¹ E.g., Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020).

² E.g., Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021); Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018); cf. Bostock v. Clayton County, 140 S. Ct. 1731, 1753–54 (2020).

³ E.g., Judgment of 17 Dec. 2020, Centraal Israëlitisch Consistorie van België et al., C-336/19, ECLI:EU:C:2020:1031, https://curia.europa.eu/juris/document/document.jsf?text=&docid=235717&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=16882268.

⁴ Zalman Rothschild, Free Exercise Partisanship, 107 Cornell Law Review (forthcoming 2022) (manuscript at 16) (manuscript on file with author).

⁵ See Alfred W. Crosby, America's Forgotten Pandemic: The Influenza of 1918, at 305 (2d ed. 2003).

⁶ Cf. Skeel, David A. Jr., Institutional Choice in an Economic Crisis, 2013 Wisconsin Law Review 629, 645Google Scholar (suggesting that “legally problematic responses to a crisis” can “cause lasting distortions to the law”).

⁷ See Note, Constitutional Constraints on Free Exercise Analogies, 134 Harvard Law Review 1782, 1785 (2021) [hereinafter Constitutional Constraints].

⁸ In the interests of space, I focus on cases from the United States and Europe, but “a steady stream of cases from around the world” have considered these issues as well. Hill, Mark, Coronavirus and the Curtailment of Religious Liberty, 9 Laws 1, 4 (2020)Google Scholar. For more on the situation in Africa, see id. at 5, 6. For a discussion of government responses in Asia and Oceania, see generally Guo, Xioming, An Academic Summary of the International Conference Series on “The Role of the Proportionality Principle in the Pandemic Prevention and Control, 29 Journal of Human Rights 535 (2020)Google Scholar. For a discussion of some COVID-19–related restrictions in Latin America, see Javier Martínez-Torrón, COVID-19 and Religious Freedom: Some Comparative Perspectives, 10 Laws 39, at 6 (Brazil), at 12 (Chile) (2021).

⁹ See, e.g., Brand, Oliver, Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies, 32 Brooklyn Journal of International Law 405, 418 (2007)Google Scholar.

¹⁰ See Cassell v. Snyders, 990 F.3d 539, 549 (7th Cir. 2021) (noting that governments have “been forced to act with imperfect knowledge” when devising strategy during the COVID-19 pandemic). Cf. Adelaide Madera, Some Preliminary Remarks on the Impact of COVID-19 on the Exercise of Religious Freedom in the United States and Italy, 16 Stato, Chiese e Pluralismo Confessionale 70, 77 (2020) (observing that the COVID-19 crisis required the Italian government “to undertake . . . a complex balancing of many fundamental freedoms with the urgent need to protect public health and safety and to do so very quickly”).

¹¹ Employment Division v. Smith, 494 U.S. 872 (1990). For contrasts between the two approaches, see, for example, Justin Collings and Stephanie Hall Barclay, Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty, Boston College Law Review (forthcoming 2022) (manuscript at 6) (on file with author) (suggesting that the two approaches are not “interchangeable when it comes to protecting religious exercise”). See also Jamal Greene, Foreword: Rights as Trumps, 132 Harvard Law Review 28, 34–35 (2018) (distinguishing proportionality analysis from U.S. “categoricalism”).

¹² See, e.g., Paul Yowell, Constitutional Rights and Constitutional Design 16 (2018) (describing the proportionality test). For more on the proportionality test, see infra text accompanying notes 27–34.

¹³ Collings and Barclay, supra note 11 (manuscript at 13) (arguing that Smith “openly and energetically eschewed any meaningful form of interest-balancing”). In Smith, the U.S. Supreme Court held that a religiously neutral and generally applicable law could permissibly restrict the exercise of religion, so long as the law had a rational basis. Smith, 494 U.S. at 881–82. For more on the Smith approach, see infra text accompanying notes 73–77.

¹⁴ See, e.g., Marc O. DeGirolami, The Tragedy of Religious Freedom 150, 160–65 (2013) (arguing that Smith does not provide the predictability proponents claim).

