Brett G. Scharffs is Rex E. Lee Chair and Professor of Law at Brigham Young University’s J. Reuben Clark Law School and Director of the Law School’s International Center for Law and Religion Studies. He received his JD from Yale Law School, where he was Senior Editor of the Yale Law Journal. He has previously taught at Yale University and the George Washington University Law School. Scharffs has been a visiting professor at Central European University in Budapest, University of Adelaide School of Law in Australia, and Doshisha University in Kyoto. He has helped organize a Certificate Training Program on Religion and the Rule of Law in Beijing in partnership with Peking University Law School’s Center for Administrative and Constitutional Law. He also co-organizes similar programs in Vietnam, Myanmar, and Uzbekistan. He has been working to develop a masters-level course on Shari’a and Human Rights with two universities in Indonesia. Scharffs has written more than 100 articles and book chapters and has made more than 300 scholarly presentations in 30 countries. His field-creating casebook, Law and Religion: National, International, and Comparative Perspectives (co-authored with W. Cole Durham, Jr.) was published by Wolters Kluwer in 2009, with an extensively revised and updated second edition appearing in January 2019. Scharffs was interviewed by Dmytro Vovk
IDEAS AND CONCEPTS BEHIND TEACHING LAW AND RELIGION
What is the place of law and religion courses in legal education?
Traditionally, U.S. law schools have treated law and religion as almost exclusively a course focused on the U.S. experience. There might be a little bit of history, but it focuses almost exclusively on the First Amendment and perhaps a few statutes, such as the Religious Freedom Restoration Act. In our teaching, we had been teaching international students quite frequently, including at Central European University. And what we wanted to do is teach a course that was fundamentally different. It would have a U.S. component, but that would only be one leg of a three-legged stool; the other two components would be international law and comparative law. So when we teach, we do include U.S. materials because they’re important, and they’re illustrative. We focus largely on the Free Exercise Clause and the Establishment Clause. The international human rights component focuses primarily on international human rights instruments, beginning with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and then a lot of cases that have been decided by courts, principally the European Court on Human Rights, interpreting those treaties. For the comparative law piece, we focus on interesting counterparts to the U.S. and international materials, often cases dealing with the same subject matter. In our casebook, we have examples from more than 20 countries. These tend also to be based upon national constitutions and constitutional interpretations by courts, but also statutes and administrative practice. The centerpiece of our approach is believing that we all face a set of common problems. And we can learn to find better solutions in our own homes by being aware of the successes, the contrast, and the failures in other places and other legal regimes.
From a methodological perspective, what are the main problems you discuss in your law and religion courses?
We begin with the problem of definition. How can we define what is and is not a religion? Sometimes it matters, and sometimes it doesn’t. In international human rights law, for example, it’s very clear that protections are for freedom of religion or belief. So it’s important to understand that whether something fits a definition of religion or not should not matter at all because the protections are broader. We also begin by focusing on the history of the development of the concept of religious freedom over time. From there we try to start at the core with belief and then speech and then outward to actions, or what international human rights laws usually called “manifestations” of belief. This leads inevitably to the key questions of limitations. What are the legitimate grounds legally for limiting religious freedom? Everyone agrees that there needs to be limitations. But making sure those limitations are not overly broad is one of the recurring challenges. The other thing we do is organize our teaching around two things: the first is the individual dimension and the second is the institutional dimension. For individuals, in international human rights law we would call this “freedom of religion or belief,” whereas in the United States it tends to come under the rubric of free exercise of religion. On the institutional side, in the U.S. these cases tend to come up under the Establishment Clause, or more accurately the clause of the First Amendment [of the U.S. Constitution] prohibiting the establishment of religion, whereas in international human rights law this tends to come up in in terms of autonomy, church autonomy. That’s the basic structure that we use in trying to introduce the topic.
As the First Amendment textually secures protection for freedom of religion only, does it mean that the U.S. approach opposes the international approach or protecting freedom of religion or belief? As Ronald Dworkin puts it in Religion Without God: “People share a fundamental religious impulse that has manifested itself in various [theistic, atheistic, and non-theistic] convictions and emotions.”
The U.S. Free Exercise Clause, for example, carves out religion for special protections. But even in the United States, what we’ve seen is gradually those protections have expanded to include non-religious convictions as well. We see this clearly. For example, in cases involving exemptions from the draft for conscientious objection. They began as protections for religious groups, and then for religious people who have beliefs that might depart from their institutional faith. And then it extends to those who are uncertain whether their objection is religious or not. And finally, to those who are firmly committed to the idea that their conviction is not religious. And all of those are now protected, even though it’s under a statute that was protecting religion.
