Religious Liberty and COVID Precautions: A Legal Perspective

By Michael J. DeBoer

As American citizens have grappled with the COVID-19-related mandates of civil government, they have deployed legal arguments of varying degrees of merit. Some citizens have deployed religious liberty arguments in resisting mask and vaccination mandates. Not all religious liberty claims are sound, however, and great care must be taken in deploying them. Because of the risk that wrongfully deployed religious liberty claims may ultimately prove counterproductive, we should take careful stock of the religious liberty arguments deployed during this pandemic.

Religious Liberty Arguments Against Public Health Activities

Over the past 18 months, religious liberty arguments have been deployed effectively against a number of the government restrictions imposed on churches, and courts have determined that some of the challenged public health activities violated constitutional or statutory rights under federal and state law. (See generally Michael J. DeBoer & Jeffrey B. Hammond, Conflicts Between Public Health Measures and Religious Freedom in a Period of Pandemic.) The most effective religious liberty argument has been the claim that some government restrictions subjected churches to harsher treatment than secular entities such as restaurants, bars, breweries, libraries, gyms, public pools, nail salons, casinos, retail outlets, grocery stores, and cannabis stores. Among the challenged restrictions were bans on drive-in services and strict occupancy limits.

Over a 10-month period, the Supreme Court of the United States issued rulings in a series of cases presenting religious liberty challenges to government restrictions.[1] In South Bay United Pentecostal Church v. Newsom, the Court denied a church’s application for injunctive relief as to a governor’s numerical restrictions on gatherings at places of worship, even though the governor’s order granted more favorable treatment to comparable secular businesses. In Calvary Chapel Dayton Valley v. Sisolak, the Court again denied a church’s application for injunctive relief as to a governor’s directive that severely limited attendance at religious services but favorably treated casinos and certain other favored facilities. In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Court granted applications for injunctive relief filed by a Roman Catholic Diocese and Jewish synagogues as to a governor’s order imposing occupancy limits that treated houses of worship more harshly than comparable secular facilities. In Ritesh Tandon v. Newsom, the Court granted an application for injunctive relief as to a governor’s less favorable treatment of at-home religious exercise than comparable secular activities.

The religious liberty arguments presented in these cases were carefully developed and presented, and they led to rulings that will help to safeguard religious freedom for years to come. In fact, the Court itself in Ritesh Tandon observed that this series of decisions clearly established the following points:

1. Government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.
2. Whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.
3. The government has the burden to establish that the challenged law satisfies strict scrutiny.
4. Even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case.

The legal claims presented in these cases involved churches and other religious groups (corporate bodies) who urged that government authorities unequally treated them and their religious activities compared to secular entities and their activities. These cases, thus, focused on unequal treatment, not religious exemption.

Christians should resist the urge to make exaggerated claims of religious exemption and reserve religious exemption claims for genuine conflicts with sincere religious beliefs and practices.

Religious Liberty Arguments Against Mask and Vaccination Mandates

The religious liberty arguments deployed against mask and vaccination mandates are of a different nature than the religious liberty arguments discussed above, which were premised on unequal treatment. The religious liberty arguments against these mandates do not seek equal treatment; rather, they seek different treatment based upon a claimed religious exemption. Although religious freedom protections under the federal and state constitutions extend to both individuals and corporate entities, an individual’s claim to a religious exemption faces serious headwind in the face of state laws that are adopted pursuant to state police powers and in the interest of the public’s health. Consequently, such arguments are not likely to be successful.

Nevertheless, those making religious liberty arguments against mask and vaccination mandates should not be disparaged for making such arguments. Over the past 18 months (indeed, over the last century), public health authorities have engaged in an array of activities that have violated constitutional rights and eroded public trust, and American citizens are understandably suspicious of public health authorities and their activities. (See Michael J. DeBoer, Public Health, Public Trust, and Faith Communities) Additionally, those making these religious liberty arguments are likely acting based upon a genuinely American impulse to resist governmental overreach and a legitimate concern that governmental authority must be constrained when it undertakes to direct individuals regarding what they must wear or put in their bodies and parents regarding how they must care for their children. Furthermore, there is precedent in American law for religious exemptions under compulsory vaccination regimes. Indeed, most states grant religious and/or philosophical exemptions from their school immunization requirements to accommodate these sorts of concerns. Although these exemptions may be more capacious than the federal and state constitutions would require, they have helped to avoid intrusions that many citizens find objectionable.[2]

There is a better approach. Christians should resist the urge to make exaggerated claims of religious exemption and reserve religious exemption claims for genuine conflicts with sincere religious beliefs and practices. Additionally, they should focus on the legal limits on government authority and challenge government exercises of power that lack lawful support, extend beyond lawful bounds, treat citizens, institutions, and businesses unequally, or lack the tailoring that is warranted for government mandates. Focusing on the limits of government authority and the wisdom and justice of specific government activities will bring forward other arguments that could lead to more carefully tailored laws that achieve a better balance between public health goals and constitutional rights. Some of these other arguments (such as arguments that governors and agencies exceeded lawful authority or violated separation of powers doctrines) have been successfully deployed against government restrictions and mandates and have led to revised directives that accommodate a wider range of interests and concerns.

Conclusion

In these days, discernment and longsuffering are required. They are necessary for people of faith who object to mandates and are inclined to lean on religious liberty and claim a religious exemption. As followers of Christ, we must be ever mindful of our duties to respect the governing authorities (Rom. 13:1-7), seek the welfare of our communities (Jer. 29:7), and honor others above ourselves (Rom. 12:10). And, resisting the urge to claim a religious exemption may, in the long run, be the better way to steward the legacy of religious liberty for the next generation.

[1] During this period, the Court also ruled in favor of churches in three other cases: High Plains Harvest Church v. Polis, South Bay United Pentecostal Church v. Newsom, and Gateway City Church v. Newsom.

[2] As herd immunity has declined and some outbreaks have occurred, some states have eliminated such exemptions in recent years.