Interpretation of the Free Exercise Clause and the Disparate Effect on Faith-Based Organizations in a Time of Crisis

Abstract

In late December of 2019 a novel strain of coronavirus was discovered in the Wuhan Province of China. This novel strain, SARS-Cov-2 which causes the disease commonly known as COVID-19 began to spread across the world. In March of 2020, the United States declared a state of emergency in order to combat what had become a pandemic. Following the state of emergency declaration, state governors began to issue stay at home orders to prevent the spread of the virus within the community. These Executive Orders raised constitutional questions. Many challenges to these Orders stemmed from houses of worship. Based on the concept of neutral and generally applicable laws, the Supreme Court has upheld these Executives Orders. Not only do these Orders not specifically target faith-based organizations, but in some cases, there have been religious exemptions carved out of the restrictions for houses of worship. This comment presents an overview of some of the most prominent free exercise case law and examines how free exercise jurisprudence has been applied to this new situation. This comment posits that the Executive Orders as well as the religious exemptions carved out of said Executive Orders have had a disparate impact on minority communities. In order to combat this disparity, this comment proposes a hybrid claim against a violation of equal protection rights combined with religious rights infringement. Alone, an equal protection claim is difficult to succeed on without a showing of intentional discrimination, however, combined with religion, it may be enough to overcome this threshold.