Does your experience of being a member of a religious group whose believers were heavily persecuted in the past help you to teach law and religion?
As you know, I’m a member of The Church of Jesus Christ of Latter-day Saints, and Brigham Young University is owned and affiliated by that church. It’s quite natural that the experience of Latter-day Saints with respect to religious freedom colors our approach to this issue. Our founding story ends in Prophet Joseph Smith’s being murdered while in jail under state protection and then in Latter-day Saints being forced from their homes and crossing the wilderness in wagon trains to establish a safe haven, far away from a territory that anyone else seemed to want, in desert mountains of the southwestern part of the United States. I think this experience probably affects our approach in two primary ways. First, it helps us understand that each of us, and by this I mean everyone in the world, is a religious minority. There are places where people are a majority, perhaps Orthodox Christians in Ukraine, or Catholics in Argentina, or Jews in Israel, or Muslims in many countries. Globally, there is no religious majority. Even Christians, the largest religious group in the world, are probably something like a billion and a half in a world of seven billion. Similarly, Muslims are a little over a billion. The next largest group is actually unaffiliated—that is, people who don’t have faith as an important part of their identity. If we would always remember that we are part of a religious minority, especially at times where we find ourselves in temporal majorities, I think this would help us solve many of our problems. Latter-day Saints, a little bit like Jews, have the experience of being a majority, although a fragile one, in one place, and a minority virtually everywhere else, often a tiny minority. I think this perspective of shifting between viewing myself as a majority and a minority comes quite naturally to Latter-day Saints.
The second way that this religious experience probably colors my approach is this experience of the journey from persecution to inclusion. Latter-day Saints were a tiny, persecuted religious minority subject, for example, to an extermination order in the state of Missouri. And over time, especially over the course of the twentieth century, the Church as an institution has made a transformation from being a persecuted minority to being more or less an accepted part of the diverse pluralistic religious tapestry that is the United States. Several years ago, I was invited by [British politician and member of the House of Lords] Baroness Emma Nicholson to come with her to Iraq for a conference focusing on the Yazidi people, a persecuted minority in Iraq. What she wanted me to do was to reflect upon the Latter-day Saints’ experience of the journey from persecution to inclusion, to see if there were any lessons that might be applicable to other groups such as the Yazidi. What I learned when I really started focusing on this issue was that the very same people and institutions that are the persecutors are the solution to the problems of persecution and the key institutions that will help [the persecuted] make the journey from persecution to inclusion.
Think about legislators, for example. Legislators can pass laws that are discriminatory and designed to injure or limit persecuted minorities, but they can also pass laws that are designed to protect the religious freedom of everyone. Similarly, judges and government officials. But it’s also true of majority religion. Majority religion can be a force for persecution, but it can also be a force for inclusion. Similarly, business or academics. If you look at the early encyclopedia entries on The Church of Jesus Christ of Latter-day Saints, they look a lot like hate speech. Whereas if you look at more modern and up-to-date treatments, they’re much more fair minded and balanced. So what we have learned is that all of us in all of our institutional roles, and also in our personal roles, can either be forces for persecution or inclusion. This is most close to home when you think about neighbors because it turns out that religious persecution is not primarily something that happens from afar. It’s primarily something that happens in one’s own neighborhood, in one’s own town, in one’s own community, within one’s own city or state or province or country. What we try to emphasize is the power of each of us as neighbors to be a force for inclusion, tolerance, and non-discrimination, rather than of exclusion discrimination, and in extreme cases, hostility or even persecution. This experience has really changed my way of thinking about this topic. I used to think of religious persecution as a problem that occurred far away, and it was something that was very unusual or an aberration. What I’ve come to see is that it’s a much more natural part of human sorting and the way we differentiate ourselves. The place where I worry about religious discrimination, the place where I worry about persecution, is places that are close to home. You would find it close to home in Ukraine, and I could find it close to home, even in a place like Utah.
CULTURAL, POLITICAL, AND LEGAL DIFFERENCES AND THEIR IMPACT ON TEACHING LAW AND RELIGION
You have taught law and religion courses in many places within the United States as well as Europe, Central Asia, Vietnam, Laos, and China. How do you deal with cultural differences when teaching?
