“The concept of generally applicability was always kind of a problem, but this crisis has magnified it,” he told me. During the pandemic, these battles became more common and more heated. There’s no easy, obvious answer to the question of whether a gathering restriction treats churches the same as comparable secular buildings since reasonable judges can disagree on what secular buildings should be seen as comparable. As Movsesian wrote in his forthcoming article on law, religion and COVID-19 for the Journal of Law and Religion, houses of worship are not entirely like shopping malls, restaurants or casinos, but they’re “not entirely unlike them either.” When there are no easy, obvious answers, judicial bias can creep in. That’s always problematic, but it’s especially so at a time when liberal and conservative judges often have very different views on the value of faith and what should win out when religious freedom is in conflict with other rights.
The 1990 ruling “says that if a law is neutral and generally applicable then it is basically constitutional, even if it has an incidental effect on religion,” Movsesian said. That approach, which originated in a 1990 Supreme Court case, is supposed to reduce the role of judicial balancing within the religious freedom sphere. Under this precedent, judges should only rarely have to weigh the relative merits of the government’s interest in upholding a controversial policy against a faith group’s interest in seeing that policy overturned. Most of the time, they need only to confirm that the law in question treats religious activities the same as similar secular activities.
This guidance is less helpful in practice than it seems in theory. In the past three decades, legal experts have often clashed over what it means for a law to be “generally applicable.” Your view on these legal battles likely depends on your professional, spiritual and political interests. Mark L. Movsesian, co-director of the Center for Law and Religion at St. John’s University in New York, saw them as opportunities to study the limits of the United States’ approach to religious liberty protections.
“Maybe in a noncrisis setting, we can be more levelheaded about this,” he said. Fresh off the press Where Movsesian finds hope is from the fact that religious freedom cases involving pandemic-related public health rules will (hopefully) soon be a thing of the past. Under less chaotic circumstances, legal experts, policymakers and others will be in a better position to find solutions to the problems currently facing the religious freedom sphere.
But finding a common baseline is much easier said than done. Right now, the gulf between the two parties — and, by extension, the judges they appoint — is widening, rather than shrinking. And although a nationwide religious revival is unlikely, so too is the total disappearance of American interest in protecting and promoting personal faith. “As long as we don’t have a common baseline for how important religion is compared to other things, we’re going to have inconsistent opinions” from the legal system, Movsesian said. And with inconsistent opinions comes political and social strife.
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