Samuel J. Levine * | 24.1 | Article | Citation: Samuel J. Levine, The Supreme Court’s Hands-Off Approach to Religious Questions in the Era of COVID-19 and Beyond, U. Pa. J. Const. L. 276 (2022).

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For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. Although the Court’s approach is based in well-grounded prudential and jurisprudential concerns revolving around the role and capacity of judges to adjudicate religious issues, the Court has expanded the contours of the hands-off approach to the point that some

scholars have found parallels in the political question doctrine, accordingly dubbing the Court’s approach the “religious question doctrine.” Whatever the title, the Court’s expansion of the hands-off approach has prompted substantial scholarly criticism, as well as notable instances of dispute—if not disregard—by prominent judges, likewise on both prudential and jurisprudential grounds.

Since the start of the COVID-19 pandemic, these issues have repeatedly been brought to the forefront of legal, political, and popular discourse, as courts across the United States, including the Supreme Court, have faced difficult and often unprecedented—and, heretofore unforeseeable— questions about the place of religion and religious practice in American law and society. Concomitant with disputes over limitations on religious gatherings due to the pandemic, in July of 2020, near the end of a term that was extended because of the virus, the Supreme Court decided two important cases turning on religious doctrine. More recently, confronted with cases of its own over religious gatherings amid the pandemic, rather than issuing decisions that provide clear guidance, the Supreme Court has produced contentious and fractured rulings that stand as but further illustrations of unsettled and unsettling aspects of these ongoing controversies.

This Article suggests that, taken together, judicial rulings and rhetoric in these cases demonstrate that the hands-off approach remains, at once, both vibrant and vulnerable. Specifically, the Supreme Court’s July 2020 decisions both reinforced and extended the scope and impact of the hands-off approach, elucidating the basic elements of the Court’s approach while at the same time exemplifying some of the problems latent in judicial failure or refusal to decide issues of significant import. The religious gathering cases, in turn, offer a poignant example of the difficulties the hands-off approach imposes on judges when the proper resolution of a case seems to require, at least in part, a measure of inquiry into the substantive doctrine underlying a religious practice.

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* Professor of Law & Director of the Jewish Law Institute, Touro Law Center.