I will conclude this series of posts by considering the variants of MFN that affect the way strict scrutiny is applied. MFN-6, ubiquitous in the Covid cases, makes strict scrutiny impossible to satisfy, by treating as equivalents regulated actions that are radically different in their effects on the pertinent state interests. MFN-7, proposed by Alito in Little Sisters of the Poor v. Pennsylvania and possibly embraced by the Court in Fulton v. Philadelphia, sweeps away the state interest more summarily, by declaring that however urgent it may be, it cannot possibly be compelling if the state has allowed exceptions to it.
Tandon says that "whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue." This judgment is distorted if the Court systematically misperceives the comparative burden on government interests, minimizing the damage to the pertinent interest when a religious exemption is sought. This of course distorts what Tandon contemplates, by deeming similar two activities that are not similar in their effect on the asserted government interest—as Justice Kagan put it, requiring "that the State equally treat apples and watermelons."
This move, which we will call MFN-6, has been ubiquitous in the Covid cases. In response to church capacity limits during Covid lockdowns, it became the position of a majority of the Court as soon as Barrett replaced Ginsburg. With respect to vaccines, where religious exemptions could create a public health disaster, it only commands three votes so far.
