COVID-19 and Religious Liberty

Perry Dane

The COVID-19 crisis has strained religious institutions, along with the rest of our accustomed social order. In a few cases, it has also provoked the latest drama in the complex encounter between religion and state. As the pandemic blazed, most churches and other religious institutions in the United States and elsewhere have suspended live gatherings, either on their own or at the behest of the government. But some resisted, surreptitiously or openly, and others have challenged closing orders in court. American courts, including the Supreme Court, have produced conflicting opinions that have often turned on the details of the government policy in dispute.

As the country reopened, the rush of litigation ebbed, though it has seemed to resume as state and local governments reimpose tougher measures. In any event, it is important to examine the urgent theological, sociological, and legal questions that these controversies have raised. And it might be especially important to notice that, as is typical in these situations, those three sets of questions theological, sociological, and legal often refract each other or even intertwine.

To start, it is worth emphasizing not only that most houses of worship and other religious places obeyed shutdown orders, but also that some went further, suspending live gatherings of their own volition, often at great spiritual, psychological, and financial cost. For some faith traditions, these closures posed specific religious challenges not found in other, more mundane contexts. Catholics, for example, had to forego reception of the Eucharist at Mass, a physical act that cannot happen on a virtual platform. Many Jews interpreted religious law not to allow the use of virtual technology on the Sabbath or holidays. And some other Jewish communities that did conduct Sabbath services virtually still omitted the sections of the service that require a minyan the quorum necessary for certain collective prayers, including the Kaddish.

And yet, most Catholic Churches,  synagogues, and other houses of worship did suspend live services. Only a few did not. The explanations and justifications on either side are both religious or theological, and sociological.

Faith communities that have shut their physical doors for the duration of the COVID-19 crisis have sometimes relied on a general obligation to obey civil authority. But more often and more importantly, they have invoked the religious imperative to preserve human life against unnecessary risk. Indeed, in emphasizing the value of life, many faith leaders have explicitly rejected consequentialist calculations. Political leaders might need to balance health risks against other considerations, including the economy. But if every person is infinitely precious and made in the image of God, then knowingly sacrificing some for the greater good is unacceptable. Thus, for those religious authorities and thinkers, the obligation of houses of worship to avoid risking human health was more stringent than the civil government would necessarily require. 

To be sure, we all engage in implicit risk-benefit analyses every day. But the question of whether to continue live religious services crystalizes the stakes in a way that might not be so obvious in the ordinary flow of life.

The houses of worship and individual thinkers that have resisted calls to shut down had their own theological reasons, though. A few, including some Chassidic and Evangelical Christian communities, believed whether explicitly or embedded in their underlying worldview in the protective power of spiritual activity. Others found themselves weighing the physical risks against the spiritual benefits of collective worship. Some sacramental Christians, for example, emphasized that the Eucharist was spiritual nourishment as vital as ordinary food and drink. A handful of religious thinkers suggested that an outsized fear of death was a secularizing heresy.

Two other things stand out about religious responses to these questions from all sides. First, religious traditions brought to bear a longer and richer historical memory than might have been obvious in the wider discourse. Secular commentators and politicians tended to speak of the threat of the coronavirus as radical and singular. If they allowed for any historical referent, it was the Spanish Flu pandemic of 1918. But religious thinkers could invoke experiences and traditions of response going back centuries. They could cite the actions and writings of rabbis, priests, and ministers responding to a variety of plagues across the generations. That long view has imbued their responses with a depth and clarity rarely matched in general discourse.

Relatedly, religious thinkers of all stripes have been searching for meaning in the current crisis. I am not just talking about the usual questions of theodicy with their customary answers. More illuminating, the religious discourse of the day is asking questions about the spiritual significance of illness, the confrontation with mortality, the splintering of communities, and the spiritual consequences good and bad of isolation. Some thinkers have pondered how the implications of the current crisis might alter the place of organized religion in society in the long term. The best of these deeper reflections will last after the current crisis has passed.

As noted, though, there is a sociological as well as a theological piece to the story. It is worth asking whether there are any common factors that can make sense of both religious communities that resisted closing houses of worship and the masses of young people, many religiously indifferent, who threatened public health by swarming beaches and packing bars. And how has hostility to masks and social distancing become a hallmark of President Trump’s most ardent supporters? The common denominators, if any, might have something to do with the lack of social trust, skepticism of expertise, and groupthink. But there is surely more here that demands detailed study.

In any event, the presence of such sociological factors leads to some obvious questions about the religious discourses on the pandemic. Might the various theological responses be epiphenomenal rationalizations for instinctive reactions best explained by sociological factors? Or could it be the other way around? Might even behaviors that seem to have little to do with religion be expressions of implicit theological traditions that have embedded themselves in cultural attitudes and practices? Most likely, the causal and conceptual pathways are too jumbled to allow for any simple account.

