In this Note, I argue that Justice Kavanaugh’s most favored nation test for religious exemptions actually differs from the one employed by the majority of the Court in Tandon. The majority’s formulation of the test is vague and explicitly requires courts to engage in a fact-intensive comparability analysis. Practically, lower courts applying Tandon to religious exemption questions have exploited this comparability step to rule against religious claimants generally, but more specifically to deny them strict scrutiny. Because the Tandon test was formulated to apply to all free exercise claims, the test is necessarily framed in more general terms and also imposes on religious claimants an additional burden before they can benefit from strict scrutiny analysis. Justice Kavanaugh’s analysis, however, is less ambitious in scope, applying only to a subset of free exercise claims, and is formulated to provide more rigorous protection of First Amendment rights. As a result, it would provide a more consistent tool for deciding religious freedom cases and would be more solicitous of religious rights. In Part I, I lay out the legal and academic background necessary to understanding the most favored nation theory of exemptions that Justice Kavanaugh championed and that the Court applied in the pandemic cases. Then, in Part II, I turn to the majority’s approach to the most favored nation theory in Tandon and contrast it with Justice Kavanaugh’s description of the theory, illustrating the similarities as well as the differences in how the two approaches emphasize the necessity of comparability between the religious and secular activities in question. Finally, in Part III, I will examine four lower court decisions that have applied the Tandon majority’s test to illustrate the shortcomings in the test as currently applied and to demonstrate how these cases would have led to different, religious-friendly, results under Justice Kavanaugh’s test.



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