¹⁵ Cf. Yowell, supra note 12, at 9 (noting how constitutional-rights adjudication in U.S. courts typically attempts to “strike the right balance between collective and individual interests”); Leading Case, Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), 134 Harvard Law Review 470, 477 (2020) (noting that many of the Supreme Court's religion clause cases “boil down to raw interest-balancing exercises”).

¹⁶ Note, Constitutional Constraints, supra note 7, at 1790. See also Josh Blackman, The “Essential” Free Exercise Clause, 44 Harvard Journal of Law & Public Policy 637, 686 (2021).

¹⁷ See Collings and Barclay, supra note 11 (manuscript at 3–4) (“religious liberty depends less on which framework is adopted than on how that framework is employed”) (emphasis in original).

¹⁸ Compare Kahan, Dan M. et al. , “Ideology” or “Situation Sense”? An Experimental Investigation of Motivated Reasoning and Professional Judgment, 164 University of Pennsylvania Law Review 349, 354–55 (2016)Google Scholar (arguing that professional training and experience help judges overcome “political predispositions”) and Gregory C. Sisk and Michael Heise, Ideology “All the Way Down”? An Empirical Study of Establishment Clause Decisions in the Federal Courts, 110 Michigan Law Review 1201, 1204 (2012) (arguing that judges’ politics and ideology play a major role in Establishment Clause cases). For more on the topic, see generally Klonick, Kate, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harvard Law Review 1598, 1643–44 (2018)Google Scholar.

¹⁹ See Rothschild, supra note 4 (manuscript at 3).

²⁰ See Blackman, supra note 16, at 638. Lee Epstein and Eric Posner maintain that even before Barrett's appointment, the Roberts Court was already ruling “in favor of religious organizations, including mainstream Christian organizations, more frequently than its predecessors,” and they predict that her appointment “may accelerate” this “trend.” Lee Epstein and Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, Supreme Court Review (forthcoming) (manuscript at 18), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3825759.

²¹ Rothschild, supra note 4 (manuscript at 44).

²² Wright, R. George, Free Exercise and the Public Interest After Tandon v. Newsom, 2021 University of Illinois Law Review Online 189, 194Google Scholar.

²³ Howard Kislowicz, Judging Religion and Judges’ Religions, 33 Journal of Law & Religion 42, 47 (2018) (citation omitted).

²⁴ See Lilliana Mason, Uncivil Agreement: How Politics Became Our Identity 14 (2018).

²⁵ Lawrence Wright, The Plague Year: America in the Time of Covid 85 (2021).

²⁶ Cf. Wright, supra note 22, at 194 (noting that “normative judgments” about restrictions to mitigate the spread of COVID-19 “must be made in the context of a culture that has been increasingly fracturing, if not fragmenting, on relevant moral and political issues, for decades”).

²⁷ See Hill, supra note 8, at 3. For more on proportionality analysis and the COVID-19 epidemic worldwide, see generally Guo, supra note 8.

²⁸ Yowell, supra note 12, at 9. See also id. at 16; Greene, supra note 11, at 58.

²⁹ Collings and Barclay, supra note 11 (manuscript at 17).

³⁰ Yowell, supra note 12, at 15.

³¹ Id. at 16.

³² Collings and Barclay, supra note 11 (manuscript at 17). See also Greene, supra note 11, at 59 (observing that “[t]ypical proportionality formulations comprise either three or four ordered steps in the analysis”).

³³ Paul Yowell observes that “[i]n strict scrutiny, courts ask whether there are less restrictive alternatives in determining whether the government measure is ‘narrowly tailored’—similarly to the necessity component of the European proportionality inquiry, which is sometimes phrased in terms of ‘minimal impairment.’” Yowell, supra note 12, at 23.

³⁴ Collings and Barclay, supra note 11 (manuscript at 21).

³⁵ See, e.g., George Androutsopoulos, The Right of Religious Freedom in Light of the Coronavirus Pandemic: The Greek Case, 10 Laws 1 (2021) (Greece); Collings and Barclay, supra note 11 (manuscript at 34–38) (Canada); id. at 39–40 (Germany); Fornerod, Anne, Freedom of Worship during a Public Health State of Emergency in France, 10 Laws 1 (2021) (France)CrossRefGoogle Scholar; Martínez-Torrón, supra note 8, at 12 (Scotland).

