By Michael C. Dorf (Cornell Law School)
The disparate impact test disparaged for challenges to racial segregation in employment has achieved new life regarding religious freedom, argues Cornell law professor Michael Dorf. The Court has, he notes reserved heightened scrutiny (fatal in fact strict scrutiny) for state actions that "targeted religion for disfavored treatment". But now, he notes, the Court's emergent orders in the South Bay United Pentecostal Church v. Newsom, Governor of California and other such cases have moved toward s "disparate impact" standard. In such cases the State must prove a "compelling" interest that is served by "narrow" means.
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