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Mississippi College Law Review

Publication Date

Summer 2023

Abstract

SARS-CoV-2, colloquially termed “COVID-19,” dramatically altered the world in which we live. But no one would have guessed the virus would spark a flurry of litigation under the U.S. Constitution’s Free Exercise Clause. Shortly after the virus began to spread, former President Donald Trump advised a twoweek plan with hopes to “flatten the curve” of COVID-19’s impact. The plan encouraged individuals to avoid gatherings with ten or more people, work and attend school from home, eat at home rather than in restaurants, and avoid discretionary travel and shopping, to name a few. But the two-week plan did not effectively thwart the spread of the virus, and more action was needed. Several states shut down their economies, schools, and churches to deter the spread. One of the most universally adopted approaches by the states included the implementation of universal mask mandates upon its citizens.

Indeed, the mitigation efforts, including mask mandates, that began under a two-week plan to prevent further spread of the virus lasted for over two years in some areas. Unsurprisingly, many citizens grew concerned over limitations of constitutional liberties, particularly the right to exercise one’s religion without government prohibition. As a result, a plethora of lawsuits regarding the Free Exercise Clause have been filed since the onset of the pandemic, and several have reached the Supreme Court. The Court has ruled in religion’s favor often. One author noted that the current Court, under Chief Justice John G. Roberts, rules in favor of religion 81% of the time. For comparison, former Chief Justice William Rehnquist’s Court ruled in favor of religion 58% of the time, several percentage points behind the current Court led by Chief Justice Roberts. Due to the expediency caused by a global pandemic, the Court is addressing hotly contested litigation under the Free Exercise Clause without delay. The current Court has issued most of its recent pro-religion decisions from the shadow docket in per curiam opinions. Further, the Court dramatically shifted its approach since the pandemic began. The Court has repeatedly granted great deference to religious exercise claims and strictly scrutinized government regulations. Indeed, the Supreme Court reminded us lately that “[t]he Free Exercise Clause protects against governmental hostility which is masked, as well as overt.”

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