The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At SSRN, I have a new draft that explores how courts across the globe have evaluated restrictions on public worship during the Covid epidemic. Courts have evaluated such restrictions based on intuition and balancing. This is true whatever formal test the courts have used, either the proportionality test outside the US, which expressly calls for judges to weigh the costs and benefits of a measure, or the Employment Division v. Smith test inside the US, which supposedly rejects judicial balancing in favor of predictable results. Judges have weighed things differently, of course; some have upheld restrictions and others have not. But, in the Covid crisis, Smith has failed to prevent judicial assessments of pros and cons, as critics long predicted it would.
The cases reveal another trend as well. As Zalman Rothschild shows in a forthcoming study, judicial disagreements about Covid restrictions in the United States have closely tracked judges' partisan identities. At the Supreme Court, for example, Democratic-appointed justices have consistently ruled against religious plaintiffs in Covid cases and Republican-appointed justices, with one exception, have consistently ruled for them.
These partisan divisions should come as no surprise. No completely neutral basis exists for deciding whether a government has restricted religious exercise more than necessary to achieve public health goals. In a crisis, judges (like the rest of us) naturally strike the balance based on "priors"—commitments and intuitions about the comparative virtues and importance of religious exercise, for believers and for society. Those priors deeply divide Americans, and our divisions increasingly express themselves in partisan terms.
The Covid crisis has revealed deep divisions in American society about religious exercise, the good faith of elites, the competence and benevolence of government, the credibility of scientific opinion, and many other factors. These divisions naturally influence how citizens—and judges—evaluate restrictions on communal worship. In the United States, the Covid crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and sometimes impossible, even during a once-in-a-lifetime pandemic.
The essay will appear in a forthcoming issue of the Journal of Law and Religion. Meanwhile, interested persons can read a pre-publication version here.