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What COVID-19 revealed about America’s approach to religious freedom

Cases involving COVID-19 gathering restrictions and religious groups showed why rulings on religious freedom are often inconsistent

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Photo illustration by Michelle Budge

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The COVID-19 pandemic has created all sorts of religious freedom conflict, as people of faith fight gathering restrictions, mask requirements and, more recently, vaccine mandates.

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.

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. 

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.

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.”

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.”

“The concept of generally applicability was always kind of a problem, but this crisis has magnified it,” he told me.

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. 

“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. 

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. 

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. 

“Maybe in a noncrisis setting, we can be more levelheaded about this,” he said.


Fresh off the press


Term of the week: Cryptocurrency

Cryptocurrency is a catch-all term for digital currencies such as Bitcoin. Unlike other common currencies, including the American dollar, cryptos aren’t printed or controlled by government authorities. Instead, they’re digitally created and then secured using advanced encryption techniques.

Cryptocurrency has been around for more than a decade, but interest and investment in it has only recently hit the mainstream. It’s now common enough to hold bitcoin, in particular, that some churches have started accepting it in donation drives, even though it can create a financial headache, as Religion Unplugged recently reported.

“There are now more than three dozen major cryptocurrencies in circulation, and accepting such gifts requires surviving a gauntlet of legal, tax, banking and compliance issues that challenge nonprofits,” the article noted.

However, refusing to accept crypto gifts can lead to missed opportunities. One Christian ministry was recently gifted $10 million in bitcoin from a “devout older man who ... started investing in cryptocurrency a decade ago,” Religion Unplugged reported.


What I’m reading ...

Religion looms large in the founding myths of both the United States and Israel, but modern leaders of each of these countries relate to faith in very different ways, according to Michael Oren, who formerly served as Israel’s ambassador to the U.S. In America, politicians are viewed with suspicion if they don’t talk about their faith. In Israel, the opposite is true. “The God of America speaks to presidents like George W. Bush, but the God of Israel has not spoken to Jewish leaders since biblical times,” wrote Oren for Tablet.

Earlier this year, Benet Academy, a Catholic school in suburban Chicago, rescinded a job offer to a lacrosse coach when it became clear she was gay. But after pushback from students, parents and other community members, school leaders apologized and reversed their decision, welcoming the coach to Benet’s staff. Heidi Schlumpf, editor of National Catholic Reporter, recently wrote about why she was shocked by this turn of events and also intrigued to see what the future will hold.

Texans will soon vote on whether to create a constitutional protection for churches that want to stay open during pandemics. I was thrilled to see that Courthouse News Service cited my research on policy proposals related to church closures in their report on the Texas vote.

Comedian Kumail Nanjiani recently got really, really buff. In a new profile of him, Vulture magazine explores the emotional side effects of this physical transformation. I really loved the piece, including its discussion of Nanjiani’s feelings on being raised Muslim.


Odds and ends

The Deseret News released its annual American Family Survey project last week. Please check out all the great stories, including a look at young people’s views on marriage and reflections on what families fear.