In a series of cases over the past year, the U.S. Supreme Court upheld then struck down COVID-19–related restrictions on worship in various states across the country. Those decisions clarified that, under the Free Exercise Clause, laws burdening religion aren't “generally applicable” when they treat religious conduct less favorably than comparable secular conduct. But they also relied on controversial claims that religious gatherings were comparable to places like grocery stores in their likelihood of spreading the virus. This article offers a different perspective. In addition to the rule about comparators, general applicability also contains a second rule. Where a law requires officials to consider the religious reasons for conduct as a precondition for regulating it, the law isn't generally applicable and ought to be subject to heightened scrutiny. The Court mostly passed over that requirement in the COVID-19 church-closure cases. But rightly understood, it may have provided an alternative path for resolving them—and one that didn't depend on controversial comparisons between churches and shopping centers. Instead, focusing on this second aspect of general applicability would have yielded a commonsense conclusion: where a law or policy grants favored treatment for activities it explicitly deems “essential,” “critical,” or “life-sustaining,” one of those things must be religion, absent compelling reason to the contrary. And understanding the rationale behind that conclusion provides important insights about the meaning of the Free Exercise Clause and several other issues at the heart of the First Amendment.

The U.S. Supreme Court's decision in Espinoza v. Montana Department of Revenue, holding that religious schools cannot be excluded from a state program of financial aid to private schools, is another incremental step in the Court's long-running project to reform the constitutional law of financial aid to religious institutions. There was nothing surprising about the decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down. But the Court has been steadily marching away from that rhetoric for thirty-five years now. The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choices and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses—to minimize the government's interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.