Christopher C. Lund is Professor of law at Wayne State University Law School

When the government imposes quarantine orders for public safety, shutting some places down and leaving other places open, how should it treat religious organizations and religious services?  A natural answer is that religious organizations should be treated equally. And that makes sense. Equality is a solid moral principle, with wide-ranging appeal and deep roots in history and in law.

But equality is not self-executing. And the deeper one goes into these quarantine orders, the more that becomes apparent.  We are trying to treat religion equally, but we don’t quite know how. I’m planning a longer piece that will go into more details. But for this blog post, let me simply try to demonstrate two things to you.  First, quarantine schemes require judgments about the value of religious exercise—which is uncomfortable in a system like ours, which tries to keep the government out of such questions.  And second, by insisting that all gatherings of all religious organizations be treated the same way, quarantine schemes become blind to genuine religious differences. We are deciding how much to restrict religious organizations in general by imagining what happens in a religious service, but our imagined religious service ends up looking a lot like a Sunday morning Christian worship service.

Quarantine schemes classify organizations based on type, and such schemes will inevitably run into these two problems.  How they should best be handled is a question for another day. For now, I merely want to persuade you that there are some interesting issues here.

States have worked against the COVID-19 pandemic in a variety of ways. Many states have issued shut-down orders, requiring business and other organizations (including religious ones) to close temporarily. Sometimes these shut-down orders have proceeded in stages, with different kinds of organizations being able to reopen at different times.

Forget religious organizations for a second. If you were in charge of deciding what things should open and when, you would naturally take into account the value of the thing in question. California put restaurants in stage 2b of its multi-stage reopening plan, and put bars in stage 3.  As a result, restaurants could re-open before bars could. Now this could be purely about the relative risk of COVID-19 transmission.  But that’s uncertain, given that social distancing and masks were required in both places.  More likely, there’s also a value judgment here.  California thinks—and it may have good reason for thinking—that open restaurants are simply more important to society than open bars.

And more generally, value judgments lie behind all the government’s categorization decisions. When we decide that grocery stores are “essential businesses” that do not have to close, it is because we think people need to be able to buy food. When we put childcare places in the first category of closed businesses that can reopen, it is because we recognize that working parents need childcare for their kids.

There is a simple truth here. Determinations about when different things should re-open does not merely involve questions of fact (what’s the amount of risk?), but also involve questions of value (is this worth the amount of risk?).  The more something is worth, the more risk we are willing to accept.

But this creates real problems when it comes to figuring out where religious organizations should fit into the scheme.  Take California’s multi-stage reopening plan. Essential businesses (including grocery stores, fast food places, and liquor stores) were in stage 1 and never had to close. Other organizations were classified as stage 2 (which really consisted of two separate stages, 2a and 2b), stage 3, and stage 4. Where do religious organizations most naturally fit?  Should religious organizations be treated like concerts (stage 4), movie theaters (stage 3), restaurants (stage 2b), or grocery stores (stage 1)?  We must listen to the scientists, who will tell us about the comparative transmission risk of all those things. But that is not enough. Cost/benefit analysis depends on us evaluating both the costs and the benefits. This means somebody also needs to tell us about the comparative value of those things. How important is religious exercise, as compared to a concert, or a movie, or a meal out, or a trip to the grocery store?

This is a pickle.  In deciding in what category to put religious organizations, governments must make judgments about the worth of religious exercise. But those are exactly the kind of judgments we do not want the government making!  In our system, people get to decide the worth of religion for themselves.  They might think religion good or bad; they might think it valuable, invaluable, or worthless. But each of us gets to decide that for ourselves—we decide, with those we love and trust, what to believe, whether to believe, and how to practice. But the pandemic changes everything. Because we affect each other more than we did before, we now must make collective (that is, governmental) decisions about the worth of things—including the worth of religion.

To be clear, this problem cannot be solved. It is a problem inherent in quarantine schemes that classify organizations by type.  And to be sure, I do not think any other kind of quarantine scheme could really work. If governments could not classify organizations by type, they would only be able to use generally applicable rules like “indoor masks,” “always six feet apart,” “buildings at 50% capacity.” But that simply would not work. For it would make it impossible for government to distinguish even among *nonreligious* organizations based on their value. California would be unable to favor restaurants over bars.  It would be unable to give any priority to grocery stores, hospitals, or childcare places. Sensible quarantine schemes must classify organizations by type.  But that brings us back into the thicket.

One final point remains. One problem with quarantine orders lies in the difficulty of figuring out where to put religious organizations. But another problem is connected to that—by putting all religious organizations in the same category, we end up flatting the various ways in which religious groups are different.  Christians, Muslims, Jews, and Sikhs—all religious groups will be governed by the same rules. To be sure, this is the right approach. Equality between religious denominations is a bedrock principle. But it ends up also collapsing real differences between faiths.  For example, in deciding how to handle religious organizations, many courts and legislatures have seized on to the fact that singing involves a high degree of transmission risk, which naturally suggests caution about letting religious groups meet. But, of course, not all faiths sing during worship services—some faiths don’t even have what many would consider to be worship services. We’re figuring what restrictions to impose on religious services based on some conception of what “usually” happens in religious services. But such conceptions will be heavily shaped by the practice of the dominant majority faiths. To put it bluntly, quarantine orders regulate everyone as if their religious meetings all resembled the prototypical Sunday morning Christian worship service. But that is not quite right.