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.

(link). 3 Id. 4 Id. Teaching these subjects occupied all but forty-five minutes of each seven hour day. Id. In teaching these classes, she used the same textbooks as used in public schools. Id. at 773. 5 Id. at 773. 6 Id. (-Throughout her leave, Perich regularly provided [the principal] with updates about her condition and progress.‖).

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One of the most notable trends in recent Supreme Court jurisprudence is the expansion of religious liberty rights. The right to practice one’s faith is a core feature of a democracy, but the Supreme Court has privileged that right over other equally critical ones, most notably the right to equal treatment. Thus, for example, the Court has held that for-profit companies have a religious right to exclude contraception from their health insurance plans and that nonprofit charities have a religious right to refuse to place foster children with same-sex couples. In these and similar cases, the religious beliefs aligned with conservative Christianity. But what if the religious liberty claim were not brought by a conservative Christian but by a progressive Christian, or not a Christian at all, and the religious belief collided with traditional Christian ideology? More precisely, what might be the result of a religious liberty challenge to an abortion ban? This question is not farfetched, as Jewish and other faith groups in multiple states are challenging restrictive abortion laws based upon religious freedom. These plaintiffs argue that their state’s abortion ban impedes their ability to live out the commandments of their faith. Would the Supreme Court retrench its religious liberty doctrine in the face of these lawsuits? Or would expansive religious liberty exemptions be available for progressive views as well as conservative ones? Or neither? This Essay examines that question, as well as the implications of denying the progressive religious liberty claim. Part I outlines the ballooning of religious liberty rights, and how they have usually helped conservative white Christians at the expense of less powerful groups. Part II applies the current expansive doctrine to a claim for a religious right to abortion, arguing it should succeed given recent decisions. Part III suggests that, despite the current doctrine, the Court will likely reject the claim and discusses what this failure indicates about the future of the Supreme Court.

2. The Act requires an employer's group health plan to cover "preventive care" without any cost-sharing. Patient Protection and Affordable Care Act, § 2713(a)(4), 124 Stat. 119, 131 (codified at 42 U.S.C. § 300gg-13(a)(4)). 3. As recommended by the independent Institute of Medicine, women's preventive care was defined to include FDA-approved contraception methods. 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012) (to be codified at 26 C.F.R. pt. 54).