More illuminating, the religious discourse of the day is asking questions about the spiritual significance of illness, the confrontation with mortality, the splintering of communities, and the spiritual consequences good and bad of isolation.

What about the law, though? And how do the legal issues relate to the theological and sociological parts of the story?

As governments issued shutdown orders, most religious communities complied some even imposed more stringent restrictions on themselves. Others resisted or went underground. And some sued, standing on their constitutional or statutory right to the free exercise of religion.

At first glance, these might seem like easy cases, especially in federal constitutional law. Under the Supreme Court doctrine interpreting the First Amendment’s Free Exercise Clause, as articulated in 1990 in Employment Division v. Smith, religious believers are hard-pressed to challenge the applicability of “neutral” and “generally applicable” laws that happen to restrict their activities. (I disagree with Smith, but that is not to the point.) An even older line of cases emphasizes that the government’s special authority to protect public health, exercised reasonably, presumptively overrides religious considerations.

The complication is that the recent shutdown orders have not been “generally applicable.” They have not imposed the same restrictions on all social activities. They have instead, as any sensible rules in these circumstances would, distinguished among various categories of activities, detailing which are deemed essential (for example, food stores and hospitals) and which are non-essential, or pose more risk of infection. They often set forth detailed requirements on density and social distancing, even among permitted activities. The real kicker is that many such orders specifically listed houses of worship as a distinct category.

Therefore, court cases have focused on the different treatment of houses of worship and various comparators. But in the rush of cases, decided in motions for preliminary injunctions, neither courts nor litigators have distinguished precisely enough among three distinct ways that such comparators might be legally relevant. The implications of that failure are not only practical and doctrinal, they also touch on deep questions about the encounter of faith traditions with the state.

Let me explain.

For the sake of convenience, I will refer to the three ways that comparators can come into the picture as Level I, Level II, and Level III.

The Level I argument which has been most common and explicit in the current spate of controversies is that the government’s disparate treatment of houses of worship and other activities points to actual anti-religious discrimination. The paradigm for this sort of claim is Church of the Lukumi Babalu Aye, Inc. v. Hialeah, which was decided about three years after Smith. There, the Supreme Court struck down a city ordinance that banned animal sacrifices, defined as ritual killing not for the primary purpose of food consumption. The Court correctly held that this ordinance unconstitutionally targeted religious conduct only because it was religious, while ignoring all the other ways that human beings in Hialeah might kill animals.

Some courts have embraced this paradigm. For example, a federal district court in Kansas issued a temporary restraining order against enforcement of a ban on in-person religious services with more than ten congregants because the ban was, on its face, not facially neutral and because the larger set of rules in which the religious-services ban was included “carve[d] out broad exemptions for a host of secular activities, many of which bear similarities to the sort of personal contact that will occur during in-person religious services.” 

The problem is that the analogy to Lukumi does not work. Shutdown orders have often included religious services among a general catalog of prohibited and permitted activities. The precise organization of that catalog will necessarily be debatable. But, subject to a proviso I will get to shortly, that is not anti-religious discrimination as such. It is a fine question whether, in terms of risk of contagion, a religious service is more like a theater gathering or a food pantry. But in the absence of a showing of bad faith, courts looking only to breaches of “neutrality” need not second-guess those judgments during a crisis. And that was exactly the conclusion that the United States Supreme Court reached when it denied an application for injunctive relief in South Bay United Pentecostal Church v. Newsom. The Court held that the distinctions drawn by the state’s order were reasonable. More to the point, it found that beyond broad limits, these were questions best left to the experts. Some orders around the country have suggested actual anti-religious bias. But not most.

The proviso is this: what might be at play is not classic anti-religious bias but a more subtle discrimination between what many of us might consider “good” theologies and “bad” theologies.

Another consideration here is that the government might have good reason to treat places of worship as distinct items in catalogs of permitted and barred activities. Religious services are not like other activities: they often last longer and involve more talking, singing, and touching. Moreover, while some orders have put constraints on the details of services especially by limiting the number of people who can gather that approach poses its own risks to religious liberty. Worse yet, an attempt to further micromanage the conduct of services, as some orders have tried to do by limiting singing or the like, or devising “neutral” rules that end up distinguishing among different forms of worship, would violate an important sub-constitutional principle that I have elsewhere called “analogy of dignity”: in many contexts, we are reluctant to differentiate among religious communities solely on the basis of their distinct theologies, even when such differentiation might be rational.

The Level II use of comparators is different. And more speculative. But it is also important and resonant. It is worth discussing now precisely because this latest controversy so sharply illuminates the full range of issues raised by principles of free exercise.

