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COVID-19 and the Question of Religious Free Exercise
The emergence of COVID-19 has exacerbated a number of long-standing social and political fault lines within the United States. Yet, notwithstanding such fault lines, almost all Americans can agree on one thing: gatherings on remote venues such as Zoom are not the same thing as in-person gatherings. This has been the case for everything ranging from school classes to movie-watching parties to Thanksgiving dinners, and it is certainly the case for religious services. In other words, there is no question that the strictures that have unevenly blanketed the United States in the wake of the spring 2020 eruption of COVID-19 have imposed a burden on many religious communities—initially in the form of stay-at-home orders and, gradually, in the form of persisting social-distancing requirements. But, while there is little doubt that particular religious communities have been burdened in the era of COVID-19, it is the decision to take this burden into the courts that has raised a truly difficult question: What does this burden on religion mean in the eyes of the law?
An exploration of this question raises a whole set of other questions: How much of a burden does a particular COVID-19–related restriction place on a particular religious community? Are members of that community obligated to prove that they are being significantly burdened rather than merely inconvenienced? If so, how does one “prove” the significance of a burden? Do burdens on the practice of religion warrant a different kind of consideration than those inflicted on secular practices and, if so, why? In the face of a deadly pandemic, do such burdens, religious or otherwise, even matter? All these questions fall under the umbrella of the First Amendment to the U.S. Constitution—specifically its free exercise clause. Because this clause is practically as old as the Constitution itself, the questions raised by COVID-19 are in a sense both old and new; COVID-19 has inflamed preexisting conflicts surrounding the Constitution that reach all the way up to the U.S. Supreme Court and well back into American legal history. Thus, however we may feel about the resistance among particular religious communities to COVID-19 regulations, it is important to recognize that such resistance implicates long-standing and unsettled questions in American law.
The Contours of Free Exercise
The U.S. Constitution contains two clauses designed to outline the protections afforded to religious beliefs and practices and the relation of such beliefs/practices to the government. The wording of each clause is minimal, which has given rise to a variety of interpretations of the specific church-state contours embedded in this founding document. Broadly speaking, however, the establishment clause prohibits the government from “endorsing” one religion over others while the free exercise clause prohibits the government from “burdening” citizens’ religious beliefs and practices unless certain conditions are met.
The question of how one determines what constitutes a free exercise burden and which specific conditions must be met to render such a burden acceptable are complex and contentious. Nearly sixty years ago, the U.S. Supreme Court devised a “test” to translate the somewhat vague language of the free exercise clause into a more concrete mechanism of adjudication. The so-called Sherbert test (named after the 1963 case in which the Court formulated this mechanism) attempts to balance the competing interests of a religious claimant and the government in the following way:
•if the claimant can show that their sincere exercise of religion is being substantially burdened by the government policy in question,
•then the government must demonstrate that it has a compelling reason for creating such a burden and
•that there was not some alternative way it could have accomplished its goal that would have created less of a burden for the claimant.
The italicized words represent points of particular importance. The person raising a free exercise claim must be sincere, and they must be able to show that their exercise of religion is being substantially burdened, not merely inconvenienced. If they can demonstrate these two things, the government is put to a strenuous test: it must prove not merely that it has a reason for engaging in an action that burdens the exercise of religion but that it has a “compelling” reason to be engaging in this action—a word that triggers legal scrutiny of the highest order. And, even if the government is able to meet this exacting level of scrutiny, it must also prove that its policy could not have been more narrowly tailored to accomplish its goal in some less burdensome way.
In the early 1990s, the Sherbert test went through a fairly dramatic transformation, so today there is a more complicated legal edifice in place for analyzing free exercise claims. However, in circumstances related to COVID-19 restrictions, it is almost certain that the tenets of the Sherbert test still apply.1 What this means is that state and local governments can be and have been called upon by U.S. courts to give serious consideration to the religious burden caused by their COVID-19–prevention policies. This, in turn, entangles the measures we take to contain COVID-19 within a broader and much more long-standing legal debate over the nature of free exercise burdens, the appropriate mechanisms for assessing them, and the limits of the government’s obligation to remedy them.
