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?