Thread by @CarolineMCorbin

Hi! I am a law and religion scholar.

Let me provide you w/ some background law on constitutional religious freedom challenges to help you make sense of the recent Supreme Court decision, as well as other decisions percolating in the courts.

#SCOTUS #SupremeCourt #covid #covid19

The controlling rule is that neutral and generally applicable laws do not violate the Free Exercise Clause (that clause in the First Amendment that protects religious liberty).

Neutral and generally applicable laws are CONSTITUTIONAL

#religion #covid #SCOTUS #SupremeCourt

[Actually, I should have said normally that is the rule. Some suggest the rule should be relaxed due to the emergency nature of the pandemic as a Supreme Court decision made during a smallpox epidemic seemed to suggest. But let's stick with the normal rules]

A law is neutral if it does not target religion

A law is generally applicable if it its burdens apply to all relevant parties, not just religious ones

In other words, a neutral & generally applicable law is one that does NOT single out religion for unfavorable treatment

If, e.g., a state barred religious services on the grounds that large indoor gatherings were potential super-spreader events, but did not ban other large indoor gatherings (restaurants, bars, theatres, indoor sports arenas), that law would NOT be neutral & generally applicable

In fact, the NY orders struck down by Supreme Court were quite the opposite, & treated large indoor religious gatherings (capped at 10 in red zone or 25 in orange) more favorably than large indoor secular gatherings (completely banned in red or capped at 10 in orange)

The Supreme Court, however, did not compare indoor religious services to other large indoor gatherings

Instead, it compared them to shopping at essential businesses, which was not as regulated, concluded that religion had been targeted

i.e. NOT neutral & generally applicable

This is a wrong conclusion for at least two reasons, but first let me finish explaining the law.

A law that is NOT neutral and generally applicable is not automatically unconstitutional.

It might still be constitutional if it passes what is called strict scrutiny.

A law passes strict scrutiny if the govt can show two things about its law.

First, that the law is trying to accomplish a really compelling govt interest.

Second, that there is not another for the govt to accomplish that interest that infringes less on the right.

In the recent Supreme Court decision, no one disagreed that the motive behind the Covid restrictions--to save lives--was compelling.

The problem, according to the Court, was that it was not necessary to limit religious services so drastically in order to accomplish that goal.

Earlier I said I thought the Supreme Court was wrong for two reasons.

First, it should not be comparing religious services to shopping.

The govt treated the religious services more strictly bc, per science, they pose much more of a risk.

See: buff.ly/3il4gro

Second, even if shopping were comparable (IT'S NOT!), that does not automatically mean that religion was targeted for disfavor, given that other secular gatherings were treated more strictly than the religious gatherings.

#SCOTUS #Covid #Covid19