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.