The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over at the First Things site today, I have an essay on the recent string of church closure cases, which David and Josh have written about here. To my mind, the most important factor in these cases is judges' belief that they should defer to the experts and local authorities in a public health crisis. That makes a lot of sense, but depends on the experts and authorities acting credibly and in a good faith way. Lately, the record doesn't look so good:
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.
You can read the whole essay here.