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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Coronavirus, the Compelling State Interest in Health, and Religious Autonomy

W. Cole Durham, Jr. is Founding Director of the Law School’s International Center for Law and Religion Studies

Experience with COVID-19 has refocused attention on the relationship between the state’s interest in protecting public health and the protection of freedom of religion even during a clear health emergency.  Does the state have unfettered discretion to shut down religious services? Can the state regulate clergy conduct in ways that preclude the administration of last rites? Can the state specify whether and how religious rituals are performed? Can the state dictate funeral practices? Is the state free to determine how “essential” religious practices are?

These are simply a few of countless issues that have arisen over the past six months. The challenge presented by such examples is complicated by the fact that different religious communities have very different religious practices, generating distinctive religious needs, and posing distinctive health risks.  Also, for a variety of internal religious reasons, different religious communities may have differing abilities to adapt their religious practices to publically imposed mandates.

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When the State Tells You How to Run Your Church Service: Analyzing Coronavirus Guidance Documents on Religious Services

Dwight Newman, QC is Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan and a Munk Senior Fellow (Constitutional Law) at the Macdonald-Laurier Institute

Does the coronavirus pandemic justify the government telling churches how to run their worship services?

Some state governments in the United States and provincial and territorial governments in Canada seem to have thought so during the reopening phase of the pandemic, setting a concerning precedent of relatively detailed governmental regulation of religion. Other governments, facing the same coronavirus pandemic, have managed to engage with religious institutions more respectfully, furthering health goals without imposing detailed requirements on religious services.

In this post, I discuss some striking examples of how coronavirus guidance documents on religious services have differed in ways that show differing levels of respect for principles of state non-interference in religion. While the pandemic situation can obviously justify some steps that would not normally be taken, the different approaches illustrate that governments have had genuine choices about whether to interfere more or to interfere less with religion. The choices they are making have implications in relation to the precedent for future interference.

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