That’s a good question. It turns out that the differences are more profound and sometimes subtle than we sometimes realize. I think, for example, of the United States and France. These are two countries that had revolutions at about the same time and adopted basic documents and frameworks for freedom at about the same time. On the face of those documents, the commitment to natural rights and freedom appears to be very similar. Yet freedom of religion is understood, I think, radically differently in France and the United States. In America, when we think about non-establishment, when we think of free exercise, the word that will come to mind is freedom of religion. American schoolchildren are taught that the American Revolution was a revolution against the monarchy, against King George, against taxation without representation. But there’s no sense to teach that the revolution was a revolution against the Church of England. In some small way, it may have been because Anglican priests (not all of them) tended to be loyalists. But that’s just not the mythology or the history as we remember it.
In France, the key idea is laïcité, which is sometimes interpreted or translated as separation of church and state, but it’s much more a type of secularism and is much more committed to freedom from religion than is U.S. non-establishment. For example, issues like the headscarf are viewed very differently in the United States and France. In the U.S. it is viewed much more as a matter of personal choice, expression, and tolerance, whereas in France it is really viewed as an assault on this idea of French character, of laïcité—of what it means to be French.
At the beginning of my career, I was at a conference in France. French intellectuals [participating in the conference] were throwing around the word “cult” very casually. They were calling this group a cult and that group a cult. Finally, another American who was there raised their hand in exasperation that the Catholic Church was being called a cult. From an English speaker’s perspective that word is almost always a pejorative; it’s almost always a label, which is designed to be dismissive, whereas in Latin languages, including French, it’s a much more neutral term meaning something like “the church,” or at least the worship dimension of the church. At the same time, in English the word “sect” has quite a neutral or non-pejorative connotation. We talk about the Methodist sect and the Baptist sect, for example, as varieties of Protestantism. We don’t use that term so much these days, but it doesn’t have a history of being particularly negative. Whereas in French, it is quite negative. When you start calling something a sect, you tend to be putting them on a watch list of dangerous faith groups. What that experience taught me is just how easy it is to misunderstand one another. We have to be quite careful and quite generous in how we interpret and listen to each other.
What about legal differences? Does belonging to either common-law or civil-law legal traditions somehow influence teaching law and religion?
Yes, it is an important difference. But what we have found is that the differences, while important, are not necessarily an impediment. What you can do is put those differences on the table and then think about how different they really are. It turns out that they’re not as categorically different as we sometimes think. There’s a lot of U.S. law that is now codified and governed by statutes. Think, for example, of the Internal Revenue Code or of the Religious Freedom Restoration Act. It turns out that the primary entity that regulates churches in the United States is the Internal Revenue Service because it controls whether you qualify for tax-exempt status or not. This is a code-based regime. Similarly, in civil-law countries judges do a lot more lawmaking through cases and interpretation than a simple explanation of a civil-law system would lead you to believe. Thus, I think you could view our introductory course [of law and religion] as an introduction to human rights law and an introduction to comparative law. We have a set of examples to illustrate these differences on the topic of religion, freedom of religion, and institutional relationships between religion and the state. What we try to do is identify a common challenge, such as conscientious objection, and then think about it from not just a U.S. perspective but also an international human rights perspective and a comparative law perspective. Some of those comparative law perspectives will come from civil-law countries and some from common-law countries. This is a distinction we need to be sensitive to but not one that needs to immobilize us or become the central defining difference between different systems.
Do you have any rules or tips for teaching law and religion in “difficult places”—countries where religious freedom is not fully protected or even is seriously abused and constantly violated?
Let me begin by giving a general answer to this question, and then I’ll give some more specific examples. The general answer is that we find it’s always helpful and always respectful to come into any context with an approach that is genuinely academic—that is genuinely focusing on comparative law and genuinely focusing on international human rights law. When we do that, we can begin talking about issues in a way that’s less personal and feels less like a critique or an attack than if you go in and start talking immediately about the experience in the host country. We follow this approach wherever we go. It’s a way of trying to bring our expertise, which is in international comparative law, and admitting where our expertise is thin, which is in the law of a particular country. For example, I was participating in a conference of legislators in the Philippines who are considering a new law, a Magna Carta for religious freedom. I didn’t go in to talk about that law. I went in to talk about the problems of limitations that are recurring in virtually every country. In such events, when it comes time for questions and answers, it’s usually the participants who will raise examples and issues of concern from the host country. That’s the general part of the answer.
