In recent months religious believers in parts of the United States as well as western Europe have come to sense that public health regulations are being uniquely turned against them. In a Thanksgiving gift to religious believers in New York, late Wednesday evening the Supreme Court granted the request of the Diocese of Brooklyn (alongside a group representing Haredi Orthodox Jews) for injunctive relief from an executive order restricting occupancy at religious services to ten persons in COVID-19 “red zones” and twenty-five persons in “orange zones.” Catholics in France have not been so lucky, and there a national restriction limits religious services to thirty persons, even in France’s greatest cathedral churches. In both cases, governments claim to be fully committed to upholding liberty of religion as well as public interest writ large yet reach divergent conclusions.
This divergence points to a difficulty in one of the key concepts underlying this year’s restrictions on public activities—namely that of public order, which this year has taken the form of regulations made in the name of public health. In normal times, public order is a background condition assumed for the sake of going about the rest of one’s business. When the local fire department inspects a church building and concludes that four hundred people can safely fit within it, no one, least of all church authorities, bats an eye. In the church–state boundary dispute currently before us, however, religious congregations have faced severe adverse restrictions on their activities. And while Americans may be grateful that religious liberty jurisprudence worked in our favor this time, the same considerations—balancing public health and the demands of religious liberty—led to an adverse outcome in France, and one against which there is no appeal.
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