The second principle is that government can regulate religious activity only through what the Supreme Court calls “neutral” and “generally applicable” laws. This means that a government requirement cannot single out religious activity on the ground that it is somehow dispensable or “nonessential.” The government may regulate religious activities no more strictly than it regulates secular activities that present comparable risks. This principle was invoked by Judge Justin Walker of the Western District of Kentucky when he allowed a drive-in Easter service to take place in a church parking lot with cars six feet apart from one another. Noting that Kentucky permitted drive-through liquor stores to continue operating, the court quipped, “if beer is ‘essential,’ so is Easter.” It is not for government officials to decide whether religious worship is essential; the First Amendment already decided that. The question is whether, and how, it may be conducted without undue risk to public health.

Third, both sides must seek what the courts call “reasonable accommodations.” These are tailored arrangements that allow people to practice their faith to the maximum practicable extent while still minimizing the dangers those activities pose to the public. Sacramental wine was permitted during Prohibition; Quakers are not drafted into the Army; kosher and halal facilities are excused from some of the details of meatpacking regulations.

Reasonable accommodation is the most important principle as we emerge from the first phase of this crisis. Government officials must continue to be vigilant about realistic public health dangers from religious practice, but they must identify “less restrictive” means for achieving their purposes. For instance, Jewish ritual baths, called mikvahs, are permitted to operate in the tristate area, but are doing so with stricter rules and regulations, including enhanced disinfection and cleaning, and they are visited by appointment only. Similarly, priests in New York City hospitals designated by the Catholic Archdiocese are permitted to enter patients’ rooms to give communion, so long as they wear all necessary protective equipment. These accommodations require a bit of trust on the part of the government and will need to be verified, potentially with clergy attesting to compliance with certain rules. But such trust is also required when California and Colorado deem marijuana dispensaries essential businesses.

Religious leaders and congregations will have to remember that the First Amendment is not an exemption from law applicable to all. And government officials must not forget that religious exercise is at the apex of our national values. Mass is not a football game, a minyan not a cruise. Worship cannot shelter in place indefinitely.

Michael W. McConnell, a former federal judge, is a law professor and director of the Constitutional Law Center at the Stanford Law School. Max Raskin (@maxraskin) is an adjunct professor of law at New York University.

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