Now, let me give a more specific answer. There are certainly places that are difficult. Places where we work frequently that I would put on this list include China, Myanmar, and Laos. In each of these places, talking about these issues is very sensitive and quite challenging. And it’s gotten harder in recent years. In Myanmar, it has gotten difficult because of the military coup although, even so, we have held some online training programs in Myanmar that have surprised me in the level of interest and depth. China has also become quite difficult, partly because of the COVID-19 epidemic and partly because of the rise of Xi Jinping’s nationalism. It’s not as if we’re on just a constant glide path, which is simple and easy. We sometimes find ourselves facing significant setbacks. But our strategy is to work as consistently and on an ongoing basis as possible. We’ve been doing programs in China for nearly 15 years, and the ability to continue and to stay in touch and to try to be a constructive force is still possible, even at times when gathering in-person is very difficult. Another group of countries that I would mention are places like Indonesia, Nigeria, and Uzbekistan. We’ve worked hard in these places, and they also have significant sensitivities, sometimes because there’s a dominant religious majority. In Indonesia this is clearly Islam. Other times there’s a sharp religious divide, like there is in Nigeria with the country’s almost fifty-fifty split into geographic areas, one which is Muslim majority and the other which is Christian majority. And especially in the middle of the country, these clashes are very significant. Uzbekistan is challenging for another reason, because of its strong secular tradition as a post-Soviet country, but one with a religious majority, and a fair amount of concern about resurgent religious nationalism.
Perhaps the most important teaching we do is here at our own university. We have our own students to teach. Here too we have a challenge: we’re quite religiously homogeneous. Teaching in our own home presents challenges because when you’re teaching a very homogeneous group, you don’t have some of the perspectives and the diverse views that would arise in other places. One place I’m really excited about is our teaching at Oxford University. For the last few years, we’ve been organizing a young scholars’ workshop on religion and the rule of law, designed to help lift and ignite the careers of the rising generation of law and religion scholars. Our goal is to bring in genuinely a global group (each year about 15 scholars) and to help them learn how to teach a course on law and religion and also to help them write English-language scholarship. (A part of that program is bringing along three full-time legal writing instructors who can help crack the code of how to succeed as a scholar in English-language academic publishing.)
Let me just conclude with one other example that I think is a remarkable success story. That is Vietnam. We’ve been working regularly in Vietnam for more than 10 years, with one or two teaching programs a year with very important partners, including Vietnam National University, University of Social Sciences and Humanities, and the Ho Chi Minh National Academy of Politics. Last December I participated in a program organized by the Ho Chi Minh National Academy of Politics, co-organized by our Center and the Institute for Global Engagement. There were more than 300 Vietnamese Communist Party officials at the primary party training school. We were teaching about religious pluralism, recent trends with respect to religion, and specifically law and religion. I think that is really remarkable. Some of my earliest childhood memories are watching the evening news with Walter Cronkite, and he was talking about the Viet Cong leader Ho Chi Minh leading the guerrillas through the jungles of Vietnam. I think for us today, to be participating in a constructive way with the Ho Chi Minh National Academy of Politics is actually a miracle and something that we don’t take for granted and something for which are really grateful.
Why do you believe that it’s still important to teach law and religion in these “difficult places?” Is it possible to get some positive educational result when teaching such a class in the context of authoritarian statehood and no rule of law?
It’s a good question. What we find is that there’s a hunger and a passion for religious identity and the free exercise of religion virtually everywhere in the world. When I go through the basic protections of freedom of religion (for example, in Article 18 of the Universal Declaration of Human Rights) in a place where human rights are very controversial, like Indonesia or China, I ask the participants—the students or professors who are participating in these programs—which of these dimensions are unimportant to them. They tend not to think them to be unimportant. In my view, there’s something deeply human and deeply universal about the striving to be free to pursue truth and to seek a relationship with the divine. Hence, we think it’s worth trying, even in difficult places.
What were the most “difficult places” in your experience?
Two places that we have found very difficult are Iraq, because of physical safety issues and the post-war situation, and China, due to the increase in authoritarianism and anti-Western ideology of the central government. But it was in Iraq that I really began thinking seriously about the journey from persecution to inclusion. This has become a book project that we’re working on to try to help persecuted minorities understand some of the things that have helped other groups make this journey. I think it’s worth it, even though you can’t say that we woke up the next morning and things were better in Iraq. China, of course, is very challenging right now. Xi Jinping has the China dream, which is very different than the American Dream. The American Dream is really understood in terms of individuals and families and their ability to rise to a level of self-respect and empowerment and capacity and the ability (and sometimes it started in a superficial way) to own your own home and a white picket fence. But it turns out, that’s not so superficial: having a home that is safe, that is an enclave, a place where you can live without government interference and where you’re safe.