³⁶ See, e.g., Collings and Barclay, supra note 11 (manuscript at 25) (noting French Council of State's “rulings in favor of religious claimants”); id. at 39 (discussing a ruling by the German Federal Constitutional Court that certain COVID-19–related restrictions were not disproportionate).

³⁷ Cf. Martínez-Torrón, supra note 8, at 11 (noting that “within the same country, the courts’ approach has sometimes changed depending on the moment that the claim was decided”).

³⁸ On the French Council of State, see, for example, Fornerod, supra note 35, at 3. On the German Federal Constitutional Court, see Collings and Barclay, supra note 11 (manuscript at 39–40).

³⁹ Hill, supra note 8, at 4. Courts applying the proportionality test under the case law of the European Court of Human Rights would also need to consider the margin of appreciation doctrine. For more on that doctrine, see, for example, Jim Murdoch, Protecting the Right to Freedom of Conscience under the European Convention on Human Rights 41–43 (2012), at https://www.echr.coe.int/LibraryDocs/Murdoch2012_EN.pdf.

⁴⁰ A debate exists on how much role balancing as such should have in proportionality analysis, see Greene, supra note 11, at 58, and as I explain in the text, courts frequently skip the final step of the analysis. But balancing is formally a fundamental part of the test, and even the “necessity” step can involve balancing, as courts try to determine whether the marginal benefit of a restriction, in terms of the legislature's stated aim, outweighs the damage to a claimant's rights. See Collings and Barclay, supra note 11 (manuscript at 21).

⁴¹ [2021] CSOH 32.

⁴² Id. ¶ 127; see also id. ¶ 90 (quoting Article 9).

⁴³ Id. ¶¶ 16–17.

⁴⁴ Id. ¶ 17.

⁴⁵ Id. ¶ 19.

⁴⁶ Id. ¶ 96.

⁴⁷ Id. ¶ 100.

⁴⁸ Id. ¶ 101.

⁴⁹ Id. ¶ 102.

⁵⁰ Id. ¶ 112.

⁵¹ Id. ¶ 114.

⁵² See id.

⁵³ Id. ¶ 115.

⁵⁴ Id. ¶ 106.

⁵⁵ Id. ¶ 111.

⁵⁶ Id.

⁵⁷ Id.

⁵⁸ Id. ¶ 118.

⁵⁹ Id. ¶ 119.

⁶⁰ Id.

⁶¹ See id. ¶ 125.

⁶² Id. Debates about which activities were “essential” also took place in other countries applying the proportionality test. Martínez-Torrón, supra note 8, at 6 (Spain and Brazil).

⁶³ See Philip et al., [2021] CSOH 32 ¶ 121.

⁶⁴ See id. ¶ 123.

⁶⁵ Id. ¶ 121; id. ¶ 62 (“worship-lite”).

⁶⁶ Id. ¶ 126.

⁶⁷ For an interesting discussion of why public-health professionals might systematically undervalue religious viewpoints when making decisions, see Drakeman, Donald L., Some Second Thoughts about the Humanities, 56 Zygon 732, 736–39 (2021)CrossRefGoogle Scholar (book review). “At present,” Drakeman observes, “many of the most influential public health professionals are consciously ignoring religiously based input.” Id. at 739.

⁶⁸ Cass R. Sunstein, Our Anti-Korematsu, Harvard Public Law Working Paper No. 21–21 (manuscript at 5) (2020), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3756853.

⁶⁹ Philip et al., [2021] CSOH 32 ¶ 123. Martínez-Torrón observes that religious communities were especially deferential to government restrictions early in the crisis, but less so as time passed. Martínez-Torrón, supra note 8, at 9–11.

⁷⁰ See, e.g., Collings and Barclay, supra note 11 (manuscript at 28–29).

⁷¹ See id. (manuscript at 3–4).

⁷² Kislowicz, supra note 23, at 47 (citation omitted).

⁷³ 494 U.S. 872, 879–82 (1990).

⁷⁴ See Kent Greenawalt, 1 Religion and the Constitution 31 (2006).

⁷⁵ See Fallon, Richard H. Jr., Strict Judicial Scrutiny, 54 UCLA Law Review 1267, 1269 (2007)Google Scholar.

