A Revealing Episode
For nearly two years, now, a big story in law and religion, in the United States and throughout the world, has been the COVID-19 crisis. No one anticipated this. In the United States at the start of 2020, lawyers and scholars were preoccupied with other issues, such as whether local governments could exclude religious schools from public scholarship programs,Footnote 1 and whether religious believers could claim exemptions from public accommodations laws that prohibit discrimination based on sexual orientation and gender identity.Footnote 2 In Europe, jurists disputed whether states could legally restrict ritual animal slaughter by observant Jews and Muslims.Footnote 3 Those debates have not ended. But a central issue on the law-and-religion agenda, one that has drawn academic, judicial, and popular attention, has turned out to be something completely different: whether, and to what extent, government can legally restrict collective worship during a public health emergency.
It might seem premature to draw lessons from a crisis still underway. At this writing, in late summer 2021, it remains unclear how the pandemic will continue to unfold. Governments have rescinded most of the restrictions they placed on collective worship during the pandemic's first year and the “flurry” of judicial decisions has ceased, at least for now.Footnote 4 Perhaps COVID-19 will ultimately fade from memory, much like the 1918 flu epidemic, and leave little trace on the law of church and state.Footnote 5 But the rise of the Delta variant suggests COVID-19 will be with us for some time. Moreover, enough case law exists to merit some early observations. Although crises can distort legal doctrine, they can also clarify, and that is the case here.Footnote 6 As in other contexts, in law, the COVID-19 pandemic has revealed dynamics that already existed and trends that were already underway.Footnote 7
In this essay, I draw two early lessons from the COVID-19 crisis, one comparative and one relating specifically to United States law.Footnote 8 A comparative approach is appropriate in this context. Sometimes, legal problems differ in ways that make comparisons tricky; determining whether the problems sufficiently resemble one another can be vexing.Footnote 9 In this crisis, however, courts faced the same problem: how to reduce the spread of the novel coronavirus without infringing the right to corporate worship. They did so, moreover, in an emergency setting where conclusive evidence was unavailable and the consequences, quite literally, a matter of life and death.Footnote 10 If any legal problems merit comparative analysis, this would seem to be one.
A comparative analysis of courts' responses to restrictions on worship during the COVID-19 pandemic offers something of a surprise. With respect to restrictions on religious freedom, scholars often highlight the differences between the proportionality test that courts outside the United States favor and the U.S. approach under Employment Division v. Smith, a 1990 Supreme Court decision on the scope of the First Amendment's Free Exercise Clause.Footnote 11 Proportionality analysis expressly calls for judges to weigh the relative costs and benefits of a restriction,Footnote 12 while Smith rejects judicial balancing in favor of legislative supremacy and predictable results.Footnote 13 During the pandemic, however, whatever formal test they have applied, courts have approached the problem in essentially the same way, through intuition and balancing. Smith has failed to prevent judicial assessments of pros and cons, as critics long predicted it would.Footnote 14
Across the globe, the legality of COVID-19–related restrictions has depended ultimately on judges' weighing of the competing interests at stake.Footnote 15 This necessarily has entailed “value judgments” about the importance of religious exercise, compared to things like grocery shopping and dining out, and the need to accommodate some religious believers.Footnote 16 Judges have weighed things differently; some have upheld restrictions and others have not. The important comparative point, though, is that doctrinal nuances in U.S. and foreign law have made little apparent difference.Footnote 17 The pandemic thus reveals affinities between proportionality analysis and the U.S. 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.Footnote 18 In the COVID-19 crisis, however, judicial disagreements have closely tracked judges' partisan identities.Footnote 19 At the Supreme Court, Democratic-appointed justices consistently have ruled against religious plaintiffs in COVID-19–related cases. Republican-appointed justices, with one exception, consistently have ruled for religious plaintiffs, and the appointment of Justice Barrett to replace the late Justice Ginsburg during the pandemic decisively shifted the Court in their favor.Footnote 20 As Zalman Rothschild writes, when the Court's “political make-up shifted, so did its stance on COVID-19–related restrictions on religious institutions.”Footnote 21
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. At some point, “the relatively pure science runs out,” and decisions require “normatively contested moral and political judgments.”Footnote 22 Judges, like the rest of us, naturally strike the balance based on “priors”—commitments and intuitions about the comparative virtues and importance of religious exercise, for believers and for society.Footnote 23 Those priors deeply divide Americans, and our divisions increasingly express themselves in partisan terms.Footnote 24 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.
