On May 29, the Supreme Court rejected a California church’s request to block a state law limiting the number of people allowed to attend religious services at any given time. But the opinion itself leaves open the door for other challenges on religious-liberty grounds to public-health restrictions affecting public worship. Thomas Berg and Shawna Kosel address the issues at play:
If the government restricts worship but allows activities presenting similar risks, that can amount to a religious-freedom violation in two ways. One is under the Supreme Court’s First Amendment doctrine, which says that government can restrict religious practice if, and only if, the law in question is “religion-neutral and generally applicable.” According to several court decisions, a law restricting religion fails the general-applicability standard, even if it doesn’t target religion alone, if it allows other activities that cause similar harms.
The second is that under both federal and state rules, the government can restrict religious conduct if it can prove the restriction is necessary to serving a “compelling” governmental interest (like public health). It’s difficult to prove that restricting religion is a compelling necessity if activities causing similar harms are allowed. . . . As Supreme Court Justice Robert Jackson once wrote, “[N]othing opens the door to arbitrary action so effectively as to allow [government] officials to pick and choose only a few to whom they will apply legislation, and thus to escape the political retribution that might be visited upon them if larger numbers were affected.”
Many [state and local regulations have] allowed “essential services” to continue (groceries, food takeout, banks, and healthcare), but omitted in-person worship from that category, instead classifying [religious services alongside] “mass gatherings” like theatre and spectator sports. The exclusion from “essential” activities is probably the element that most angered those who oppose the orders. Members of [Kosel’s] congregation were stung that during the weeks when in-person worship was barred, the flashing LED lights of the local liquor store read, “We are essential!”
The rationale for these classifications cannot be that worship services are “inessential.” The First Amendment, by explicitly protecting religious exercise, treats it as an important activity. Classifying worship with sports and entertainment should not reinforce the attitude that religion is one “hobby” among others, rather than part of the lifeblood of society.
Read more on Christianity Today: https://www.christianitytoday.com/ct/2020/june-web-only/religious-freedom-covid-church-restrict-reopening-lawsuits.html