Restricting Worship During Covid

What the cases reveal

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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.

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  1. Legal or not is irrelevant to worship.

  2. " the good faith of elites "

    It seems a stretch to describe the people lying about religious claims with respect to vaccine requirement exemptions, or those who flouted a virus at large-scale religious gatherings during a pandemic, as "elites."

  3. the proportionality test outside the US, which expressly calls for judges to weigh the costs and benefits of a measure

    "Siri, how would someone explain proportionality who doesn't know anything about it except what it's called?"

  4. No completely neutral basis exists for deciding whether a government has restricted religious exercise more than necessary to achieve public health goals.

    "Completely" is doing a lot of work there...

  5. "No completely neutral basis exists for deciding whether a government has restricted religious exercise more than necessary to achieve public health goals."

    Which is why a complete "government can't ban religious gatherings rule" makes sense and would be consistent with the First Amendment.

    1. No completely neutral basis exists for deciding anything. Yet we still make decisions, the best we can. We balance the interests. Personally I don't think your proposed solution makes sense, because I don't think the right to participate in a religious gathering should automatically outweigh the public health considerations. Perhaps governments are getting the balance wrong in this case, but they should still have the power to try to achieve a balance.

  6. Choose reason. Every time.

    Choose reason. Every time. Especially over sacred ignorance, dogmatic intolerance, and virus-flouting silliness.

    Choose reason. Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for gullibility, backwardness, bigotry, ignorance, and superstition. By adulthood — this includes ostensible adulthood, even in the most desolate backwater one might find, especially during a pandemic — it is no excuse.

    Choose reason. Every time. And education, tolerance, progress, science, freedom, modernity, and inclusiveness. Avoid superstition, ignorance, bigotry, backwardness, authoritarianism, insularity, dogma, and pining for ‘good old days’ that never existed. Not 75 years ago. Not 175 years ago. Not 2,000 years ago. Not ever.

    Choose reason. Be an adult.

    Or, at least, please try.

    Thank you.

    1. Chose reason. not the babbling of indoctrinated political fools.

      Which is what we're doing, Artie. And why we always reject your positions

  7. God the VC is really boring. Of course anything is legal because we're in a PANDEMIC and an eternal never ending state of emergency. But all of the legal eagles say it's OK so there.

    PS: If you are going to declare an emergency I think you are required to define what ends the emergency

    1. Wreckinball, every pandemic outbreak in history has eventually subsided—including the ones which featured declarations of emergency. So will Covid end. At that point, need for public health emergency powers will end, and so will emergency declarations about Covid end, just as the others did. Calm down.

      1. You miss the point, Stephen: What defines the "end" of the "Covid Pandemic"?

        "No one catches Covid for 6 months"? It will never end.

        What is the precise, anyone can apply it / see that it's being honestly applied metric for "the Covid pandemic is over"?

        If you can't supply that, then the Covid emergency is over, and it's time to get back to normal

  8. 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

    1: "Elites" have no "good faith", see lying Dr Fauci, and the fact that he hasn't been fired.

    2: Government has no competence, and no benevolence. See Biden* Admin Afghanistan pullout. If you trust to either, you are a fool

    3: There are plenty of scientists who are whores, and will provide any answer you want so long as the pay is good. See the "Kentucky Study", where the CDC produced a headline that was a complete lie (claiming the study proved that Pfizer / Moderna /J&Js shot provides better protection from Covid than natural immunity from being infected, when the study very carefully avoided even looking at that question).
    Given the data they collected, it would have been trivially easy for them to analyze the question "do the Covid shots give better protection than natural immunity?" Since there's capable of actually writing comprehensible English language sentences, one must conclude that they did examine that question.

    One must further conclude that the answer came back "yes, natural immunity is better." And that they therefore left it to the headline writer to lie, while they settled for suppressing teh information their customer didn't want.

    If there's a partisan divide on any of this, it's because the people on the other side are lying, political twisted scum. Because the reality of the situation is undeniable

  9. The fact judges’ oinions closely track their ideologies suggests a need for rule based approaches rather than leaving things to judges’ oinions.

    1. Gosh, you mean like "you have to follow the written US Constitution, even when you don't like the outcome"?

      You mean like "the US Constitution isn't a 'Living' document, it's a written one. We know when society has 'evolved' it's position on something when the voters elect Representatives that change the law, not when some pinheaded loser in a black robe decides things should be different"?

      Ah, let me guess, you want it changed to the rule "the Left always wins." Right?

      Hint: when one side is fundamentally dishonest (that would be you Lefties), and the other side is not, then you will see a bifurcation of decisions based on the politics of the judges. The Left wing ones will violate their oaths of office, be domestic enemies of the US Constitution, and rule one way.
      The Right wing ones will rule according to the written US Constitution, the written laws, and then democracy, in that order.

      Since what the Left wants generally is to violate the hell out of the US Constitution, this sets up a conflict.

      Which is not the fault of the Right wing judges

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