⁷⁶ See Michael W. McConnell et al., Religion and the Constitution 115 (4th ed. 2016).

⁷⁷ See id.

⁷⁸ See Collings and Barclay, supra note 11 (manuscript at 14) (arguing that Smith “openly and energetically eschewed any meaningful form of interest-balancing”); see also McConnell et al., supra note 76, at 146; Kent Greenawalt, Religion and the Rehnquist Court, 99 Northwestern University Law Review 145, 152–53 (2004).

⁷⁹ See Jiwoon Kong, Note, Safeguarding the Free Exercise of Religion during the COVID-19 Pandemic, 89 Fordham Law Review 1589, 1609 (2021).

⁸⁰ See Sunstein, supra note 68, at 5–6 (“‘selective sympathy and indifference’”) (citation omitted). On one possible example of hostility, see Agudath Israel of America v. Cuomo, 980 F.3d 222, 229 (2nd Cir. 2020) (Park, J., dissenting) (discussing New York Governor Andrew Cuomo's remarks about ultra-Orthodox Jews).

⁸¹ See Soos v. Cuomo, 470 F.Supp.3d 268, 276 (N.D.N.Y. 2020).

⁸² See Note, Constitutional Constraints, supra note 7, at 1788.

⁸³ See id. at 1785; cf. James M. Oleske, Jr., Free Exercise (Dis)honesty, 2019 Wisconsin Law Review 689, 691 (noting that “inconsistencies and uncertainties have plagued the Court's free exercise jurisprudence for decades”).

⁸⁴ Blackman, supra note 16, at 686.

⁸⁵ South Bay United Pentecostal Church v. Newsom (South Bay I), 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring in denial of application for injunctive relief).

⁸⁶ See Blackman, supra note 16, at 681–82; see also Jim Oleske, Tandon Steals Fulton's Thunder: The Most Important Free Exercise Decision Since 1990, SCOTUSblog, April 15, 2021, https://www.scotusblog.com/2021/04/tandon-steals-fultons-thunder-the-most-important-free-exercise-decision-since-1990/ (discussing the Court's disposition of emergency “challenges to COVID limits”). On the shadow docket generally, “a range of orders and summary decisions that defy [the Court's] normal procedural regularity,” see Baude, William, Foreword: The Supreme Court's Shadow Docket, 9 N.Y.U. Journal of Law & Liberty 1, 1 (2015)Google Scholar.

⁸⁷ Rothschild, Zalman, Free Exercise's Lingering Ambiguity, 11 California Law Review Online 282, 289–90 (2020)Google Scholar. This is so even though the justices “did not directly engage” with Smith. Id. at 289.

⁸⁸ South Bay I, 140 S. Ct. at 1613 (Roberts, C.J.).

⁸⁹ Id.

⁹⁰ Id. at 1614 (Kavanaugh, J., dissenting from denial of application for injunctive relief).

⁹¹ Calvary Chapel v. Sisolak, 140 S. Ct. 2603 (2020).

⁹² Id. at 2605 (Alito, J., dissenting from denial of application for injunctive relief).

⁹³ Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam).

⁹⁴ Id. at 66.

⁹⁵ Id. at 69 (Gorsuch, J., concurring).

⁹⁶ Id. at 79 (Sotomayor, J., dissenting).

⁹⁷ Id. at 80.

⁹⁸ South Bay Pentecostal Church v. Newsom (South Bay II), 141 S. Ct. 716 (2021). The majority declined to enjoin other restrictions, in part because the record was not sufficiently clear. See id. at 717 (Barrett, J., concurring in the partial grant of application for injunctive relief).

⁹⁹ Id. at 717 (Statement of Gorsuch, J.).

¹⁰⁰ Id. at 720 (Kagan. J., dissenting).

¹⁰¹ 141 S. Ct. 1294 (2021) (per curiam).

¹⁰² Id. at 1297.

¹⁰³ Id. at 1298 (Kagan, J., dissenting).

¹⁰⁴ Sunstein, supra note 68, at 14.

¹⁰⁵ Id. at 3; see also id. at 14. Questions about whether permitted nonreligious gatherings were comparable to prohibited religious gatherings occupied courts outside the United States as well. See Collings and Barclay, supra note 11 (manuscript at 25–27).

