The COVID-19 pandemic has scrambled America’s priorities, including with respect to religious freedom. No one could have anticipated it back in January, but the legality of public worship has become an item on our national agenda. Because of the pandemic, state and local governments across the country have prohibited (or restricted) both indoor and outdoor worship gatherings. Such gatherings, officials maintain, threaten to spread the virus in religious communities and the general population. In response, religious believers—at first almost exclusively Evangelical Christians, but increasingly Jews and Catholics as well—have sued in federal court, arguing that the restrictions violate the First Amendment’s Free Exercise Clause.
The lawsuits have achieved mixed results. Some lower federal courts have sided with plaintiffs and held restrictions on worship to be unconstitutional; others have sided with state and local governments. In May, by a vote of 5-4, the Supreme Court rejected a constitutional challenge to a California order limiting attendance at houses of worship. The Court did not issue an opinion in the case, South Bay United Pentecostal Church v. Newsom, but Chief Justice John Roberts wrote a concurrence defending the result. Last week, in a case called Elim Romanian Pentecostal Church v. Pritzker, the Seventh Circuit relied on Roberts’s concurrence to uphold the constitutionality of a similar Illinois restriction on worship gatherings.
The cases across the country are highly fact-specific, but all apply the Supreme Court’s landmark 1990 decision in Employment Division v. Smith, which introduced a test for evaluating claims under the Free Exercise Clause. According to Smith, a “neutral” and “generally applicable” law that incidentally burdens religion does not violate the First Amendment. By contrast, a law that is not neutral and generally applicable—in other words, a law that targets religion for disfavored treatment—is subject to a balancing test known as “strict scrutiny.” To justify such a law, the state must show that its compelling interest in enforcing the law outweighs the burden on the plaintiff’s exercise of religion.
Lawyers need to focus on the ins and outs of Smith, because as a formal matter judges explain their decisions in doctrinal terms. But with respect to religion, as well as many other salient constitutional issues, doctrine doesn’t determine too much. Our Religion Clause jurisprudence is notoriously ad hoc. This is even true of Smith, which was supposed to improve upon the unprincipled, indeterminate character of the Warren and Burger Courts’ Free Exercise decisions. To understand what’s going on in the current round of church closure cases, one should cut through the doctrinal details and focus on the question that seems to drive these decisions: the degree to which judges should defer to local officials in a public health crisis.
For example, Roberts’s concurrence in South Bay, which did not even cite Smith, stressed the need for courts to defer to public health authorities during a pandemic. Judges, who lack the relevant training and skill, should not “second-guess” the decisions of experts in “areas fraught with medical and scientific uncertainties,” he wrote. On the question of whether the California restriction was “generally applicable,” Roberts bowed to local officials who maintained that churches posed the same risk of contagion as “comparable secular gatherings” the state had restricted, such as sporting events and theatrical performances, “where large groups of people gather in close proximity for extended periods of time.”
In last week’s Elim decision, the Seventh Circuit similarly emphasized the need to defer to local authorities during a public health emergency. Plaintiffs argued that Illinois had targeted churches for disfavored treatment, since the state had not restricted warehouses and other secular places that posed a comparable risk of contagion. Writing for the court, Judge Easterbrook—like Roberts, a conservative—conceded that the Illinois authorities might have done more “to figure out just how dangerous religious services are compared with warehouses and similar activities.” But in a public health emergency, local officials were allowed to make rough judgments.
Deferring to local authorities in a public health crisis is generally sensible, and I have written elsewhere that Roberts was correct in South Bay. Judges are not epidemiologists and should not pretend to be. They lack the competence to evaluate the severity of a pandemic or the comparative risks of contagion. Moreover, judges are not politically accountable. The public cannot fire judges who assess risks incorrectly or make judgments about costs and benefits the public does not share. Judges should not allow local authorities to do whatever they want, of course; there are limits. But in a pandemic, judges should mostly show restraint and let local authorities handle the situation as they think right.
But deference depends on local authorities acting objectively and in good faith. Courts defer to public health experts because they see them as neutral and non-partisan. If the experts change their assessment of the risks associated with an activity depending on the ideological commitments of the participants, courts will and should have less faith in the experts’ recommendations. Similarly, if local authorities justify restrictions on religion by saying that religion simply is not as important as other things, courts will and should be less likely to defer. As Smith itself recognizes, if religious freedom means anything, it means that state officials cannot treat religion less favorably than other commitments citizens may have.
In the last couple of weeks, local authorities have squandered much of their credibility. For months, public health authorities have told Americans that gatherings of more than a few people, even outdoors and with social distancing, should not take place because of the grave risk of contagion. Families could not even have funerals for loved ones. Now, however, many of those same public health authorities say (while others remain silent) that mass protests can and should go forward, given the issues involved. Combatting racism and police brutality is profoundly important. But that’s a separate question from whether the gatherings pose a public health risk. As Ross Douthat wrote, the virus doesn’t care why someone is protesting.
Moreover, in making these arguments, some local officials have expressly disparaged religion. Here in New York, Mayor de Blasio used dismissive terms to explain why the city has permitted protests but forbidden Hasidic funerals: Religion, the mayor said, was simply not as important. The mayor is entitled to his opinion; probably most New Yorkers agree with him. But his statements—and those of other elected officials—should make courts skeptical about deferring to the judgment of local authorities.
I still think Roberts was correct in South Bay, particularly with respect to indoor gatherings. But deferring to local authorities on these questions has become much less defensible. The next challenge to restrictions on religion during the pandemic that reaches the Court, especially if it involves outdoor gatherings like weddings and funerals, may receive—and merit—a different reception.
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