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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Attention: Physical Presence for Court and the Catholic Church

Matthew Cavedon is a criminal defense attorney in Gainesville, GA

Moving the world onto Zoom was not as dramatic a break from history as you might think. After all, it’s been 170 years since Marx & Engels wrote that “[a]ll that is solid melts into air.” In many ways, then, moving everything onto actual Wi-Fi is just another blip in a centuries-long trend of airier and airier “modernization”—that is, of more abstraction, of the move away from place and flesh and time into a new world of idea and identity and the instant. Why, then, does it feel so sad? Americans are not handling the COVID-19 pandemic well. A third of us are experiencing stress and anxiety. Why? Shouldn’t we be ready for this next stage of human evolution, away from conference rooms and handshakes and hugs? For at least twenty years, some say, we have all been “chimeras, theorized and fabricated hybrids of machine and organism—in short, cyborgs.” And yet we don’t seem to have assimilated very well.

Two sanctuaries of resistance to the technology trend—the courtroom and the Catholic Church—help explain why we can’t just effortlessly float off into the cloud as a species. Both have only grudgingly gone online in recent months, even as much of the business world breathlessly predicts that couches are the new offices. This is because both are expert in focusing attention. And that requires forming consciousness through the senses in ways that virtual reality does not allow.


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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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