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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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