Several years ago, our Chinese friends began speaking of what they were describing as a slow-motion cultural revolution. Sometimes they talked about it as a technological cultural revolution. And my fear is that they were right—that what we’re facing in China today is something far deeper and more significant and a much greater global challenge than we would like it to be. I say that regretfully because I love China. I’ve been to China 20 or 25 times in the last 20 years. There’s no place in the world where I personally have put more effort in the field of law and religion than in China. Yet it’s hard not to be deeply discouraged about what is happening there. But one thing we know is that we make a mistake when we project today’s trends indefinitely into the future. I went to China for the first time in 1983. At that time there was one skyscraper 20 stories tall in Shanghai. By the time you got to the year 2010, China was unrecognizable because of the progress and the modernization that had taken place. Now, 10 years later, it’s almost unrecognizable again, because of the inward focus and the strong nationalism and xenophobia that we see in the country. But how will it look in 20 more years? I don’t want to hazard a guess because I think it’s really difficult to project. But what we can almost be certain is it’s not going to be just a simple continuation of current trends; things really do change.
Do you believe that the growing middle class in China will tend to be more focused on their personal freedom and human rights and will encourage, support, and promote positive changes in this field?
Let me start with describing what, in my view, was sort of the international conventional wisdom about China. This certainly goes back to the 1990s, when Bill Clinton’s administration welcomed China into the global trading system and gave them permanent normal trade status. At that time the conventional wisdom went as follows: Economic liberalization will inevitably lead to political liberalization. As we modernize and people experience greater freedom in the economy, this will lead to pressure for greater political freedom. I personally really believed that for a long time. But in the early 2000s, I was in China and expressing this view to some of my Chinese hosts. They scoffed at me for being so simpleminded and stupid. I was a little shocked and asked why not. Their response was very simple. They asked me, “What does the political class in China, the ruling Communist Party, business leaders in China, the academic elite in China, and the military elite in China, all fear most?” The answer was: one billion Chinese peasants. When they said that, my eyes opened and I could never think about this in quite the same way. Because that’s democracy, right? That is the fear that all these elites share. None of them want China to be governed by a billion peasants. From that moment forward I realized that the dynamics in China were far more complex than I had thought before. We’ve seen that even the economic liberalization that’s taken place in China has not been as simple and straightforward and along the Western model as we would have imagined. It definitely has not resulted in an increase in political freedoms and in rights that are legally enforceable.
I don’t know the future. I don’t know what the rising economic prosperity of China will bring. But it seems clear that Xi Jinping has sort of entrenched himself in a way that no leader has since Mao and that he has a vision for China, which is very different than the vision that we had of China in the 1990s when we welcomed them into the World Trade Organization. I don’t want to be cataclysmic or apocalyptic, but there is a very important fundamental difference in the worldview in China and what we would think of the post-World War II liberal international order. I hope they are not on a collision course, but there’s a contest taking place involving a very different vision of international order and what a stage should look like.
DEVELOPMENTS AND NEW TOPICS IN TEACHING LAW AND RELIGION
You have been teaching law and religion courses globally for several decades. What are the dynamics of your students’ attitudes to these issues?
I think we have seen some significant changes. One that I think is significant is the politicization of religious freedom as a human right [within the U.S.]. Think about the Religious Freedom Restoration Act and the International Religious Freedom Act that were passed in the late 1990s. They were virtually unanimously passed by both parties. Today in the United States we see cleavages over religious freedom, and they take place in several dimensions. One is between Republicans and Democrats. Polling shows that on average Republicans remain very supportive of religious freedom and Democrats much less so. We also see cleavages based on church attendance. Those who attend church regularly care deeply about religious freedom, and those who don’t attend church regularly care much less about it. That’s not surprising. But America has become quite a bit more secular in the last 20 years, since those laws were passed. Thus, the social consensus around religious freedom is much weaker. Another cleavage is young and old. Older people tend to value religious freedom in the United States more than younger people. Part of this, I think, is due to specific social issues, probably most importantly abortion rights and gay rights. But the cleavages run deeper than just those things. After all, religious minorities and sexual minorities are both vulnerable minorities. There should be common ground between them in trying to avoid heavy handed majoritarianism, and I believe that those types of shared interest and cooperation are more possible than we sometimes think.