The “pandemic,” in journalist Lawrence Wright's words, has “exposed many different fractures” in U.S. society, not only concerning religion.Footnote 25 Deep divisions exist about the good faith of elites, the competence and benevolence of government, the credibility of scientific opinion, and many other factors. All these divisions have influenced the ways in which citizens—and judges—have evaluated restrictions on communal worship. But varying opinions on the value of religion and religious freedom have had a central role in the COVID-19–related legal cases. In the United States, the COVID-19 crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and sometimes impossible, even during a once-in-a-century pandemic.Footnote 26
Outside the United States: The Proportionality Test
Outside the United States, courts have decided COVID-19–related cases under the so-called proportionality test,Footnote 27 “the common method worldwide for adjudicating constitutional rights.”Footnote 28 Proportionality analysis involves “a limitation phase and a justification phase.”Footnote 29 In the limitation phase, the court asks whether the law in question “infringes or interferes with a right.”Footnote 30 If the answer is yes, the court moves to the justification phase, which asks whether “the interference is justified in virtue of being proportionate to the aim or value of the law.”Footnote 31 To decide whether a measure is justified, the court employs a three- or four-part test that asks, in one form or another, whether the law in question “(1) pursues a legitimate purpose, (2) actually advances that purpose, (3) restricts the right no more than is necessary to achieve the purpose, and (4) restricts the right in a proportionate way.”Footnote 32 In practice, these requirements overlap, and the last two are the most significant, especially the necessity requirement, which in formal terms resembles the least-restrictive-means requirement in U.S. law.Footnote 33 Indeed, according to Justin Collings and Stephanie Barclay, “many proportionality courts frequently end their analysis at the necessity step.”Footnote 34
Courts in many countries have applied proportionality analysis to COVID-19–related restrictions, including Canada, France, Germany, Greece, and Scotland, with mixed results.Footnote 35 Some courts have found restrictions justified; others have not.Footnote 36 Sometimes the same court has found restrictions justified at one stage of the pandemic but not at later stages, as more information about COVID-19 has become available.Footnote 37 The French Council of State and German Federal Constitutional Court are good examples of this phenomenon.Footnote 38 The details of specific restrictions presumably made some difference to the outcomes in these cases, as did the fact that various national legal systems, each with its own understanding of proportionality and its own rules “for the exercise of emergency powers,” were involved.Footnote 39 But the main reason for the different results was surely the proportionality test itself, which relies so prominently on judicial line-drawing and balancing.Footnote 40 Judges applying the proportionality test naturally weighed risks and benefits differently.
A good example comes from Scotland. In Reverend Dr William J U Philip and Others,Footnote 41 the Outer House of the Court of Session ruled that a ban on public worship violated the proportionality test under constitutional principles and under Article 9 of the European Convention on Human Rights, which confers a right to manifest one's religion in public, including through worship.Footnote 42 In January 2021, during an outbreak of a virus variant, Scottish officials ordered places of worship in the country to close temporarily, except for a few limited purposes, including funerals, marriage ceremonies (comprising no more than 5–6 people), and “essential voluntary services” like “food banks,” “blood donation sessions,” and “vaccination centers.”Footnote 43 The order effectively prevented “any form of communal worship” in Scotland, either “indoors or outdoors.”Footnote 44 The closure also extended to movie theaters, sports stadiums, and conference centers, again with a few exceptions, and to most retail establishments, though not to “essential” businesses like “food retailers, pharmacies, funeral directors,” and “bicycle shops.”Footnote 45
The Scottish authorities and the claimants agreed that the ban on public worship interfered with the claimants' right to manifest their religion.Footnote 46 The proportionality analysis thus moved to the justification phase, which Lord Braid described as follows: “(i) whether the objective being pursued is sufficiently important to justify the limitation of a protected right; (ii) whether the measure is rationally connected to the objective; (iii) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and (iv) whether, balancing the severity of the measure's effect on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”Footnote 47
No debate existed on the first two questions. The parties agreed that the government's objective, “reduction in risk for the protection of health and preservation of life,” was legitimate and sufficiently important in principle to justify limiting the right to worship.Footnote 48 Moreover, a rational connection existed between that objective and the government's decision to ban many public gatherings. “It is not irrational to conclude,” Lord Braid wrote, “that the more people stay at home, the less the virus will be passed on.”Footnote 49
