2021 Zenodo  
During the coronavirus pandemic, religious groups challenging government restrictions on in-person worship services in the United States have typically argued that these restrictions discriminate against religion in violation of the Free Exercise Clause of the First Amendment. Demands for equal treatment have intuitive appeal, and they also fit with the Supreme Court's current religion clause jurisprudence. However, there are drawbacks to approaches that focus on equal treatment. It can be
more » ... cult to identify the appropriate secular benchmarks for determining whether discrimination has taken place, and what religious congregations have really wanted is not necessarily equal treatment but maximization of their ability to gather together safely in person. Indeed, although the Supreme Court has granted injunctive relief on a number of occasions after finding that the government's rules impermissibly favor secular activities over religious practice, the Court's real concern has been the impingement on religious worship. Many of the examples of discrimination given by those in the majority have seemed strained, and the justices have appeared most interested in subjecting restrictions on worship to the heightened scrutiny that follows from a finding of discrimination. The Court's shift in focus from discriminatory treatment to close scrutiny of worship restrictions is the right one, but those in the majority have neither acknowledged this shift nor signaled a new framework or approach that would explain or guide it. This essay argues that the appropriate framework for analyzing restrictions on religious worship is the doctrine of church autonomy that has been emerging in the Court's recent religion clause jurisprudence. Viewing conflicts over COVID-19 restrictions through this lens can better clarify what is at stake when clashes occur as well as better inform the scope and limits of institutional freedom in this context. KEYWORDS: COVID-19, religious discrimination, equal treatment, church autonomy, free exercise, r [...]
doi:10.5281/zenodo.5701974 fatcat:eamjxgyaljbxtlvjcxxvflugu4