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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Post-Liberal Religious Liberty: Forming Communities of Charity

Joel Harrison is the author of the recently published Post Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020). He is Senior Lecturer in Law at Sydney Law School, University of Sydney. The following is an edited version of a conversation with David Taylor at The Eucatastrophe.

DT: Your account of the purpose of religious liberty begins provocatively: “Religious liberty protects the quest for true religion.” What do you mean by “true religion” and how does this differ from the typical use of “religion” in religious liberty discussion?

JH: By true religion, I mean a religious quest to rightly order our lives towards God. Finding out the truth of religion—what it consists of, what is its end—matters. Augustine writes of “right flowing from the source of rightness.” He means forming a community that lives well together, in light of the epiphany of God. True religion then concerns not simply the individual, but the shape of the political community and the role of political authority in furthering the common good. I argue that religious liberty consequently means civil authorities protecting and encouraging this quest. Ultimately, it concerns protecting the free creation of communities of solidarity, fraternity, and charity—the love of God and neighbor.


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Registration and Deregistration of Religious or Belief Communities and Security

Elizabeth A. Clark is Associate Director, International Center for Law and Religion Studies and Regional Advisor for Europe at the J. Reuben Clark Law School, Brigham Young University

Presentation at the Ministerial to Advance Freedom of Religion or Belief (November 16, 2020, Warsaw, Poland)

In working with government officials and others around the world, I often hear arguments along these lines: religion and religious extremists pose an existential threat to our country. Freedom of religion or belief is a luxury we cannot afford [1]. We have a responsibility to our people to screen out religious groups that are extremist or a danger to the community. We need to have laws limiting registration and banning extremist groups. Our national security depends on it.

Although this has a certain logic, empirical research shows that this argument turns out to have it backward.  Using registration as a means of screening out new, unknown, or potentially threatening religious groups has been shown to undermine security and increase the likelihood of religion-related violence.


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