Lord Braid concluded, however, that the total ban on communal worship was not necessary to achieve the government's aim. Several factors influenced his decision, including the authorities' apparent concession that the risk of transmission in public worship was relatively small and their failure even to consider less restrictive measures, such as keeping the density of occupants low and providing good ventilation.Footnote 50 The most important consideration, he suggested, was the fact that the authorities had allowed some exceptions to the ban on public gatherings, thus acknowledging, at least implicitly, that meetings could “be safe if suitable mitigation measures [were] adopted.”Footnote 51 If it was not too risky, for example, to open movie theaters as jury centers as long as people observed mitigation requirements, why was it too risky to open places of worship?Footnote 52 The existence of exceptions showed that the government could equally achieve its aims through a measure less intrusive than an outright ban.Footnote 53
Lord Braid dismissed deferring to public health authorities because “a scientific judgment [was] involved”Footnote 54 and the authorities possessed “expertise and experience” he lacked.Footnote 55 The “science” was “not in dispute.”Footnote 56 Everyone agreed that COVID-19 was “an extremely serious and highly transmissible disease which can result in serious illness and death,” and that mitigation measures like “social distancing, face masks, hand washing and good ventilation” could “reduce the risk of transmission.”Footnote 57 The ban on communal worship failed the necessity test, not because anyone questioned the science, but because the authorities had not explained why, given the scientific consensus, some public gatherings could proceed safely with mitigation measures but communal worship could not. This inconsistency undercut whatever deference the court might have given to the authorities' expertise and experience.
Lord Braid's decision that the ban was not necessary could have ended the proportionality analysis—as we have seen, courts frequently stop at this point—but he continued to step four, the balancing stage, “for completeness and in case I am wrong.”Footnote 58 Regarding the risk avoided, only a relatively small number of persons with COVID-19 infections apparently had attended religious services, “in comparison with other activities.”Footnote 59 A total ban on communal worship, therefore, would not likely contribute “to a material reduction” in the risk of COVID-19 transmission.Footnote 60 Moreover, the existence of exceptions in other circumstances undercut the benefit of a “‘bright-line’” rule respecting religious gatherings.Footnote 61 By contrast, the authorities had underestimated the importance of the right to manifest one's religion, especially compared with other activities they had determined to be “essential” and allowed to continue.Footnote 62 True, the ban was only temporary (though it had stretched on for months) and believers could participate in online worship.Footnote 63 Some believers evidently found this arrangement unobjectionable.Footnote 64 But online worship was at best “an alternative to, not a substitute for,” communal in-person worship—“worship-lite,” Lord Braid called it—and, as a result of the ban, some important ceremonies could not occur at all, including communion, baptism, and confession.Footnote 65 Even though the question was “finely balanced,” the burdens of a total ban on communal worship outweighed the benefits.Footnote 66
As this summary shows, intuitive judgments had a central role in Philip. Consider the necessity determination. Whether a public-health measure goes too far is not a question with a categorical answer. It is a judgment call depending on many factors, including the nature of the risk, the relative importance of the activities restricted, and, crucially, the credibility of public-health officials who might, because of their professional commitments, dismiss religious viewpoints.Footnote 67 For Lord Braid, the temporary ban on communal worship was excessive, given the risks involved, and in the circumstances, he felt he could evaluate the evidence himself and need not give public-health officials the benefit of the doubt. The point is not that he was wrong. The point is a judge with contrary views could just as plausibly have drawn the lines differently. “Narrower tailoring,” as Cass Sunstein observes, “is almost always imaginable.”Footnote 68
Intuitive judgments also figured centrally in step four, which expressly required Lord Braid to weigh competing benefits and burdens. His conclusion in this respect depended on intuitive and contested assumptions, for example, that in-person, communal worship is equally important during a pandemic as obtaining food and that temporarily requiring believers to avail themselves of online services imposed an unacceptable cost (“worship-lite”). Even many believers did not share those assumptions. In Scotland, as in many other places, many religious communities supported temporary restrictions on gathering.Footnote 69 Again, Lord Braid's conclusion was certainly plausible. But a judge with different assumptions, applying the same proportionality analysis, could just as plausibly have reached the opposite conclusion—as some U.K. judges did, with respect to other COVID-19–related restrictions.Footnote 70
The U.S. Cases: General Applicability under Smith
The U.S. COVID-19 cases likewise have turned on judicial line drawing and balancing. This might come as a surprise, since, as a formal matter, U.S. law does not rely on the proportionality test. In practice, though, during the COVID-19 crisis, U.S. courts have acted very much like their foreign counterparts. Under the pressure of the pandemic, as Collings and Barclay observe, the legal “framework” has not mattered much.Footnote 71 The “priors” of individual judges—their normative commitments and intuitions about the comparative virtues and importance of religious exercise—have mattered more.Footnote 72 And those, quite evidently, have differed greatly.