The Two Burdens of COVID-19
What exactly does a burden on the exercise of religion look like in the era of COVID-19? From among a series of cases that reached the U.S. Supreme Court in 2020, two main complaints emerge. In the first place, claimants describe COVID-19–related regulations as inhibiting practices that are not merely important to them but are in fact central to the religious life of their community. As Agudath Israel Synagogue put it in one recent case, “Synagogues are a necessary and essential component of religious practice for thousands of Orthodox Jews.”2 Many Orthodox Jews pray “every day” in the local synagogues, and “the services that the synagogues conduct on Saturdays and Jewish holidays form a vital part of Orthodox religious worship.”3
The Roman Catholic Dioceses of Brooklyn describes COVID-19 restrictions as mechanisms that deny to parishioners access to “in-person Mass,” a practice that is “‘absolutely essential’ to the Catholic faith tradition.”4 Even as churches within the diocese had willingly altered the means by which the sacrament of Holy Communion is administered—refraining from distributing wine or placing the Communion wafer directly on parishioners’ tongues—the denial of access to in-person Mass has been described as a bridge too far, severely limiting the diocese’s ability to sustain the religious life of the community.5 Since “receiving the Holy Communion for a Catholic is the essence of what it means to be Catholic,” the diocese describes virtual substitutes such as livestreaming as “inadequate” and even “impossible” because “the priest has no way of bringing Communion to every household.”6
Calvary Church, an evangelical church in Nevada whose case was ultimately denied a hearing by the Supreme Court in both 2020 and 2021, describes virtual or drive-in services as practices that fail to “meet the Bible’s command that Christians gather together for corporate prayer, worship, and scriptural teaching.”7 As they put it in their legal brief, “Ekklesia,” the Greek word in the New Testament translated as “church,” means “assembly.” And Calvary Chapel views church gatherings as sacred assemblies that embody Christ on earth and are the best expression of “His image and likeness.” If a body of believers fails to hold in-person gatherings, Calvary Chapel views it as ceasing to be a church in the biblical sense.8
As with Agudath Israel Synagogue and the Roman Catholic Diocese of Brooklyn, Calvary Church’s claim about the religious necessity of in-person gatherings reflects an orientation that is widespread within its respective religious tradition. The biblical textualism manifest in the reference to the New Testament’s commands and etymology has been a key feature of Protestant Christianity spanning all the way back to its origins, just as the corporeal administration of the Eucharist and the communal observation of the Jewish holidays are venerable features of, respectively, Roman Catholicism and Orthodox Judaism.
Of course, none of this is to say that the emphasis placed on in-person practice in these cases is universal or even indisputable; that is certainly not the case, as numerous retorts from Protestants, Catholics, and Jews have made clear. Indeed, on the very same day on which the Court released its opinion on the Roman Catholic Diocese case, none other than Pope Francis expressed opposition to the idea that the values of “autonomy or personal freedom” would outweigh the cultivation of care for the health and dignity of others that God demands of all Christians.9 Francis’s position on the specific free exercise dynamics of COVID-19 regulations was left oblique in his op-ed, though his reference to the misplaced values of autonomy and personal freedom strongly smacks of a criticism of the religious claims in these cases. And, when combined with public assurances made at the very beginning of the pandemic that the Catechism of the Catholic Church permits people to appeal “directly to God” if they are unable to undertake in-person confession, the head of the Catholic Church certainly appears not to identify a substantial free exercise burden in even the strictest COVID-19 regulations.10
The combination of the palpable public health threat of COVID-19 and the contestability of the claims about how central in-person worship is to particular religious traditions, such as Catholicism, might tempt us to dismiss or even disparage concerns like the ones raised in these cases. This impulse, however, flies in the face of a key tenet of U.S. free exercise jurisprudence—namely, the idea that courts have no right to pass judgment on the veracity of religious claims. As the U.S. Supreme Court put it in a seminal case from 1944, the principle of free exercise categorically prohibits people from being “put to the proof of their religious doctrines or beliefs.”11
The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views.12
What this precedent amounts to on a practical level is that, as long as free exercise claimants are sincere in their beliefs, their understanding of the actual operation of their religion—including which elements of doctrine or practice are indispensable—is beyond the purview of legal assessment. This principle applies to members of a religious tradition with an official leader, such as Catholicism, no less than it applies to members of less hierarchical religions, such as Judaism and Protestantism. Thus, while the fact that members of a particular religious tradition can and do disagree on the severity of the burden posed by COVID-19 restrictions is certainly an interesting feature of the COVID-19 landscape, this contestability is, ironically, not a feature that is likely to enter into the legal assessment of burden.