¹⁰⁶ See Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 346 (7th Cir. 2020) (“[i]t would be foolish to pretend that worship services are exactly like any of the possible comparisons”); see also Rothschild, supra note 4 (manuscript at 45 & n.222).

¹⁰⁷ Questions about how much deference to give public health authorities occupied courts outside the United States as well. See Collings and Barclay, supra note 11 (manuscript at 34–40).

¹⁰⁸ Cf. Rothschild, supra note 4 (manuscript at 47) (arguing that “the real constitutional question” that divided the justices in South Bay I “was whether it could be said that California was discriminating against religion by having different standards for church gatherings and certain secular gatherings”).

¹⁰⁹ Note, Constitutional Constraints, supra note 7, at 1790; see also Blackman, supra note 16, at 686.

¹¹⁰ Greene, supra note 11, at 57.

¹¹¹ Id.

¹¹² Compare McConnell et al., supra note 76, at 115 (strict scrutiny), with Yowell, supra note 12, at 16 (proportionality).

¹¹³ See Oleske, supra note 83, at 740–41.

¹¹⁴ Collings and Barclay, supra note 11 (manuscript at 21).

¹¹⁵ On the similarity between the two tests generally, see Yowell, supra note 12, at 20–21.

¹¹⁶ Cf. id. at 23 (arguing generally for the similarity of the least-restrictive means and necessity requirements).

¹¹⁷ Reverend Dr William J U Philip and Others, [2021] CSOH 32, ¶ 100.

¹¹⁸ Fallon, supra note 75, at 1272; see also Helfand, Michael A., Religious Institutionalism, Implied Consent, and the Value of Voluntarism, 88 Southern California Law Review 539, 581 (2015)Google Scholar; Sepinwall, Amy J., Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby's Wake, 82 University of Chicago Law Review 1897, 1907 (2015)Google Scholar.

¹¹⁹ Fallon, supra note 75, at 1272.

¹²⁰ South Bay II, 141 S. Ct. 716 (2021).

¹²¹ Id. at 717 (Statement of Gorsuch, J.). Justices Thomas and Alito joined Gorsuch's statement in full. Justices Barrett and Kavanaugh agreed with Gorsuch's analysis of the ban on indoor worship but disagreed with his conclusion that California's ban on singing during indoor services also violated the First Amendment, because, in their view, the record on that question was unclear. Id. (Barrett, J., concurring in the partial grant of application for injunctive relief).

¹²² Id. at 718 (Statement of Gorsuch, J.).

¹²³ See id.

¹²⁴ Id. at 718–19.

¹²⁵ Id. at 719, 720.

¹²⁶ Id. at 718.

¹²⁷ Id. at 720.

¹²⁸ Id. at 723 (Kagan, J., dissenting).

¹²⁹ See supra text accompanying note 64 (discussing Philip et al.), text accompanying note 69 (same).

¹³⁰ South Bay II, 141 S. Ct. at 721 (Kagan, J., dissenting).

¹³¹ Id.

¹³² Id. at 723.

¹³³ Id.

¹³⁴ Cf. Caroline Mala Corbin, Religious Liberty in a Pandemic, 70 Duke Law Journal Online 1, 27 (2020) (noting that a court's rigorousness in applying strict scrutiny might “depend on its assessment of the gravity of the pandemic”).

¹³⁵ On similarities between proportionality and strict scrutiny generally, see Yowell, supra note 12, at 9, 20–21.

¹³⁶ See Paul Horwitz, The Lobby, Hobby Moment, 128 Harvard Law Review 154, 158–59 (2014)Google Scholar (noting how the cultural consensus in favor of religious accommodations has dissolved and the effect this has had on legal decisions).

¹³⁷ See Mark Storslee, The COVID-19 Church-Closure Cases and the Free Exercise of Religion, 37 Journal of Law & Religion (this issue) (observing that “(the COVID-19–related cases) further aggravated an already politicized debate about the Free Exercise Clause”).

¹³⁸ Storslee, Mark, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 University of Chicago Law Review 871, 937 (2019)Google Scholar.

