Bad Faith Restrictions on Public Worship

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First Things - Web Exclusives

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The COVID-19 pandemic has scrambled America’s priorities, including with respect to religious freedom. No one could have anticipated it back in January, but the legality of public worship has become an item on our national agenda. Because of the pandemic, state and local governments across the country have prohibited (or restricted) both indoor and outdoor worship gatherings. Such gatherings, officials maintain, threaten to spread the virus in religious communities and the general population. In response, religious believers—at first almost exclusively Evangelical Christians, but increasingly Jews and Catholics as well—have sued in federal court, arguing that the restrictions violate the First Amendment’s Free Exercise Clause.

The cases across the country are highly fact-specific, but all apply the Supreme Court’s landmark 1990 decision in Employment Division v. Smith, which introduced a test for evaluating claims under the Free Exercise Clause. According to Smith, a “neutral” and “generally applicable” law that incidentally burdens religion does not violate the First Amendment. By contrast, a law that is not neutral and generally applicable—in other words, a law that targets religion for disfavored treatment—is subject to a balancing test known as “strict scrutiny.” To justify such a law, the state must show that its compelling interest in enforcing the law outweighs the burden on the plaintiff’s exercise of religion.