When Religious Liberty Collides with Public Health

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Under recently announced Supreme Court constitutional ground rules, the government violates the First Amendment when, without a compelling justification, it treats religious behavior better or worse than it does comparable secular activities. Unlike the guarantee of equal treatment promised to racial minorities under the Fourteenth Amendment’s equal protection clause, which requires proof of government purpose to treat individuals differently because of race, the Supreme Court’s current rule of religious–secular equality does not require a showing of government purpose. Instead, a reviewing court simply compares the legal treatment of the secular activity in question with the treatment of the most comparable religious activity. If the legal treatment differs, constitutional alarm bells go off.