This brings us to the second burden claim that has surfaced in response to COVID-19 regulations. If the first formulation of religious burden focuses on the beliefs and practices of particular communities (whether or not a given community holds a unanimous opinion about such things), the second formulation focuses on the perception of a burden that is being placed upon “religion” in general. This formulation of burden rests on the idea that the United States has been witnessing a long-standing trajectory of both social and political discrimination against religion and that today’s COVID-19 regulations are merely the latest manifestation of this discrimination. This is a narrative whose broader contours have been espoused for decades by members and allies of the so-called religious Right. Ranging from Ronald Reagan’s 1980 lament that, “under the pretense of separation of Church and State, religious beliefs cannot be advocated in many of our public institutions but atheism can” to Mitt Romney’s 2007 warning about the impending establishment of a “religion of secularism,” this narrative attributes Christians’ declining demographic and cultural power as the result of a rising anti-religiosity, particularly among America’s liberals.13 This “religious discrimination” complaint has held sway among particular Christian communities—especially Protestant communities—since well before the onset of COVID-19. To raise just one example, a 2017 survey conducted by PRRI found that 57 percent of white evangelical Protestants and 40 percent of nonwhite Protestants believe that Christians face “a lot of discrimination” in the United States.14 Like all emerging church-state controversies, the issue of COVID-19 regulations has played into these preexisting perceptions in its own unique way.
If it seems outlandish to imagine that houses of worship could claim that they are being burdened both in a substantive sense pertaining to particular religious practices and in this more generic way, it is worth noting that a growing segment of justices on the U.S. Supreme Court appear strongly sympathetic to just such an argument. The crux of this argument is that certain COVID-19 regulations simultaneously impede central features of religious life while favoring central features of secular life. As Justice Brett Kavanaugh put it in one recent case, such regulations reflect the sensibility of a society that “assum[es] the worst when people go to worship but assum[es] the best when people go to work or go about the rest of their daily lives in permitted social settings.”15 This assumption is the product of a pervasive favoritism of, in Justice Neil Gorsuch’s words, “secular convenience” over religious necessity.16 Kavanaugh’s and Gorsuch’s characterizations of secular favoritism strongly resonate with the religious discrimination narrative described above, but it is Justice Samuel Alito who has made this connection in a particularly high-profile way. In November 2020, Alito delivered an uncharacteristically political address to the Federalist Society in which he pointedly situated the management and litigation of COVID-19 within a broader context of religious discrimination. COVID-19 restrictions, he asserted, demonstrate that “religious liberty is fast becoming a disfavored right” in the United States.17
One of the initial flashpoints for this confluence of COVID-19 and the religious discrimination narrative was the question of “essentiality”—the question of which types of organizations are providing services so important as to be exempted from both early shelter-in-place mandates and other COVID-19–related regulations. Though the answer to the question of whether houses of worship belong in the same category as grocery stores and hospitals may seem to many to be an obvious no, the very notion of state and local governments assuming the power to exclude in-person worship from the category of “essential” services is a scenario almost perfectly calibrated to trigger complaints of religious discrimination.
In fact, the political category of “essentiality” triggers this narrative in two different ways. In the first place, it appears to dismiss the profundity of the role that religion plays in the lives of many Americans—particularly in times of crisis. In the words of one widely circulated California petition, “the Christian church and other faiths have been relegated to ‘nonessential’ status by governing agencies throughout the United States” in stark contrast to their own understanding of religion’s social function.18 This complaint has been echoed by Michael J. McConnell, former federal judge and current professor at Stanford Law School: “The real problem here, [which] is quite disturbing from a constitutional point of view[,] . . . is that many governors have taken the view that religious activity may be completely banned because it is essentially voluntary. It is treated the way you might treat going to a movie.”19 Even as McConnell has voiced support for COVID-19 regulations, he has decried the governmental categorization of essentiality as a profoundly subjective maneuver that is almost always bound to diminish the significance of religion.