More than thirty years ago, the Supreme Court announced a test that was supposed to preclude judicial balancing in religious freedom cases. Under Employment Division v. Smith, a neutral, generally applicable law that only incidentally burdens religious exercise is presumptively constitutional.Footnote 73 Such a law receives only minimal, “rational basis” review, which is virtually impossible to fail.Footnote 74 Only where a law is not neutral and generally applicable—that is, where the law substantially burdens religious conduct more than analogous nonreligious conduct—does “strict scrutiny” apply.Footnote 75 In those circumstances, the state must show that the law serves a compelling governmental interest and does so only as far as necessary.Footnote 76 The state must show that it could not equally achieve its interest in a way that burdens religious exercise to a lesser degree.Footnote 77
The Smith Court evidently believed that the neutral-and-generally-applicable test would limit occasions for judicial balancing and promote predictability.Footnote 78 During the COVID-19 crisis, the opposite has occurred. The neutrality requirement has not posed much problem.Footnote 79 With a couple of possible exceptions, U.S. authorities have not targeted religion during the pandemic, though some have acted with comparative “indifference,”Footnote 80 as in New York City, where Mayor de Blasio downplayed the importance of worship in comparison with political protests.Footnote 81 General applicability has proved troublesome, however.Footnote 82 The requirement has puzzled scholars for decades and the pandemic has intensified the tensions.Footnote 83 Whether public-health measures like COVID-19 restrictions are generally applicable is not an objective matter, but a question of judgment that turns on implicit balancing—an assessment of the “comparative risks and importance of certain activities.”Footnote 84 In the COVID-19 crisis, with so many unknowns and so much at stake, judges have found it impossible to reach consensus.
Consider the shifting decisions of the Supreme Court. Early in the pandemic, in South Bay United Pentecostal Church v. Newsom (South Bay I), by a vote of 5–4, the Court refused to enjoin a California measure limiting “attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.”Footnote 85 Like the Court's other COVID-19–related cases, South Bay I was part of the Court's “shadow docket”—an emergency application for injunctive relief—and the Court did not issue an opinion.Footnote 86 Nonetheless, it is clear that the general applicability requirement divided the justices.Footnote 87 For example, Chief Justice Roberts, who voted with the majority, noted that California had imposed similar or stricter restrictions on “comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods.”Footnote 88 Consequently, the California measure merited only minimal review, especially during a public health emergency that counseled deference to expert opinion.Footnote 89 By contrast, Justice Kavanaugh's dissent argued that the measure was not generally applicable, since “comparable secular businesses [were] not subject to” the cap, “including factories, offices, supermarkets, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.”Footnote 90 Two months later, in Calvary Chapel v. Sisolak,Footnote 91 the Court again divided 5–4 in refusing to enjoin a Nevada restriction on places of worship, with the dissenters again protesting that the restriction did not apply to comparable “activities that involve extended, indoor gatherings of large groups of people,” including casinos.Footnote 92
