Let’s assume for the sake of argument that a church challenging a shutdown order would receive the highest level of legal protection, a test referred to by courts as “strict scrutiny.” Under this test, the government would need to articulate a compelling interest, and its directive would need to be narrowly tailored and executed in the least restrictive means toward accomplishing its interest. That’s a very high standard, and one that is not usually satisfied. But the government is likely to meet it here. The widespread protection of human life is clearly a compelling government interest, and in the specific circumstances of this crisis, given what we know now of the virus, a shutdown order, especially one aimed at gatherings over a certain size, is both narrowly tailored and the least restrictive means.

All shutdown orders include exemptions for hospitals and certain essential government services, some of which will necessarily require large groups of people to congregate. This introduces a strange irony to the analysis. In most free-exercise cases, when the government grants a nonreligious exemption to a generally applicable law, that exemption weakens the government’s claim to a compelling interest. For example, in a well-known opinion from his time on the Third Circuit, then-Judge Samuel Alito concluded that a single nonreligious exemption to a police-department policy prohibiting beards on officers (the nonreligious exemption was for medical conditions) required the department to grant a religious exemption. After all, if the law were really so important that it required stifling a fundamental right to the free exercise of religion, then how could the government justify other exemptions?

The question of how many and what kinds of nonreligious exemptions will necessitate a religious exemption is much debated among courts and scholars, but that debate takes an odd turn in this context. Social distancing presents a kind of collective-action problem: It’s only going to work if most people decide to follow along, even if their own individual preferences would have them do otherwise. But of course, hospital work and other essential functions must carry on. The strange outcome of this is that the necessary exceptions actually strengthen the compelling nature of the government’s interest in everybody else’s compliance. Houses of worship must practice social distancing to ensure that room remains for the few necessary exceptions. As long as the government can justify its exceptions, its legal position is strengthened rather than weakened by including them. (It would be a different story if a shutdown order exempted restaurants but not churches—in that case, the nonreligious exemptions would not seem as justified.)

Why then, do some state and local shutdown orders appear to exempt churches? One reason could be bad legal advice: The legal landscape is complicated, and some decision makers might be relying on general notions of “religious liberty” or “the separation of church and state” that do not accurately reflect the law. Another reason is political: Churches and houses of worship are important anchor institutions in many communities, especially in times of humanitarian crisis. Civic leaders may be trying to show goodwill and avoid applying a heavy hand, particularly knowing that they will need to partner effectively with religious institutions in the coming weeks and months.