The category of essentiality also triggers the religious discrimination narrative in a more tangible way. After all, notwithstanding the understandable differences of opinion as to whether religion does indeed play an essential role in human life, it is important to bear in mind that the category of essentiality functions not merely as a descriptor but also as a justification for state intervention and even punishment in the event of noncompliance. In other words, whether or not one is convinced by the charge that there is a kind of “semantic” favoritism at stake in the category of essentiality, there is no question that the exclusion of houses of worship from the category of essentiality opens the door to real-world governmental punishments, such as the leveraging of fines. The specter of a government-wielded categorization that opens the door to punitive measures against religious communities is something that, even under the most bipartisan of circumstances, has the potential to engender anxiety and even outrage.
Ironically, the momentum of the free exercise resistance to COVID-19 regulations has only increased as the United States has moved from initial emergency shelter-in-place measures into more protracted mitigation measures in the weeks and months following the initial outbreak. As states have worked to create regulations capable of protecting the public while also remaining responsive to fluctuating case numbers, they have inevitably confronted the need to categorize businesses, houses of worship, and other venues in some more granular way than a simple essential/nonessential binary. This, of course, has raised a new set of disputes about whether and how the government goes about determining the status of houses of worship in comparison to other venues. In this context, the claim of semantic favoritism recedes; after all, there is no judgment of essentiality at stake when a church is classified as similar to a hardware store in terms of the duration of time typically spent inside of each venue. However, the regulations that have arisen in the aftermath of states’ initial shelter-in-place orders have raised their own set of legal questions, each of which is likely to breathe new life into the religious discrimination narrative.
For one thing, whatever regulatory systems states devise to make the long journey from emergency closure to postvaccine herd immunity will be in place for a protracted period of time, effectively placing houses of worship on an indeterminate trajectory of regulation at the discretion of government. Indeed, the more flexibility a state or local government builds into its particular phased reopening plan, the more it invites charges that it is subjecting religious communities not merely to the regulatory powers of the government but also to its caprice. After all, the very purpose of a flexible reopening plan is to give government officials as much latitude as possible in balancing, on the one hand, the workaday well-being of their districts and, on the other, the privations required to prevent the spread of COVID-19. This scenario is almost perfectly tailored to engender anxiety and suspicion about which facets of communal well-being governors will prioritize—and, moreover, how long such governmental discretion will endure. When combined with the fear that political officials will be inclined to prioritize profit-generating venues over other venues, the scene has been set for a potent free exercise dispute.
These dynamics featured prominently in the cases that came before the Court in 2020. In Calvary Chapel v. Sisolak, for example, the governor of Nevada categorized houses of worship in such a way that they were placed under heavier restriction than the state’s casinos. Though Governor Sisolak argued that casinos are, as a rule, much more heavily regulated than houses of worship and would therefore be easier to monitor and even quickly shut down in the event of rising COVID-19 cases, this regulatory framework all but invited an incensed Justice Gorsuch to raise the specter of “[a] world in which the Constitution permits Nevada to favor Caesar’s Palace over Calvary Chapel.”20 In Roman Catholic Diocese of Brooklyn v. Cuomo, Gorsuch depicted New York’s targeted reopening plan as emblematic of a regulatory landscape in which governors across the United States have, “at the flick of a pen, [a]sserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples.”21
Gorsuch’s combative language draws the deprivations that COVID-19 has created for particular Protestants, Catholics, and Jews into alignment with perennial American anxieties about governmental overreach. Importantly, this generalized anxiety is by no means limited to evangelical Christians: Americans from across the religious spectrum evince discomfort over the idea of unrestrained governmental incursion into the realm of religion. The advent of COVID-19 has not necessarily changed this.
