MBE Rules · Constitutional Law
Free Exercise — Comparability
Tandon / Fulton
The rule
A law is not generally applicable — triggering strict scrutiny — when it treats any comparable secular activity more favorably than religious exercise or contains discretionary individualized exemptions.
In plain English
The Free Exercise Clause requires that laws affecting religious practices must be generally applicable, meaning they should not favor secular activities over religious ones. If a law provides exemptions for some secular activities but not for religious practices, it is not considered generally applicable and will be subject to strict scrutiny.
Worked example
A city enacts a noise ordinance that prohibits loud music but allows construction work to occur at any hour. A church wants to hold an outdoor service with music but is denied a permit due to the noise ordinance. Since the law treats construction more favorably than the church's religious exercise, it triggers strict scrutiny and is likely unconstitutional.
Memory hook
If a law favors secular over sacred, it’s not generally applicable!
The trap
Exams may present scenarios where a law seems neutral but includes exemptions that favor secular activities, leading students to misidentify the law as generally applicable. Watch for those subtle distinctions!
How examiners test it
Questions often involve a comparison between a law's treatment of religious practices and secular activities, requiring candidates to identify whether the law is generally applicable or not.
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