Contagions, Congregations, and Constitutional Law: Reciprocity and Religious Freedom in the 1918 and 2020 Pandemics

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This article undertakes a comparison of legal restrictions on religious gatherings in the USA during the 1918 Spanish Flu pandemic and the COVID-19 pandemic. After contextualizing each pandemic within its legal, political, and social culture, the analysis distills prevailing principles between the two health crises and their approach to religious liberty. Evidence suggests that courts in both periods relied on proportionality and equality to resolve disputes between government bans on worship services and conscientious objectors. However, the experience of multiple local governments in 1918 and other nations in 2020 models a better way. Instead of using proportionality or equality, these state officials relied on reciprocity between government and religious groups. Their approach tended to produce fewer bans, lower case counts, and greater trust during the pandemic and offers a useful precedent for current US lawmakers managing the religious freedom concerns of COVID-19.