The U.S. Supreme Court and Pandemic Restrictions on Religious Worship

Frederick Mark Gedicks is Guy Anderson Chair and Professor of Law in the J. Reuben Clark Law School at Brigham Young University

The current pandemic has presented challenges to normal life in the United States and elsewhere, including to the free exercise of religion. The U.S. Supreme Court has weighed in several times on COVID-related free exercise claims; though these are summary dispositions, they illuminate a doctrinal fault line that is likely to emerge in Fulton v. City of Philadelphia (3rdCir. 2019), a free-exercise case currently pending before the Court.

The Supreme Court’s Jurisprudence on Pandemic Restrictions

Employment Division v. Smith (1990) famously held that the First  Amendment’s guarantee of the free exercise of religion does not include the right of believers to be excused from complying with generally applicable laws that incidentally burden their religious beliefs or practices. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) clarified that Smith does not apply to laws which target religion with burdens from which comparable secular activities are relieved. Together, Smith and Lukumi transformed the free exercise of religion in the U.S. from a liberty to an equality right more consistent with the rule of law: believers are to be treated no better than other people, but also no worse.

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COVID-19 and Restrictions on Religious Institutions: Constitutional Implications

Kathleen A. Brady is Senior Fellow and McDonald Distinguished Fellow with the Center for the Study of Law and Religion at Emory University

When the dangers of COVID-19 first became apparent to the American public this past March, few churches resisted state and local lockdown orders that prohibited or severely limited in-person worship services. The potential for congregational gatherings to rapidly spread the virus was widely understood, and most religious believers probably anticipated a relatively short disruption. However, as the pandemic nears its seventh month and many jurisdictions retain substantial restrictions on in-person worship, many Americans are growing increasingly frustrated with limits that impinge upon core religious practices and undermine the spiritual, social and emotional goods that these practices nourish. It is not surprising, then, that litigation over restrictions on in-person worship has been increasing.

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Christian Public Engagement in a Time of Crisis

Anton Sorkin is an employment attorney in Atlanta, Georgia, and a doctoral candidate at the Emory University School of Law

“If we should weep when clowns put on their show,
If we should stumble when musicians play,
Time will say nothing but I told you so.”

W.H. Auden

The COVID-19 pandemic has introduced us all to a common experience. Whether it’s through our means of income or the daily disturbance of patterned existence, our lives have been put on pause for a period that feels almost indefinite. Widespread orders have forced believers to gather online – challenging not only the communal function endemic to the life of the church, but also its mandate to love the neighbor through acts of proximate charity. Predictably, this situation has triggered a host of legal issues surrounding exemptions for “essential business or operations,” and raised profound metaphysical queries regarding equal treatment and the psychology behind essential versus non-essential services. In his piece at the Mirror of Justice, Professor Marc DeGirolami keenly observes the nature of our disagreement as an extension of our varying conceptions of “the good” in relation to human activity:

If one’s view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores—treating the goods of the human activities that these places foster unequally—is perfectly justified.

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