The Double Standard of Devotion: Strict Scrutiny and the Judicial Reckoning of COVID-19

The air in the Senate hearing room was thick with the kind of tension that only arises when the abstract world of constitutional theory collides with the lived reality of political grievance. Senator Josh Hawley (R-MO), a man known for his sharp rhetorical edge and Yale-educated legal mind, leaned forward. In front of him sat a nominee for a lifetime appointment to the federal bench—a nominee whose past work defending government-mandated lockdowns was about to be put under a microscope.

At the heart of the confrontation was a fundamental question that has haunted the American legal landscape since 2020: During a crisis, does the government have the right to decide which First Amendment activities are “essential” and which are not? More specifically, the exchange focused on a stark disparity that many religious Americans viewed as a betrayal of the social contract—the moment when the state allowed thousands to gather for secular protests while prohibiting small groups from gathering to pray.

The Case of Capitol Hill Baptist Church

The focal point of Hawley’s inquiry was Capitol Hill Baptist Church v. Bowser. In 2020, as the COVID-19 pandemic gripped the nation’s capital, Mayor Muriel Bowser issued a series of executive orders aimed at curbing the spread of the virus. These orders were comprehensive, shutting down businesses, limiting travel, and—most controversially—placing a virtual ban on large religious gatherings, even those held outdoors with masks and social distancing.

The Capitol Hill Baptist Church, a congregation with a history spanning over a century, challenged these orders. They argued that their faith required them to meet in person and that the District of Columbia was infringing upon their First Amendment right to the free exercise of religion.

As Hawley methodically established the record, he highlighted the nominee’s role in defending these restrictions. The nominee, acting as counsel for the District, had argued that the public health emergency justified the total prohibition of outdoor worship services. However, as the cross-examination revealed, the District’s definition of “public health” appeared to be ideologically selective.

The “Silence” of Permission

The most striking moment of the hearing occurred when Hawley pivoted from the restrictions on churches to the government’s treatment of mass political protests. In the summer of 2020, Washington D.C. became a hub for massive demonstrations following the death of George Floyd. Thousands of people marched shoulder-to-shoulder, often encouraged by local officials.

When Hawley asked if the Mayor’s lockdown orders restricted these mass protests, the nominee’s response was a study in legal evasion. “I don’t believe it said anything one way or another,” the nominee stated, claiming the orders were “silent” on the issue of protests.

Hawley’s retort was swift and cutting. He argued that in the context of a government lockdown, “silence” is not neutrality—it is permission. By explicitly banning religious gatherings while remaining silent on (and effectively permitting) mass political protests, the government had created a hierarchy of speech. One form of expression—secular, political, and ideologically aligned with the administration—was allowed to flourish. Another form—religious, traditional, and constitutionally protected—was suppressed under the threat of legal action.

The Failure of Strict Scrutiny

To the casual observer, the debate might have seemed like a clash of political opinions. But to the legal mind, it was a debate about “Strict Scrutiny.” Under American constitutional law, when the government infringes upon a fundamental right like the free exercise of religion, the law must pass the highest level of judicial review.

To survive strict scrutiny, a government policy must:

Serve a compelling governmental interest (e.g., stopping a pandemic).

Be narrowly tailored to achieve that interest using the least restrictive means possible.

The nominee admitted in the hearing that the District lost the case because the court found the restrictions did not meet this standard. Specifically, the court found the rules were not “neutral” or of “general applicability.”

The hypocrisy was laid bare: if the government truly believed that any gathering of more than a few dozen people was a mortal threat to public health, it would have been forced to stop the protests. Because the Mayor herself participated in and celebrated the protests, the government lost its claim that the ban on churches was “narrowly tailored” to protect health. It was, as the court eventually ruled, a form of discrimination.

The “Singing” Defense and the Science of Ideology

Perhaps the most contentious part of the exchange involved the nominee’s attempt to justify the disparate treatment based on “science.” When pressed on why religious people were treated as more dangerous than protesters, the nominee pointed to the “nature of singing” in religious services, which epidemiologists suggested could transmit the virus at a higher rate.

Hawley was unimpressed. He noted that the government had failed to put any actual scientific evidence into the record to prove that masked, socially distanced outdoor worship was more dangerous than the shouting, chanting, and person-to-person contact inherent in mass street protests.

This “science” was seen by critics not as objective data, but as a pretext—a way to clothe a subjective preference for secular activism over religious devotion in the language of medicine. It suggested a worldview where a protest for “Defunding the Police” was a vital social necessity, but a Sunday morning sermon was a dangerous luxury.

The Role of the Nominee: Advocate or Ideologue?

A recurring theme in the nominee’s defense was the claim of professional obligation. “I was representing my client,” the nominee repeated, framing the defense of the unconstitutional orders as merely the duty of a diligent lawyer.

However, for Senator Hawley and many of his colleagues on the Judiciary Committee, this defense rang hollow. They argued that a judicial nominee’s past litigation reflects their understanding of the law and their commitment to the Constitution. If a lawyer repeatedly argues for the suppression of religious liberty in favor of government power, it raises legitimate questions about how they will rule once they have the power of the gavel.

Hawley’s questioning aimed to show that the nominee wasn’t just a neutral advocate, but a participant in a broader legal movement that seeks to relegate religious freedom to a secondary right—one that can be easily cast aside whenever a “public health” or “national emergency” is declared.

A Foundational Right, Not a Government Privilege

The implications of this hearing extend far beyond the specific nomination. It touched on the very definition of American liberty. As Hawley noted in his closing remarks, religious liberty is not a privilege granted by the state during “convenient” times. It is a foundational right that is most important precisely when it is inconvenient for the government.

The Capitol Hill Baptist Church case served as a warning shot. It reminded the executive branch that even in an emergency, the Constitution is not suspended. It reminded the judicial branch that “neutrality” requires treating similar conduct similarly, regardless of the message being sent.

Conclusion: The Stakes of the Judiciary

As the hearing concluded, the contrast was clear. On one side was a vision of governance that prioritizes administrative control and ideological alignment, willing to use “public health” as a shield for selective enforcement. On the other side was a vision of the law grounded in the Bill of Rights, insisting that the government cannot pick and choose whose First Amendment rights to respect.

Senator Hawley’s refusal to normalize the District’s actions was a defense of the “equal protection” of the laws. By forcing the nominee to admit that the restrictions were unconstitutional and discriminatory, Hawley highlighted a critical failure in the D.C. government’s leadership—and a potential blind spot in the nominee’s judicial philosophy.

The debate over COVID-19 lockdowns may be fading into history, but the legal precedents set during those years will shape American life for decades. The Hawley-nominee exchange serves as a permanent record of a moment when the government tried to put a “closed” sign on the doors of the church while holding the doors of the protest wide open. In the eyes of the law, and in the eyes of the Constitution, that double standard is a bridge too far.

Would you like me to analyze the specific Supreme Court precedents (like Tanden v. Newsom or Roman Catholic Diocese of Brooklyn v. Cuomo) that Hawley referenced to provide more legal context for this article?