¹³⁹ Cf. Braman, Donald & Kahan, Dan M., Legal Realism as Psychological and Cultural (Not Political) Realism, in How Law Knows 93, 114 (Sarat, Austin et al. , eds., 2007)Google Scholar (observing that where “values and norms” are “widely shared,” most judges “will find no difficulty reaching agreement”).

¹⁴⁰ See id. at 103 (observing that “in cases that are the focus of competition between cultural groups in society at large . . . the evidence suggests that cultural cognition leads [judges] in different directions”).

¹⁴¹ Kislowicz, supra note 23, at 42.

¹⁴² Brownstein, Alan, Continuing the Constitutional Dialogue: A Discussion of Justice Stevens's Establishment Clause and Free Exercise Jurisprudence, 106 Northwestern University Law Review 605, 638 (2012)Google Scholar.

¹⁴³ On how professional experience and training may diminish the effects of judges’ political and ideological commitments, see Kahan et al., supra note 18, at 354–55.

¹⁴⁴ Andrew Koppelman, Neutrality and the Religion Analogy, in Religious Exemptions 165, 165 (Kevin Vallier & Michael Weber, eds., 2018).

¹⁴⁵ See, e.g., Mason, supra note 24, at 14, 33, 37.

¹⁴⁶ See Movsesian, Mark L., Cakeshop, Masterpiece and the Future of Religious Freedom, 42 Harvard Journal of Law & Public Policy 711, 747–48 (2019)Google Scholar; see also Sisk and Heise, supra note 18, at 1205, 1233–36.

¹⁴⁷ See, e.g., Pew Research Center, Faith among Black Americans 120 (Feb. 16, 2021) (“Black adults from all religious backgrounds are strongly Democratic.”); Frank Newport, The Religious Left Has a Numbers Problem, Gallup's Polling Matters, June 4, 2019, https://news.gallup.com/opinion/polling-matters/258032/religious-left-numbers-problem.aspx (noting the comparatively weak “influence of the religious left within the Democratic party”) (emphasis omitted).

¹⁴⁸ In a recent study, Epstein and Posner maintain that the Roberts Court's greater solicitude for religious organizations “largely” results from “the appointment by Republican presidents of Supreme Court justices who favor religious rights and liberties.” Epstein and Posner, supra note 20 (manuscript at 4).

¹⁴⁹ Neal Devins and Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court 13 (2019).

¹⁵⁰ Id. at 121. But cf. Perino, Michael A., Law, Ideology, and Strategy in Judicial Decision Making: Evidence from Securities Fraud Actions, 3 Journal of Empirical Legal Studies 497, 508 (2006)CrossRefGoogle Scholar (noting that with respect to lower-court appointments, “Presidents frequently use their nominating powers to push partisan or personal, rather than ideological, agendas”) (citation omitted).

¹⁵¹ See Devins and Baum, supra note 149, at 112 (noting the “more pronounced” divisions among elites than exist “in the general population”); id. at 117 (noting “the emergence of distinct career paths for conservatives and liberals” among legal elites).

¹⁵² Storslee, supra note 138, at 937.

¹⁵³ Cf. Sisk and Heise, supra note 18, at 1238 (observing that partisan differences have also begun to “percolat[e]” into the Court's Establishment Clause jurisprudence).

¹⁵⁴ Rothschild, supra note 4 (manuscript at 3).

¹⁵⁵ Id.

¹⁵⁶ Id. (manuscript at 43–44).

¹⁵⁷ See Blackman, supra note 16, at 638.

¹⁵⁸ On the United States’ culture wars generally, see James Davison Hunter, Culture Wars: The Struggle to Define America (1992).

¹⁵⁹ See Wright, supra note 22, at 194. In the Establishment Clause context, Micah Schwartzman and Nelson Tebbe have identified what they describe as a pattern of “appeasement” by progressive justices, who offer conservative justices “unilateral concessions for the purpose of avoiding further conflict.” Micah Schwartzman and Nelson Tebbe, Establishment Clause Appeasement, 2019 Supreme Court Review 271, 272. Whatever the situation in the Establishment Clause context, such a pattern has not appeared so far in the COVID-19–related cases.

¹⁶⁰ Martínez-Torrón, supra note 8, at 2.

¹⁶¹ Id.

¹⁶² Id.