, thereby guaranteeing the government regulation cannot meet strict scrutiny.111 The object of some commentators’ ire was the “[t]hree Supreme Court justices”112 who, according to a growing consensus, constitute the far-right of the Court.113 But it would perhaps be more appropriate for commentators to focus their attention—and alarm—on the purportedly “moderate” Fulton decision penned by Roberts and signed by the entire Court, a decision that is of a piece with the Court’s rapidly expanding religious-equality doctrine.

These three Justices would have applied Fulton to the facts in Mills, which explicitly involved discretion regarding medical exemptions only. Fulton’s application to Mills may not have been required, but it was certainly not foreclosed given the most-favored-nation logic embedded in Fulton. According to that logic, any discretion—even purely theoretical discretion—is fatal when the government does not provide exemptions for religion.114 Tellingly, two additional Justices went out of their way to signal they might well agree with the dissent, as have other federal judges.115

C. Sincerity Assessments as Individualized Exemptions

With such a formalistic individualized-exemptions doctrine in place, it is hard to see how the new Free Exercise Clause would permit a court to evaluate even the sincerity of objectors’ religious beliefs, as such evaluations necessarily involve a degree of “factual” discretion. And indeed, some courts deciding vaccine-mandate challenges have found that the Free Exercise Clause does not permit the government to evaluate the sincerity of religious beliefs.116 For example, in Grantonz v. Earley, two employees of the Cleveland Municipal Court—a bailiff and a court reporter—sued their employer over its denial of their requests for exemptions from the municipal court’s COVID-19 vaccine mandate.117 In connection with its vaccine mandate, the municipal court had instructed employees who believed they had a “qualifying medical condition or sincerely held religious belief” that would prevent them from receiving the vaccine to contact Human Resources to initiate the process for obtaining an exemption.118 The two plaintiffs submitted religious-exemption request forms, which were denied.119 The municipal court had found the two employees’ requests to be based on “personal, secular beliefs and not upon sincerely-held religious beliefs.”120

The first plaintiff, the municipal court explained, declined to answer whether she had previously been vaccinated over the past five years and thus failed to comply with its inquiry into the basis of her claimed exemption.121 The first plaintiff also submitted a statement from her husband relating only that she had “decided that it is in her best interest to forego the COVID-19 vaccine at this time.”122 The second plaintiff had stated that his religious beliefs prevented him from taking some but not all vaccines.123 He provided a statement from a religious elder asserting that members of their religion decline vaccines that they “feel may be dangerous to [their] bodies [or] detrimental to [their] health.”124 The plaintiff also declared that “[he] and many others will be endangered by these MRNA gene therapy untested ‘vaccines’ and [his] health would be greatly compromised by ingesting them.”125 The municipal court determined that the plaintiffs’ requests for exemptions were “not based upon sincerely held religious beliefs but instead [on] concerns about safety of the vaccine.”126

The District Court for the Northern District of Ohio concluded that because the municipal court’s policy “provide[d] for an exemption process” whereby an employee must contact the municipal court’s “HR Department and [] complet[e] an exemption request form,” it had “set[] up a mechanism for exemptions which are granted at the municipal court’s discretion[.]”127 As a result, the municipal court’s vaccine mandate was “not generally applicable.”128 On the Grantonz court’s analysis, any amount of discretion—even when the “discretion” pertains to facts (rather than value, as was the case in Sherbert) and even when those facts pertain to establishing the sincerity of the religiously based objection to the vaccine mandate—makes it unconstitutional to apply a general policy to religious objectors. According to the Grantonz court as well as other courts,129 the government must extend religious exemptions (or face strict scrutiny) even when the objection may not be sincerely religious in nature; under this view, it is impossible for the government to evaluate the religious nature and sincerity of a claim without triggering strict scrutiny.

IV. implications

The free exercise vaccine-mandate cases demonstrate that the Supreme Court’s new doctrine, couching free exercise as an equality right, is far more protective of religious objectors than was the Court’s previous doctrine framing free exercise as a liberty right. Indeed, this new doctrine has already achieved what was previously thought unfathomable: conferring upon religious objectors the right of vaccine refusal.

Some scholars have argued that regardless of how robust the Supreme Court’s new individualized-exemptions doctrine is, it will not present a serious impediment to government regulation as the doctrine at most triggers strict scrutiny, which need not be fatal.130 On this view, courts can still uphold government regulations that are necessary—including, for example, measures to stem a deadly pandemic.131 While this view has been adopted by some of free exercise’s staunchest supporters, including Professor Laycock, it has already been decisively refuted.132

In a New York Times guest opinion essay written early in the pandemic, Professor Laycock insisted that even an expansive view of free exercise as equality allows the government to impose “[p]andemic restrictions” on houses of worship.133 Laycock emphasized that “no court has ever protected” “religious objectors” from “vaccination” and other pandemic-related mandates.134 “Covid-19 kills some and permanently injures others; the threat to human life is real and immediate,” Laycock explained.135 Thus, “[t]hose who flout the rules endanger everyone around them, and this is sufficient reason for regulating even a worship service.”136 Laycock was unperturbed by the robust free-exercise-as-equality right he had promoted for decades.137 As he saw it, strict scrutiny could—and would—bail out the government.