Religious liberty cases can take several forms. Discrimination claims challenge the very legitimacy of a law or rule. If the claim prevails, the rule falls. But religious folk can also claim an exemption from an otherwise applicable law. That sort of claim need not suggest a fatal defect in the rule, but instead points to a conflict between the law and the believer’s own religious commitment: the law either penalizes the believer for doing something that the believer’s faith commands or requires the believer to do something that the believer’s faith forbids. In the 1960’s, the Supreme Court held that the government had to grant a religious exemption in the face of such a conflict unless the law was supported by a compelling government interest.

Smith was a religious exemptions case. It involved the application of a ban on peyote use to members of the Native American Church who used peyote in their rituals. The Court in Smith steered away from the 1960’s cases. It held that the idea of religion-based exemptions was a “constitutional anomaly” that such exemptions, quoting a 19th century case, would “permit every citizen to become a law unto himself.” (Congress then passed the Religious Freedom Restoration Act, but that is another story.)

But ambiguous dicta in Smith suggested some exceptions. (Excuse the wheels within wheels.) One of those is what some call the “most favored nation” principle: if the government draws classifications that do not give religious interests the same respect that they give comparable secular interests, then it must grant religious exemptions unless it can demonstrate a compelling government interest.

But what makes religious and secular interests comparable? Not every law that has exceptions should trigger the “most favored nation” principle. But I have argued in my own work that what is often necessary is the sort of empathetic understanding that might allow us to draw analogies between religious and secular interests. For example, in an opinion written by then-Judge Alito, a federal court of appeals held that a police department that allowed medical exceptions to its no-beards policy would have to demonstrate a compelling interest for not also allowing religious exemptions.

The upshot is that these sort of exemption claims differ from discrimination claims in two ways. First, because they concern exemptions, they would only be available to faith communities that could point to an actual religious obligation to hold live services. Although courts usually take faith assertions at face value, such claims would in principle put on the table the fine distinctions that I drew earlier between theological justifications and sociological or political proclivities. If nothing else, they might prompt faith communities to articulate their own rules of religious life, not only to the courts, but to themselves.

Second: the Level II comparisons differ from the Level I comparisons in discrimination claims. At Level I, a rule’s classifications are assessed from society’s perspective: are religious services really more likely to spread contagion than other activities, and are they less necessary to the provision of basic social needs than food or medical care? The point, after all, is to smoke out possible government bias on its own terms.  

Should we not, for example, take seriously a Catholic believer’s claim that the Eucharist is a form of nourishment to the extent that shutting down Mass is comparable to shutting down food stores?

In a Level II analysis, however, another factor comes up: is there an analogy, supported by empathetic understanding, between a given set of religious and secular interests? Should we not, for example, take seriously a Catholic believer’s claim that the Eucharist is a form of nourishment to the extent that shutting down Mass is comparable to shutting down food stores?  The goal here is not to decide whether the government is discriminating but whether it is open to respecting religious claims on a religion’s terms.

The Level III analysis only arises if the Level II analysis or some other consideration ends up triggering the compelling interest test.  When a court does need to evaluate the government’s interest under this more stringent test, it might need to look to the rule’s other exclusions and inclusions to help evaluate that interest. This inquiry is like that at Level I in that it reverts to a more “objective” assessment of consistency. But the standard here is different: not mere rationality and good faith, but compelling interest.

Two last points: first, even constitutionally required exemptions might prompt the “analogy of dignity” concern that I raised earlier. As I have argued elsewhere, the understandable tendency of our legal system, in some contexts at least, is to expand exemptions to all faith communities. The classic example is the statutory clergy-congregant privilege, which almost from the start was not limited to Catholics for whom the confessional seal is sacramentally significant.  How this consideration of “analogy of dignity” should figure in judicial exemption decisions, as opposed to statutes, is an unresolved but important question.

Second, I hinted earlier at one proviso to my argument that shutdown orders do not discriminate against religion just because they explicitly include houses of worship as distinct categories. The proviso is this: what might be at play is not classic anti-religious bias but a more subtle discrimination between what many of us might consider “good” theologies and “bad” theologies. As a matter of constitutional principle, this would be wrong. If obvious, it should be reason enough for a court to take notice. At a deeper level, though, it is understandable and even salutary that our society would engage in an implicit, even unarticulated, conversation about our collective moral sensibilities, including at least to some extent our common public theology. As this pandemic has shown, no religious congregation gathers itself in pristine isolation. More broadly, as I have written elsewhere in a different context, “No normative world stands in isolation, especially in moments of crisis.” Recognizing that simple fact as much as it unsettles my own decidedly pluralistic instincts is also an inevitable part of the fraught encounter between religion and state. ♦

Perry Dane is a Professor of Law at the Rutgers Law School.  His research and teaching interests include religion and the law, conflict of laws, the jurisprudence of Jewish law, legal pluralism, the debate on same-sex marriage, constitutional law, comparative constitutionalism, jurisdiction, and the law of charities.