For example, when presented with questions that referenced the tension between religious free exercise and COVID-19 restrictions, respondents from across religious traditions voiced substantial—though far from unanimous—support for religious communities’ free exercise (Djupe, Burge, and Lewis 2020). Indeed, in a political climate in which evangelicals are so often highlighted as today’s biggest free exercise stalwarts, sizable minorities of Black Protestants, Catholics, and those of an “other faith” expressed support for the idea that the freedom to worship is “too important to close in-person services due to the corona virus” (35.5 percent, 35.9 percent, and 41.7 percent compared to 28.9 percent among evangelicals). Though such objections undoubtedly vary in relation to specific state regulations and specific developments in the ongoing pandemic, these responses serve as a reminder of the broader landscape of anxieties and free exercise commitments at stake in the era of COVID-19.
The Future of COVID-19 Regulations?
The legal navigation of religious free exercise in the era of COVID-19 has revealed that the question of burden involves a mixture of, on the one hand, substantive claims grounded in particular religious traditions and, on the other, more generic claims about government discrimination against religion as a whole. Arguably, these are two very different types of burden, but they are easily conflated; indeed, powerful legal voices like Justices Gorsuch, Kavanaugh, and Alito have already laid important groundwork for a conflation of these two conceptions of burden, and there is little reason to believe that this move will prove any less appealing to conservative colleagues, such as Justices Clarence Thomas and Amy Coney Barrett.
This twofold logic of burden is intertwined with the Court’s long-standing commitment to viewing the free exercise clause as something that prohibits the government from questioning the veracity of religious claims. This commitment, as we have seen, takes a legal inquiry into the substance of the claims themselves off the table—effectively granting to religious communities that the deprivation of in-person worship is indeed a substantial burden, whether or not this claim is universally held within a given community.22 What this leaves on the table is a legal inquiry into the question of whether the government has a compelling reason to be burdening a religious community and whether it could not have accomplished this interest in a less restrictive manner. This legal inquiry is precisely what the Court has now demanded of state and local COVID-19 regulations in the wake of its Roman Catholic Diocese and Agudath Israel decisions.
However, even as they are highly likely to side with claimants on the matter of the centrality of in-person worship, the Court’s most conservative members have now tied their legal assessment of COVID-19 regulations to a much more sweeping logic of discrimination against religion. Unlike the refusal to question the veracity of religious claims, this formulation of religious discrimination does not stem from a long-standing jurisprudential commitment; it reflects a much more contemporary development in the Court’s understanding of the Constitution’s religion clauses. The array of legal, political, and social factors that have contributed to the emergence of this approach is complicated: it includes the decline of the social and political hegemony of white American Christians,23 the rise of influential Christian advocacy groups that have crafted new legal strategies to navigate this waning sociopolitical hegemony,24 the emergence of deep rifts among legal professionals about how to navigate the free exercise clause in the era of rising support for LGBTQ rights,25 and a shift in the Court’s reading of the establishment clause that has opened the door to all manner of “accommodations” of religion within the public sphere.26 Where COVID-19 regulations are concerned, these various developments cohere into a baseline assumption that not only must religious facilities be subject to the same regulations as comparable secular facilities but that houses of worship are likely to be perpetually threatened by state and local governments’ tendency to categorize in a way that favors “secular” metrics of well-being over “religious” ones.
In this understanding of things, the free exercise clause requires courts to be especially protective of religion and, by extension, especially skeptical of any policies geared toward the regulation of houses of worship. This highly defensive approach to the free exercise clause is what we might call the “courtroom” version of a broader religious discrimination narrative, and it has already featured prominently in the assessments that the Court’s more conservative members have offered of particular COVID-19 regulations. Such assessments range from Kavanaugh’s indictment of Nevada for its “implicit judgment that for-profit assemblies are important [while] religious gathering are less so” to Gorsuch’s excoriation of New York’s “color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”27 In such instances, the burden at issue is just as much about governmental disrespect and overreach as it is about the inhibition of particular religious practices. Ultimately, such characterizations of burden make clear that the advent of COVID-19 has opened yet another front on a much more long-standing culture war over the separation of church and state.