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70 Duke L.J. Online 1 (2020-2021)

handle is hein.journals/duljo70 and id is 1 raw text is: Duke Law Journal Online VOLUME 70 SEPTEMBER 2020 RELIGIOUS LIBERTY IN A PANDEMIC CAROLINE MALA CORBINt ABSTRACT The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans. TABLE OF CONTENTS Introduction ................................................................................................1 I. Standard of Review ...............................................................................5 II. Bans as Neutral and Generally Applicable .......................................9 A. Neutrality ..................................................................................10 B. General Applicability...............................................................13 1. Essential versus Non-Essential ..........................................15 a. Essential as Necessary to Life.....................................15 b. Essential as No Alternative Available .......................17 2. Public Health Risk..............................................................18 III. Strict Scrutiny....................................................................................26 C on clu sion ............................................................................................ . 28 INTRODUCTION We are facing an unprecedented public health crisis. The dangers of the pandemic cannot be overstated: medical researchers are still struggling to devise an effective treatment, and a vaccine is still months away. Meanwhile, the number of people testing positive for the novel Copyright © 2020 Caroline Mala Corbin. t Professor of Law & Dean's Distinguished Scholar, University of Miami School of Law. I would like to thank Jessie Hill and Michael Cheah for helpful comments. I also must thank the amazing team at the Duke Law Journal, especially Scotty Schenck and Lauren Smith.

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