Hands-Off Religion in the Early Months of COVID-19

Abstract

For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, judicial rulings and rhetoric in these cases illustrate ways in which the hand-off approach remains, at once, both vibrant and vulnerable to critique.

This paper was presented as part of the Blog Webinar: Law, Religion, and Coronavirus in the United States: A Six-Month Assessment, Co-organized by: International Center for Law and Religion Studies, Brigham Young University; Law School Center for the Study of Law and Religion, Emory University Law School; Notre Dame Program on Church, State & Society, Notre Dame Law School Center for Law and Religion; St. Johns University School of Law; and Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law.

Keywords: COVID, hands-off approach, Supreme Court, religion, religious practice, religious doctrine