A few months after that, though, in Roman Catholic Diocese of Brooklyn v. Cuomo,Footnote 93 the Court, by a vote of 5–4, enjoined a New York measure that looked very much like the ones it had permitted in South Bay I and Calvary Chapel. The measure divided the state into color-coded zones. In “red” zones, where the danger of contagion was high, the state restricted attendance at places of worship to 10 persons; in “orange” zones, where the risk of contagion was somewhat less, to 25.Footnote 94 Once again, the Justices disagreed about general applicability. For the members of the majority, New York had imposed stricter limits on places of worship than comparable, nonreligious gatherings. For example, Justice Gorsuch noted that the state allowed people to gather for long periods in laundromats and hardware stores, among other places.Footnote 95 By contrast, the dissenters argued that the proper comparator for religious services was the set of activities involving “large groups of people gathering, speaking, and singing in close proximity indoors for extended periods”—theaters and concert halls, for example.Footnote 96 By that measure, New York had treated religious and nonreligious activities alike. Indeed, New York had treated religious activities better than it had their secular counterparts.Footnote 97
The debate continued in two subsequent cases. In South Bay Pentecostal Church v. Newsom (South Bay II), a divided Court enjoined California's ban on indoor worship services.Footnote 98 Justice Gorsuch argued in a concurrence that the prohibition was not generally applicable, since most retail stores continued to operate at 25 percent capacity.Footnote 99 By contrast, Justice Kagan's dissent argued that the proper comparator was the set of secular gatherings California had banned along with religious services—political meetings, for example—and criticized the majority for “displac[ing] the judgments of experts about how to respond to a raging pandemic.”Footnote 100 Finally, in Tandon v. Newsom, the Court enjoined, 5–4, California's ban on at-home religious gatherings of more than three households.Footnote 101 The majority maintained that California had treated “comparable secular activities” better than at-home religious gatherings, since it had allowed retail stores, movie theaters, and restaurants, among other locations, to admit more than three households at a time.Footnote 102 In dissent, Justice Kagan again disagreed, arguing that the “obvious comparator” was not retail operations, but at-home, nonreligious gatherings, which California had also limited to no more than three households.Footnote 103 Viewed in that light, the restriction applied generally to religious and secular activities.
The Court has thus found it impossible to stick to a consistent position regarding the general applicability requirement and COVID-19–related restrictions on places of worship. This is not surprising. Whatever the Smith Court hoped, general applicability has always depended on judicial line drawing, and “in a pandemic, the line-drawing problems are challenging.”Footnote 104 Notwithstanding scoffing by some on both sides, finding the right comparator for religious services in these cases was “not straightforward.”Footnote 105 In terms of risk of contagion, places of worship are not entirely like factories, restaurants, shopping malls, and casinos, but not entirely unlike them, either.Footnote 106 Whether worship services were “close enough” to activities the state had permitted was a question without a categorical answer. Deference to public health authorities could not resolve things, because it, too, depended on judicial line drawing.Footnote 107 All agreed the Court should defer to the experts to some extent. But how far?
It seems apparent that the justices drew the lines in these cases, based not so much on the similarity or dissimilarity between places of worship and other locations, but on whether the authorities had fairly excluded worship services from the set of activities they had permitted.Footnote 108 This necessarily entailed implicit balancing and “value judgments” about the importance of religious exercise, compared to things like grocery shopping and dining out, and the need to accommodate some religious believers.Footnote 109 These matters greatly divide conservative and progressive Americans, including conservative and progressive justices. Notably, the Court switched its position, from acquiescing in the restrictions in South Bay I and Calvary Chapel to forbidding them in Roman Catholic Diocese, South Bay II, and Tandon, after Justice Barrett, a conservative, replaced Justice Ginsburg, a progressive, thus altering the philosophical balance on the Court. I have more to say about this below.
