Dennis J. Wieboldt III (University of Notre Dame) has posted The Dormant Commerce Clause’s Lessons for Religious Exemptions (59 Creighton L. Rev. __ (2026)) on SSRN. Here is the abstract:
There is an emerging scholarly consensus that the Supreme Court has begun to read the Free Exercise Clause as safeguarding a “most favored right” to religious liberty. Following the Court’s COVID-19-era free exercise cases in particular, scholars have argued that the Court now acts in a uniquely deferential way to religious claimants seeking exemptions from otherwise generally applicable laws. However, those who advance this “most favored right” theory have failed to recognize that the Court’s methodological approach to religious exemption litigation closely tracks the way that it analyzes claims arising under other constitutional provisions that similarly involve exemptions from generally applicable laws. This Article therefore compares the Court’s Free Exercise Clause jurisprudence with its Dormant Commerce Clause jurisprudence to illustrate that recent scholarly claims of religious favoritism are misguided.
Both the Free Exercise and Dormant Commerce Clauses are principally concerned with discrimination—in the first instance against religion, and in the second against interstate commerce. In litigation arising under both constitutional provisions, the Supreme Court begins its inquiry by attempting to identify facial discrimination in the text of a challenged enactment. And, in litigation arising under both provisions, a frequent indicator of such facial discrimination is the government’s decision to exempt a favored entity from an otherwise generally applicable regulatory burden. If the Court successfully identifies this type of exemption, it then proceeds down a predictable path to discern whether the existence of that exemption reveals the government’s constitutionally impermissible disfavor for religion or interstate commerce.
In both the Free Exercise Clause and Dormant Commerce Clause contexts, the Supreme Court understands the existence of regulatory exemptions to create a rebuttable presumption that the government is engaged in a form of constitutionally impermissible disfavoritism. Because the Court in neither context has articulated a per se rule of unconstitutionality once it merely identifies the existence of an exemption, however, the Court enables the government to rebut this presumption when the Court applies means-end scrutiny to a challenged enactment at the second step of its analysis. Only if an exemption significantly undermines the government’s asserted regulatory interest will the enactment be invalidated.
The Supreme Court’s recent application of this methodology to religious exemption litigation is far from remarkable, and certainly does not substantiate scholarly claims of religious favoritism. This is chief among the Dormant Commerce Clause’s lessons for litigating our “most favored right,” and one that should aid lower courts confronted with post-COVID-19 Free Exercise Clause disputes.