Wednesday, March 31, 2021
Kathleen Brady (Emory University), COVID-19 and Restrictions on Religious Worship: From Nondiscrimination to Church Autonomy, Fides et Libertas (Forthcoming):
Religious litigants challenging COVID-19 restrictions on in-person worship services typically argue that these restrictions discriminate against religion in violation of the Free Exercise Clause. Demands for equal treatment have intuitive appeal, and they also fit with the Supreme Court’s current religion clause jurisprudence. However, there are a number of drawbacks to approaches that focus on equal treatment. It can be difficult to identify the appropriate secular benchmarks for determining whether discrimination has taken place, and religious congregations are usually not actually asking for equal treatment. What they really want is to maximize their ability to gather together safely in person. In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Supreme Court granted applications for emergency injunctive relief in two cases challenging 10- and 25-person limits on houses of worship in COVID-19 hotspots in New York. The Court found that New York’s rules favored secular activities over religious practice and failed to satisfy the strict scrutiny required of discriminatory action under the Free Exercise Clause. However, many of the examples of discrimination given by those in the majority seemed strained, and the justices appeared less interested in the threshold showing of discriminatory treatment than in applying heightened scrutiny to significant restrictions on religious worship. The Court’s shift in focus from discrimination to close scrutiny of worship restrictions is the right one, but those in the majority neither acknowledged this shift nor signaled a new framework or approach that would explain or guide it. In this short essay, I argue that the appropriate framework for analyzing restrictions on religious worship is the doctrine of church autonomy that has been emerging in the Court’s recent religion clause jurisprudence. Viewing conflicts over COVID-19 restrictions through this lens can better clarify what is at stake when clashes occur as well as better inform the scope and limits of institutional freedom in this context. This essay is based on a presentation for the International Conference on COVID-19 Pandemic & Religious Freedom: Reports from North America and Europe sponsored by Andrews University, Brigham Young University Law School Center for Law and Religion Studies, and University of Portsmouth (December 2-3, 2020) and a shorter presentation for the blog webinar Law, Religion, and Coronavirus in the United States: A Six-Month Assessment organized by Brigham Young University Law School, Emory University Law School, Notre Dame Law School, St. John’s University School of Law, and the Villanova University Charles Widger School of Law (October 2, 2020).