Strict Scrutiny and Proportionality: Intuition and Balancing
The decisions in Roman Catholic Diocese, South Bay II, and Tandon made clear that the Court would subject COVID-19–related restrictions on communal worship to strict scrutiny. As a formal matter, strict scrutiny differs from proportionality analysis, for example, with respect to the “framing” of the right in question.Footnote 110 Strict scrutiny applies only to “fundamental” rights, while the proportionality test applies to rights more generally.Footnote 111 Moreover, strict scrutiny requires that the state have a “compelling” interest to justify its measure, not merely a “legitimate” one.Footnote 112 Finally, strict scrutiny does not formally call for judicial balancing.Footnote 113 The proportionality test, by contrast, expressly requires a court to weigh the relative costs and benefits of a measure (though “many” courts “frequently” skip this step in practice and may “smuggl[e]” balancing into the necessity requirement).Footnote 114
Nonetheless, one should not overstate the dissimilarities, and, in the COVID-19 crisis, at least, the two tests have worked out essentially the same.Footnote 115 The framing of the right has not made a difference in this context, since all concede the fundamental character of the right to worship. Similarly, no one doubts the state has a compelling interest in reducing the spread of COVID-19. Proportionality's necessity requirement outside the United States has performed a similar function to strict scrutiny's least-restrictive means test inside the United States.Footnote 116 In Philip, recall, Lord Braid described the necessity requirement in words a U.S. judge could have used to describe U.S. law. The question, Lord Braid wrote, was “whether a less intrusive measure could have been used without unacceptably compromising the achievement of the [state's] objective.”Footnote 117
Finally, whatever the formalities, in practice strict scrutiny often operates as a balancing test, requiring courts to make “all-things-considered” judgments about the relative weight of competing social goods, especially where a measure would “reduce risks of harm rather than eliminate them.”Footnote 118 That is what has happened in the COVID-19 context. Judges applying strict scrutiny have weighed whether a limitation on collective worship is “justifiable in light of the benefits likely to be achieved and the available alternatives.”Footnote 119 And they have done so based on “priors”—intuitions about things like the importance of collective worship, the need to “follow the science,” and the competence and goodwill of regulatory authorities.
Consider South Bay II.Footnote 120 The Court did not address strict scrutiny in its per curiam opinion, but, writing separately, Justice Gorsuch did, and a majority agreed with the heart of his analysis.Footnote 121 Gorsuch characterized strict scrutiny as a balancing test opposing the interests of religious believers to those of the public more generally. In such cases, he wrote, “courts nearly always face an individual's claim of constitutional right pitted against the government's claim of special expertise in a matter of high importance involving public health and safety.”Footnote 122 Here, California had a compelling interest in stopping the spread of COVID-19, but religious believers had a right to worship, and California had not sufficiently explained why it could not honor that right and still achieve its stated objectives.Footnote 123 For example, the state could have required places of worship to adopt the social distancing measures it had mandated for “many secular settings.”Footnote 124 It could have restricted occupancy, imposed reasonable time limits, or given places of worship the option of offering regular COVID-19 testing.Footnote 125 Any of these alternatives would have constrained believers' free exercise rights less than a total ban and still allowed California to reach its stated public health goals.
Justice Gorsuch appeared unperturbed by the fact that public health experts evidently disagreed that narrower measures would equally reduce the spread of COVID-19. “Of course we are not scientists,” he conceded, but judges should not defer to experts where constitutional rights were at stake.Footnote 126 He did not put it this way, exactly, but he obviously believed that balancing the interests of some religious believers and the public at large was a matter for the courts, not epidemiologists. Besides, public health experts had burned their credibility by “moving the goalposts on pandemic-related sacrifices for months, adopting new benchmarks that always seem to put restoration of liberty just around the corner.”Footnote 127
Like Lord Braid in Philip, in South Bay II, Justice Gorsuch balanced competing social goods and concluded that the costs of the state's measure, in terms of the restriction on believers' rights, outweighed the benefits, in terms of reducing the spread of disease. And, like Lord Braid, he did so based on intuitions—“naked judicial instinct,” Justice Kagan complained in dissent—that many would not share.Footnote 128 To give just one example, Justice Gorsuch's opinion turned on the assumption that temporarily banning indoor gathering substantially burdened believers. As in Scotland, however, many congregations in California easily adjusted to restrictions on in-person worship.Footnote 129 “Given California's mild climate,” Justice Kagan protested, forbidding indoor gathering did “not amount to a ban” on worship.Footnote 130 Believers could continue to worship outdoors; in fact, “[w]orship services” had “taken place outdoors throughout this winter.”Footnote 131
Justice Kagan also expressed dismay at the Court's dismissal of experts' conclusions on the measures necessary to reduce contagion. “[I]t is alarming,” she wrote, “that the Court second-guesses the judgment of expert officials,” since, “[t]o state the obvious, judges do not know what scientists and public health experts do.”Footnote 132 The Court had substituted “judicial edict” for “science-based policy.”Footnote 133 But whether, and how far, to defer to experts is itself a judgment call that depends on one's confidence in the experts' consistency and good faith, as well as one's assessment of the gravity of the risk and the costs deference imposes on important rights like free exercise.Footnote 134 On those matters, Justices Gorsuch and Kagan evidently disagreed. Both made plausible arguments. The point is that judges applying strict scrutiny in the same case easily can reach different conclusions if they start with different priors about fundamental matters.
