Free Exercise and Shutdown Orders in a Pandemic
Throughout the Covid-19 pandemic, state and local governments around the country imposed restrictions that limited the ability of faith communities to meet for religious worship. In response, the Supreme Court heard several emergency requests for preliminary injunctions that examined the limits of the Free Exercise clause in times of public health emergency. As the nature of the pandemic evolved and the composition of the Court shifted so too did the Court’s rulings.
While the cases you will read for today relied on Smith, their understanding of neutrality and general applicability shifted to notions of “comparability.” For these cases, consider how various secular exceptions recognized under the shutdown orders afftected the free exercise analysis. How does this analysis differ from past cases that we have read? In what ways do the exigencies of a public health crisis change the legal calculus regarding compelling interest?
These COVID cases are somewhat fact-specific. The lack of exact comparisons with the temporal and public health circumstances makes it difficult to generalize the holdings of the cases beyond their immediate circumstances. What, if anything, might we learn from these cases for the future of free exercise law?
South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (May 29, 2020)
Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 1043 (July 24, 2020)
Roman Catholic Diocese of Brooklyn v. Cuomo, 140 S. Ct. 63 (November 25, 2020)
Tandon v. Newsom, 140 S. Ct. 1294 (April 9, 2021)