The question for civil authorities should be to what extent does their responsibility for public safety empower them to limit peoples’ religious free exercise.
Writing for a 5-4 majority 30 years ago in Employment Division v. Smith, the late Justice Antonin Scalia established new First Amendment doctrine when he declared that so long as a law is “neutral” and “generally applicable,” you can’t go to federal court and claim that your free exercise right has been violated.
As a result, in the cases that have been popping up around the country protesting prohibitions or limits on religious gatherings, the claim is that it is unfair not to treat these gatherings the same way as other places where people are allowed to go.
Or, as the Justice Department put it in a letter to California Gov. Gavin Newsom last week, “Laws that do not treat religious activities comparable with nonreligious activities are subject to heightened scrutiny under the Free Exercise Clause of the First Amendment.”
It is fair to assume that his was the mind of “peculiar structure” that the Farewell Address targeted for believing that national morality could prevail in the absence of religious principle.
