For the last two years, a big story in law and religion, in the United States and throughout the world, has been the COVID-19 crisis. Over the course of the pandemic, governments everywhere have imposed restrictions on communal worship in the interest of public health, and religious organizations have filed lawsuits challenging their legality. Thankfully, the pandemic now seems to be waning, and governments have removed most restrictions. But the courts’ decisions on the legality of limits on communal worship offer important lessons that go beyond the current crisis. As in other contexts, in law and religion, the COVID-19 pandemic has revealed important trends that bear watching.

My State of the Field Essay in the Journal of Law and Religion, “Law, Religion, and the COVID-19 Crisis,” draws two lessons from the COVID-19 crisis, one comparative and one relating specifically to United States law. As a comparative matter, courts across the globe have faced the same problem: how to reduce the spread of the novel coronavirus without infringing the right to corporate worship, in an emergency where conclusive evidence was unavailable and the consequences a matter of life and death. Courts have approached the problem in the same way, by weighing the competing interests at stake. This was so regardless which formal test courts applied, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line drawing and balancing in favor of predictable results. Judges reached different conclusions about the legality of restrictions, of course, but doctrinal nuances made little apparent difference. The pandemic thus reveals affinities between proportionality analysis and the US approach, at least in times of crisis.

With respect to the United States, specifically, the crisis suggests a further lesson, not about affinities but about divisions. Scholars debate the extent to which ideological and political commitments affect judging generally. In the COVID-19 crisis, however, judicial disagreements have clearly tracked judges’ partisan identities, both at the Supreme Court and on the lower courts. 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. Judges, like the rest of us, strike the balance based on “priors”—intuitions about the comparative virtues and importance of religious exercise, for believers and for society. Those priors deeply divide Americans, and the divisions increasingly express themselves in partisan terms. In this environment, judges appointed by Republican presidents naturally tend to favor the claims of religious plaintiffs, while judges appointed by Democratic presidents naturally tend to disfavor them. In the United States, the COVID-19 crisis has revealed a political rift that makes consensual resolution of conflicts over religious freedom problematic, and sometimes impossible, even during a once in a lifetime pandemic.

Mark L. Movsesian is the Frederick A. Whitney Professor & Co-Director, Center for Law and Religion, at St. John’s Law School. His article can be read here, and the full latest issue of Journal of Law and Religion can be found by visiting this page.