The Implicit Bargain behind the Supreme Court’s Ruling on Religious Liberty during the Pandemic

December 8, 2020 | Michael A. Helfand
About the author: Michael A. Helfand is an associate professor at Pepperdine University School of Law and associate director of Pepperdine’s Diane and Guilford Glazer Institute for Jewish Studies.

Just before Thanksgiving, the U.S. Supreme Court decided in favor of Agudath Israel—the nation’s leading ḥaredi organization—and the Catholic diocese of Brooklyn, which claimed that New York State’s restrictions on houses of worship located in neighborhoods deemed coronavirus “hotspots” constituted an undue burden on the free exercise of religion. Examining the decision, Michael A. Helfand writes:

The court was careful to strike down only the most severe elements of New York’s restrictions, and its logic demanded this sort of distinction. It was because New York could still impose capacity restrictions on houses of worship—tying attendance limitations to the size of the church or synagogue—that the state’s insistence on also imposing attendance maximums was unconstitutional. Put differently, New York’s limits violated the First Amendment, in part, because there were less restrictive alternatives that could also effectively meet the demands of public health.

But such alternatives, such as capacity restrictions based on the size of the house of worship, are only effective if the relevant faith communities adhere to them. In this way, the court’s decision reflects a bargain of sorts. If religious communities remain committed to the demands of public health—if they adhere to the remaining capacity and other attendant COVID guidelines—then courts have the leeway to strike down the most onerous of restrictions on religious worship. But if religious communities choose to pocket this win and flout the remaining rules, it will raise serious questions with the court’s analysis.

Ultimately, the Supreme Court told New York that extreme regulation of religion was unconstitutional—and it told religious communities that it will rely on less restrictive regulations if compliance ensures the effectiveness of those regulations. Let’s hope that both sides can live up to their ends of the bargain.

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