Laycock and others who believe strict scrutiny can serve as a reasonable backstop to the new free exercise doctrine138 overlook the fact that once a court establishes that the government has acted discriminatorily against religion, that court will likely not conclude the government has a necessary reason to discriminate.139 Laycock imagined the government could survive free exercise challenges by invoking self-evident, general justifications for lockdown orders and vaccine mandates.140 But such reasons have already proven insufficient for courts asking why the government has no choice but to discriminate against religious objectors when it countenances exemptions for nonreligious objectors.141 General justifications for mandates are irrelevant in such circumstances; only precise reasons why the government cannot exempt the religious objectors will do. This directive was made clear by the Court in Fulton142—a decision Laycock enthusiastically celebrated, wishing only that the Court had gone further.143

Fulton’s supporters have resisted acknowledging the radical change the decision represents. When free exercise challenges to vaccine mandates began making their way through federal courts across the country, Laycock once again expressed his “belie[f] that under the general law of religious liberty . . . the government has an easy case to refuse religious exemptions from vaccines against infectious disease.”144 When one of the first district courts to address a free exercise vaccine-mandate challenge held that a public university could not require student-athletes with religious objections to comply with its vaccine mandate, Laycock dismissed it out of hand.145 The decision in Dahl, he asserted, was “unlikely to stand up through further proceedings and appeal, since every judge to encounter such an issue in the past has ruled the other way.”146

But thanks in no small measure to the very free-exercise-as-equality doctrine Laycock has promoted, the “past” is incomparable, if not completely irrelevant, to the
“present.”147 Under the new free exercise jurisprudence adopted by the Court in Fulton, even the mere potential for secular exemptions automatically renders the lack of any religious exemption unconstitutional. If the government can countenance providing individualized exemptions from an emergency vaccine mandate, it cannot claim to have a compelling interest that can be met only by denying religious exemptions. Less than one month after Laycock expressed his optimism about the free exercise vaccine-mandate cases, the Sixth Circuit issued a unanimous decision in Dahl upholding the district court’s ruling that a public university must exempt religious objectors from its vaccine mandate.148

Moving forward, in light of the individualized-exemptions rule adopted by the Court in Fulton, any number of government policies could face credible free exercise challenges. Take for example the government’s attempt to obey basic requirements of federal antidiscrimination statutes. It is hard to see how a government employer will be able to comply with the explicit individualized-accommodations requirements under the Americans with Disabilities Act or Title VII without running afoul of the “new” Free Exercise Clause, unless the government grants every employee’s request that is grounded in religion.149 Merely by individually evaluating whether they can (and must) provide Title VII religious accommodations, government employers will find themselves in an exceedingly difficult, if not impossible, position: do not consider religious-accommodation requests and violate Title VII, or consider religious-accommodation requests from any employee and be required to provide accommodations to every religion-based request on the religious employee’s own terms.150

Indeed, the Supreme Court’s adoption of a most-favored-nation rule in its emergency-docket COVID-19 lockdown cases has already prompted one federal district court to strike down Title VII as applied to religious employers. The federal court for the Northern District of Texas concluded that because Title VII “exempts” businesses of fewer than fifteen employees, it must also exempt all employers who object to its antidiscrimination requirements on religious grounds.151 And, using a similar most-favored-nation logic, but in this instance resting on Fulton’s new individualized-exemptions doctrine, the Second Circuit (among other courts152) has held that the discretion afforded government employers under Title VII renders decisions to not grant religious accommodations presumptively (and also actually) unconstitutional.153 Finally, in an ironic twist, one federal court has held that applying the Religious Freedom Restoration Act—the federal statute intended to protect the free exercise of religion—itself violates the Free Exercise Clause whenever the government denies any request for a religious exemption under the statute.154 The rationale underlying this holding naturally flowed from the logic of Fulton: because it necessarily exercises some degree of discretion when it decides individualized-exemption requests under RFRA, the government cannot constitutionally refuse to grant any request for a religious exemption.


Fulton’s expansive individualized-exemptions doctrine—which builds on earlier efforts to interpret free exercise as an expansive equality right—suggests that the ongoing debate over whether Smith should be overruled may be misplaced. Those who call for Smith’s demise typically do so on the assumption that the Supreme Court’s pre-Smith interpretation of free exercise as a liberty right is broader and more protective of religion than the post-Smith interpretation of it as a “mere” equality right.155 It is widely accepted that the liberal Justices signed on to Fulton to avert a broader decision overruling Smith altogether.156 On this view, these Justices traded their votes in exchange for a narrower holding “merely” upholding Smith’s individualized-exemptions dictum rather than overturning Smith.157

But, as this Essay has argued, that apparent compromise was no compromise at all. Perhaps unwittingly, in exchange for Smith’s survival, the liberal Justices helped the Fulton Court entrench a free-exercise-as-equality jurisprudence that has already proven more deferential to religious freedom claims as compared to the Court’s pre-Smith jurisprudence. The implications of that new jurisprudence can already be seen in lower court decisions granting—for the first time in history—a right to refuse vaccination on free exercise grounds. It remains to be seen what the further implications of this subtle but serious expansion may be. But if the logic and principle of this expanded doctrine continue to be extended to other areas of the law, the consequences could be far reaching.

Nonresident fellow at the Stanford Constitutional Law Center; Nonresident fellow at the University of Lucerne; Adjunct Professor of Law at New York University School of Law. J.D., magna cum laude, Harvard Law School; Ph.D., New York University; M.A., Yeshiva University. Many thanks to Will Baude, I. Glenn Cohen, Linda Greenhouse, Laura Lane-Steele, Adrian Loretan, Michael McConnell, Jim Oleske, Micah Schwartzman, Mark Tushnet, and Lael Weinberger for very helpful comments, to Celine Rohr for excellent research assistance, and to the editors of the Yale Law Journal for superb editing.