Conflicts between Religious Liberty and the New Public Health

Jeffrey B. Hammond is Associate Professor of Law at Faulkner Law
Michael J. DeBoer is Associate Professor of Law at Faulkner Law

 

In the United States, governments’ responses to the COVID-19 pandemic have brought into focus conflicts between religious liberty and public health objectives and directives. State and local governments have utilized familiar and long-established public health measures to combat this pandemic, including orders mandating business closures, isolation, quarantine, testing, and contact tracing. These measures have had significant effects on religious believers and their places of worship. Apart from these public health orders’ disruption on routine worship assemblies, the orders have disrupted other important religious services, including baptisms, Eucharistic celebrations, weddings, funerals, last rites, and pastoral counseling.

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Hands-Off Religion in the Early Months of COVID-19

Samuel J. Levine is Professor of Law and Director of the Jewish Law Institute at the Touro Law Center

For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, judicial rulings and rhetoric in these cases illustrate ways in which the hand-off approach remains, at once, both vibrant and vulnerable to critique.

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Political Theology and Church Restrictions

Paul Marshal is Wilson Professor of Religious Freedom and Research Professor in Political Science at Baylor University, Senior Fellow at the Hudson Institute, and the Leimena Institute, Jakarta

Perhaps the most contentious religious freedom issue raised in the pandemic has been governmental limits on religious gatherings, and not only in the U.S.

We should not exaggerate the resistance by churches and others. The vast majority of churches, mosques, synagogues, and temples have followed government orders. Many of those that have resisted restrictions are often fringe bodies, commonly with ties to the “prosperity gospel.”

Also, churches have been scapegoated. The New York Times ran an op-ed titled “The Road to Coronavirus Hell Was Paved by Evangelicals,” though later changed to the milder but still tendentious “The Religious Right’s Hostility to Science Is Crippling Our Coronavirus Response.” Later it published “Churches Emerge as Major Source of Coronavirus Cases.” However, the article traced only 650 cases to churches, which was, on July 8, 2020, the day the piece was published, only 0.022% of the 2,923,432 reported cases in the U.S., hardly a “major” source.

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