In short, in the COVID-19 crisis, doctrinal differences have had relatively little significance. Under either the proportionality test outside the United States, or Employment Division v. Smith inside the United States, courts have decided cases based mostly on intuition and balancing. Undoubtedly, the pressure of the crisis explains much. In a public-health emergency, where speed is essential and hard information difficult to obtain, intuitive assessments may be the best one can do. But crises often clarify, and the COVID-19 pandemic has done so. Notwithstanding formal differences, in their case-by-case character and reliance on individual judgment, proportionality analysis and strict scrutiny have shown themselves in this episode to be more alike than different.Footnote 135 In some circumstances, where debate exists about the importance of the right in question or the strength of the state's interest, proportionality and strict scrutiny may cash out differently. But the COVID-19 crisis has revealed that the two tests share significant affinities.
Judicial Partisanship and Cultural Divisions in the United States
What has the pandemic revealed about U.S. law, specifically? Here, the story is not one of affinity but division. The Court's inconsistent decisions in the COVID-19–related cases reflect a cultural and partisan divide respecting religion and religious freedom. True, that is not the only fissure that exists in the United States today. The COVID-19 crisis has revealed other disagreements as well, for example, about the competence of government, the credibility of scientific experts, and other matters. And the pandemic did not create our religious divide, which has been growing for decades, and which has influenced the Court's response to other legal questions as well.Footnote 136 But the current public health crisis, affecting hundreds of millions of Americans simultaneously, has intensified our religious divide and made it impossible to ignore.Footnote 137 In the crisis, the lack of a “shared baseline” with respect to religious freedom has become quite manifest.Footnote 138
Where cultural consensus exists on an issue, balancing tests like strict scrutiny work reasonably predictably. Results differ in specific cases, but judges tend to weigh rights and interests in foreseeable ways that widely conform to social expectations.Footnote 139 Where consensus does not exist, however, balancing tests become more problematic.Footnote 140 In that context, outcomes turn on the personal worldviews of the judges who happen to hear a case—and given the lack of consensus, those worldviews may vary considerably. In the absence of shared cultural understanding, judges inevitably rely on their “own moral backgrounds” and commitments and weigh interests differently.Footnote 141 As a result, judicial balancing becomes “unpredictable” and legal doctrine “incoherent.”Footnote 142 One would expect this to be the case especially in an emergency, where access to reliable information is uncertain and the potential consequences severe, and where the sense of crisis swamps the effect of professional training that might otherwise encourage greater judicial detachment.Footnote 143
The shifting results in the Court's COVID-19–related cases reflect this dynamic. The historical U.S. consensus on the beneficence of religion—the traditional idea that “religion is valuable and . . . legal rules should be crafted for the purpose of protecting that value”Footnote 144—no longer exists. Americans have not become uniformly irreligious; rather, they have become polarized, and the polarization expresses itself, more and more, in partisan terms.Footnote 145 Increasingly, Republicans are the party of traditional believers, especially conservative Christians, while Democrats are the party of Nones and secular Americans.Footnote 146 Some exceptions exist. Black Christians strongly identify as Democrats, for example, as do the relatively small number of Americans who consider themselves part of the “Religious Left.”Footnote 147 Overall, though, the religious/secular divide between the two parties appears consistently in social surveys.
