Cuomo: Justice Kavanaugh Explains the "Most Favored Nation" Doctrine

The per curium majority opinion makes clear that the New York Covid rules were not neural and generally applicable. But Justice Kavanugh's concurring opinion explains the doctrine more clearly:

 The State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably than houses of worship. But under this Court’s precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions....Rather, once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class. Here, therefore, the State must justify imposing a 10-person or 25-person limit on houses of worship but not on favored secular businesses. See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884. The State has not done so.

 

This is the "most favored nation" rule I mentioned in class. We compare religious claimants with the most favored secular entities, not with the least favored secular entities.