Brett Scharffs: Reflections upon the Completion of the Covid-19 & FoRB Webinar Series

Brett G. Scharffs
is Director, International Center for Law and Religion Studies and Rex E. Lee Chair and Professor of Law, BYU Law School[1]

As the global pandemic has raged on — shutting down businesses, cancelling events, and isolating loved ones—we’ve sadly realized that so much of the good in life happens when we are closer than six feet apart. And yet, times of crisis also provide an opportunity for innovation, adaptation, and reflection.

The Coronavirus Stress Test

As I noted at the beginning of this webinar series, Covid-19 is a kind of stress test — and it’s a test that many of our U.S. institutions have been failing.

As for Congress and the President, I have to give them very low marks. Congress has managed to pass several sizeable appropriations, but otherwise seem missing in action. The President has mostly wanted to move beyond the crisis.

The media has also performed poorly, bifurcating into the predictable anti- and pro-Trump camps that distorts everything. I doubt there is any American institution that will have more difficulty regaining trust and credibility than the media. Even legacy providers such as The New York Times and CNN have been deeply tarnished.

The courts have been doing somewhat better, largely by deferring to the political branches of government. Churches and religious organizations have been mixed, but they have performed well in regards to being good citizens, exercising restraint, and offering humanitarian support.

As seen with the killing of George Floyd and its aftermath, the police have performed poorly. It is noteworthy that nearly everyone immediately saw racism and systemic patterns of police misconduct in the George Floyd video, rather than something more isolated.

Public health officials, unfortunately, have also earned poor marks. As a group, they seem to go from treating gatherings as completely unacceptable to acceptable overnight (that night was May 25th, Memorial day, the day George Floyd was killed). As enormous public protests arose, a thousand public health officials wrote an open letter[2] declaring that police misconduct and systemic racism was also a public health crisis that justified ignoring social distancing and other health guidelines. After that, the public’s willingness to heed and take seriously public health officials (as well as other politicians and the media) evaporated like morning dew with the rising of a summer sun.

Individuals’ responses have already been mixed throughout the crisis, and the tendency towards overly politicizing everything has been strong. The President has turned wearing a mask into a political referendum—where wearing a mask is a sign of weakness and capitulation, and many have followed his lead to devastating effect. Where I live, we have the very strange experience of walking around a grocery store with a mask on while receiving glares of contempt from people who refuse to wear one.

Throughout everything, I keep coming back to one word: Trust.

Most of our institutions have taken a beating during the pandemic and trust, both individual and institutional, once lost, is difficult to reclaim. This worries me deeply.

Human Rights and the Pandemic

In the wake of the pandemic, we have also seen human rights problems arise globally. Religious minorities have been used as scapegoats—blamed for the coronavirus, or disproportionately held accountable for its spread. Differences and discrimination regarding access to governmental services have become more apparent, as well as differential impacts on different communities.

We have also seen differences in primary and secondary effects. Men are more likely to die from coronavirus than women and children, but when it comes to secondary effects of the virus, women and children are more likely to suffer from domestic abuse as well as social inequalities. The heaviest burden falls on the elderly and those with pre-existing conditions that exacerbate the illness.

Beyond masks, hand sanitizer, and social distancing, our legal toolkit provides a number of time-tested tools for responding to Covid-19—especially when it comes to finding balances between public health and freedom (including religious freedom). The basic tools are: the rule of law, non-discrimination (treating similarly situated religious and non-religious institutions and people similarly), reasonable accommodation, and the compelling state interest test (where important public interests such as public health are measured against something like a necessity test—is there a less restrictive means of vindicating the interest?).

While these tools are familiar, our ability to use them skillfully is much less evident. We need policy makers and public officials at every level (not just courts) to become more adept at utilizing these tools.

2020 Vision – Midyear

When we began this series 14 weeks ago, the watchwords were “flatten the curve.” Three months ago, I accepted the conventional wisdom that this was a matter of all of us sacrificing and acting responsibly for a short time, and then the worst would be over. We did not flatten the curve, however, and the worst—at least here in the U.S.—does not appear to be over. We are experiencing not so much a second wave, but a surge in the first wave that is far worse in the number of infections (the bad news) but lower in mortality rate (the good news). Covid-19 is a stealthy and sneaky foe—many cases are asymptomatic, there is a long gestation period before symptoms manifest (a period when you can still spread the disease), it spreads easily, and it affects people very differently. For the small percentage of people who get very sick, it is a terrible disease and a terrible way to die. For many, the process of recovery is slow and difficult.

Looking Forward

As with so many others, our work at the International Center for Law and Religion Studies has moved almost entirely online. I’ve been very pleased with our efforts (together with our fantastic partners) here in these webinars; our teaching programs have taken place or are taking place online in places as varied as Vienna, Indonesia, and China; we continue to work on law reform projects online in places such as Uzbekistan; our Religious Freedom Annual Review was run as an online event, and reached many tens of thousands of people (rather than the usual 500); and our work with our 16 summer research fellows has been incredibly rewarding.

So what’s my outlook moving forward? Well, I remain deeply committed to the human dignity initiative, emphasizing human dignity for everyone everywhere, and I believe the message of that initiative remains more relevant than ever. For me, that is the simplest formulation I can come up with: All of us, in each of our spheres of influence, must strive to protect and promote the human dignity of all people in all places. Human dignity for everyone everywhere.

I’m not by disposition a “glass half full” person (indeed, I am given to melancholy), so I’m having to work hard to remain optimistic and hopeful. However, I do believe that if we work together, listen to each other, try to be compassionate and patient with each other, things will work out. I am a person of faith, and I believe (at times it seems against available evidence) that love is the strongest power in the universe—stronger than indifference and ignorance, stronger than anger and rage, stronger than hatred and fear, stronger than the coronavirus, or economic turmoil, or racism.

Love will win. I believe it. My challenge is to act as if I believe it.

[1] Thanks to our Center Summer Fellow, Lauren J. Malner, BYU Law School JD Candidate, 2022, for her help with this summary.

[2] Mallory Simon, Over 1,000 health professionals sign a letter saying, Don’t shut down protests using coronavirus concerns as an excuse, CNN (June 5, 2020)

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