This partisan divide affects judicial appointments—and, through them, judicial decisions.Footnote 148 As Devins and Baum show in a recent study, “presidents increasingly choose [judicial] nominees who . . . adhere strongly to their parties' dominant ideological tendency,”Footnote 149 so that “credible [judicial] candidates from either party are likely to reflect the ideological gap that separates” Democrats from Republicans.Footnote 150 In the free exercise context, one would expect Democratic presidents to nominate judges who sympathize with the secularism that increasingly defines that party and Republican presidents to nominate judges who sympathize with the GOP's pro-religious orientation. Presidents have a handily differentiated set of candidates from which to choose. Legal elites today are as divided as the rest of the country, if not more, and competing progressive and conservative networks exist to help identify the right people to fill vacancies on the bench.Footnote 151 Consequently, presidents of both parties can readily select judicial candidates likely to sympathize with their parties' core commitments.
The lack of a cultural baseline thus has made judicial decisions on religious freedom more subjective and dependent on judges' partisan identities. Americans today “lack a common measure for weighing the importance of practicing one's religion against other important concerns,”Footnote 152 and, as a result, a test like strict scrutiny, which depends so heavily on judges' priors, leads inevitably to politically polarized results. Exactly that pattern has appeared in the U.S. COVID-19–related legal cases.Footnote 153 A study by Zalman Rothschild of more than 100 such cases in the federal courts reveals that not a single Democratic-appointed judge has ruled in favor of religious plaintiffs in any of them.Footnote 154 By contrast, “66% of Republican-appointed judges” have done so, and “82% of Trump-appointed judges.”Footnote 155 This partisan breakdown has held true at the Supreme Court as well as in the lower courts.Footnote 156 Democratic-appointed justices consistently have ruled against religious plaintiffs in COVID-19–related cases. Republican-appointed justices, with one exception, consistently have ruled for religious plaintiffs, and, as we have seen, the appointment of Justice Barrett to replace the late Justice Ginsburg during the pandemic decisively shifted the Court in their favor.Footnote 157
Again, the COVID-19 crisis did not create this situation. The polarization I describe has been growing for decades—an aspect of our ongoing culture wars.Footnote 158 The crisis has highlighted those divisions, however. How could it be otherwise? The pandemic has presented difficult questions in a context of great uncertainty and consequence and has required judges to make quick decisions without the benefit of regular briefing or argument. And it has done so in a context of deep social and political dissensus on the value and scope of religious freedom. In this environment, it is not surprising that judges would fall back on their priors and decide cases differently from one another. Indeed, a consensual resolution in this setting hardly seems possible.Footnote 159 It is not a wonder that judicial balancing in the COVID-19–related cases has been so partisan and controversial. The wonder would be if that were not the case.
Conclusion
In an essay in April 2021, Javier Martínez-Torrón wrote about what legal scholars can learn from the COVID-19 pandemic. The most important lessons, he suggested, do not relate to “concrete” particulars—the details of specific restrictions and the holdings of specific cases.Footnote 160 Like all pandemics, this one will eventually end, and paying too much attention to the finer points of courts' responses to it would be a mistake. Rather, scholars should concentrate on what the COVID-19–related legal cases reveal about the law more generally, about “already familiar” questions that “manifest with special clarity in moments of crisis.”Footnote 161 Most of all, scholars should focus “on what this pandemic teaches us about ourselves, that is, about our societies, our conception of political organization, [and] our understanding . . . of fundamental rights, including freedom of religion or belief.”Footnote 162
In this essay, I have drawn two such lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, the crisis suggests significant affinities between the proportionality test courts outside the United States favor and the U.S. approach under Employment Division v. Smith. Doctrinal differences have not had much practical significance, at least during the crisis. Both in the United States and abroad, courts ultimately have struck a balance between the competing interests at stake, those of some religious believers and those of the public more generally, and have relied on intuition and normative commitments about the comparative importance of religious exercise. With respect to the United States, specifically, the COVID-19–related legal cases reveal a cultural and political divide that makes consensual resolution of conflicts over religious freedom increasingly problematic, and perhaps impossible, even during a once-in-a-century pandemic.
Acknowledgments
I thank Silas Allard, Justin Collings, Marc DeGirolami, Adelaide Madera, Javier Martínez-Torrón, John McGinnis, Andrea Pin, Zalman Rothschild, and my colleagues at a faculty workshop at St. John's Law School for helpful comments on earlier drafts. I thank Jordan Pamlanye, St. John's Law School Class of ’22, for research assistance.
