It’s not discrimination when the same health and safety rules are applied equally to all. When states enforce rules against such gatherings, they are not singling out “religious observance.” They are including religious observance on a list defined by the most neutral of possible terms: risk of infection. Churches are bound by fire codes, just like other institutions, and the same principle articulated in Scalia’s 1990 opinion in Employment Division v. Smith applies here.
It’s especially not discrimination to apply universal health and safety rules to religious assemblies when there is ample evidence that religious assemblies—much more than beaches or parks—have proved capable of spreading the virus. An outbreak in Georgia traces to a church funeral in Dougherty County, one in Louisiana to a megachurch that ignored social distancing.
It’s striking that nearly a month after conservative media began complaining, the Justice Department still cannot identify any instances of unfair treatment of worshippers beyond the wish of some megachurches to keep operating as usual in a time of pandemic. Indeed, the only documented instance of anti-religious bigotry in recent weeks is Trump’s own accusation that Muslims were benefiting from special treatment denied to Christians.