However, the biggest difference that I see globally as well is the politicization of human rights. I think there’s much more human rights skepticism around the world today than there was 20 years ago. One of the ways that we’ve been trying to address this is by focusing like a laser on the concept of human dignity for all people in all places at all times. The reason we’re doing this is we believe that human dignity is the foundation for human rights, including freedom of religion or belief. It is also a way of creating common ground between different religious traditions as well as between religious and non-religious humanists. Those who care deeply about humankind, whether they’re religious or non-religious, whether they’re from this religious tradition or that religious tradition, are going to be drawn deeply to the values of human dignity. And in thinking about this topic, one thing we learned is how important human dignity was at the time of the drafting of the Universal Declaration of Human Rights. After all, this was a time of deep politicization as well; you had the quickly oncoming freight train of the Cold War and this deep ideological division between the Soviet Union and the Western countries. Yet the Declaration was drafted and adopted unanimously by the United Nations General Assembly largely because of the common ground that human dignity provided, which enabled constructive discourse leading to agreement. What we’ve come to believe is that, in our moment as well, this emphasis on human dignity can serve as a way of depoliticizing human rights and finding common ground between very ideologically different approaches to the meaning of life.
What are new topics in the sphere of law and religion you plan to implement in your course?
There are several areas that we’ve come to see as very significant. The first is American family law issues. [We created the casebook] nearly 20 years ago, and now we’re now working on a new edition. [In the first edition,] the issues of family law were treated as passing issues in different chapters. What we’ve come to see is that family law issues—issues regarding marriage, divorce, child custody, inheritance—often have a very strong religious dimension and have become much more challenging in the last 20 years. Again, this is partly related to LGBTQ rights and the constitutionalization of same-sex marriage in many places and the statutorification of same-sex marriage in many other places.
The second area relates to the digital world: issues involving artificial intelligence and the way we communicate with each other. Social media, I think, is having a very significant impact. Think about the founding of Facebook, Snapchat, or Twitter; each of these technologies is about the age of a teenager. It seems to me that the way we utilize this is with the wisdom and judgment that is characteristic of teenagers. We are often excessive; we often bully; we often use these in very creative, but disruptive, ways. My hope is that in another 15 years, we’ll look back at today and shake our heads the way we shake our heads at pictures of ourselves when we were 13 years old. We’ll look back and say: “Wow, we were really immature in the way we utilized and understood the use of these technologies.”
The last thing I’ll mention is the coronavirus pandemic. It’s been significant for going on two years now. The response to the coronavirus crisis has been a big challenge for all our institutions: our public health, governance institutions, business, and media. It’s been a challenge for religious groups as well. I think religious groups will come out of the pandemic a little different than they were before: different in the ways they use technology and reach out, and perhaps different in the number of people that come back and the strategies for encouraging people to come back. Obviously, one of the big challenges that the coronavirus crisis presented was a variation on the common theme of limitations on religious freedoms, specifically the rights to gather to worship and even the rights of priests to minister to congregants in person.
In my view, the great challenge of the coronavirus crises has been to remember to use the tools that we have in our legal toolbox for dealing with the problems of limitations. These basic tools are things like the rule of law. We want to make sure that we’re not governing just by sort of edict and by declaration. Government officials need to be sure they’re acting pursuant to delegated powers and pursuant to enacting rules that are transparent and accessible—all of the basic rule of law constraints. The second principle is non-discrimination. We don’t want to treat religious groups differently. We also don’t want to treat religion differently from similarly situated secular activities. Religious gatherings might be a lot like a concert or an opera or a theater event. Finally, the legal tools of necessity and proportionality should be mentioned. Those are the international human rights ways of talking about what we think of as compelling state interest and least restrictive means in the United States. That is simply the idea that we want to make sure that the restraints are no more than really necessary. Of course, that’s going to be very factually intensive and to change over time. I think we’ve seen that in the way courts have responded to government efforts to restrict gathering. But it also comes up in issues like conscientious objection of those who have a conscientious objection to vaccines. What I hope is that when we look back, we’ll be able to say that we understood and utilized the tools in our toolbox for dealing with the coronavirus crisis. I think there are some grounds for hope, although the assessment is going to be mixed. But in general, the legal frameworks have held up and have been utilized in most places.