More Than a Mask: Stay-At-Home Orders and Religious Freedom

26 Pages Posted: 9 Jul 2020

See all articles by Dorit Rubinstein Reiss

Dorit Rubinstein Reiss

University of California Hastings College of the Law

Madeline Thomas

University of California, Hastings College of the Law

Date Written: July 7, 2020

Abstract

COVID-19 has changed our legal universe. Many states are responding by issuing stay-at-home orders, and as cases rise, may have to prohibit gatherings again. One issue states and courts have to grapple with is what is the relationship between stay-at-home orders and religion. Stay-at-home orders that require closing down churches may be challenged as violating the First Amendment’s guarantee of religious freedom. Under our current jurisprudence, these cases may be handled under a highly deferential standard or under strict scrutiny – depending on the specific order in question, as well as on whether the state has a RFRA. We recommend, in either case, that orders be carefully crafted to impose the minimum prohibitions needed to prevent outbreaks, according to the situation, and that crafters address, generally, the specific things that increase the risk of transmission – for example, prohibit gatherings indoors that are more than in passing, rather than specific activities. We also recommend that crafters avoid drawing value-laden lines (e.g. deciding whether gun stores are more important than churches). Finally, we suggest that courts should rule in ways that support drawing reasonable lines and providing essential information. A separate question is whether stay-at-home orders that exempt churches violate the Establishment Clause’s separation of church and state; we explain why the answer is, probably, no.

Keywords: Religion, COVID-19, First Amendment, Constitutional Law

JEL Classification: I18, K30

Suggested Citation

Reiss, Dorit Rubinstein and Thomas, Madeline, More Than a Mask: Stay-At-Home Orders and Religious Freedom (July 7, 2020). San Diego Law Review, Vol. 57, No. 4, 2020, Available at SSRN: https://ssrn.com/abstract=3645433

Dorit Rubinstein Reiss (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-5654844 (Phone)
415-5654865 (Fax)

Madeline Thomas

University of California, Hastings College of the Law ( email )

200 McAllister St
San Francisco, CA 94102
United States
7073381853 (Phone)

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