Friday, November 26, 2021
Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics
Brady Earley (University of Chicago), Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics, SSRN (2021):
This article undertakes a comparison of legal restrictions on religious gatherings in the United States during the 1918 Spanish Flu pandemic and the COVID-19 pandemic. After contextualizing each pandemic within its legal, political, and social culture, the analysis distills prevailing principles between the two health crises and their approach to religious liberty. Evidence suggests that courts in both periods relied upon proportionality and equality to resolve disputes between government bans on worship services and conscientious objectors. However, the experience of multiple local governments in 1918 models a better way. Instead of using proportionality or equality, these local officials relied on reciprocity between government and religious groups. Their approach tended to produce fewer bans, fewer deaths, and fewer cases during the 1918 pandemic and offers a useful precedent for government officials currently managing the religious freedom concerns of COVID-19.