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Religious Liberty in COVID-19’s Wake

The COVID-19 epidemic has reordered Americans’ priorities, including with respect to religious freedom. Debates about whether believers may receive exemptions from anti-discrimination laws continue, of course, and the Supreme Court will issue a ruling any day now on the permissibility of public funding for private religious schools. But in the spring of 2020, the religious freedom issue drawing the most attention in America is this: can the government restrict congregational worship in order to curb the coronavirus epidemic?

In the past few weeks, a handful of churches—almost all of them Evangelical—have filed lawsuits challenging the constitutionality of state and local bans on religious gatherings. More lawsuits will likely follow in the weeks ahead, for reasons I will explain. The inconsistent results in these cases reflect the uncertain state of the law with respect to religious exemptions. The challenges also reveal something interesting, and puzzling, about the churches that are bringing the lawsuits.

Ever since it became clear that community spread of the COVID-19 virus constitutes a serious threat to public health, state and local governments have issued restrictions on public gatherings. The rules differ from place to place. Sometimes the restrictions apply to gatherings of any size. Sometimes they apply to gatherings of more than a specified number of people; the most common number seems to be five or 10. Typically, the bans do not apply to gatherings for “essential” purposes. For example, in New York, where I live, the ban on public gatherings does not apply to hospitals and health-care agencies, grocery and liquor stores, hardware and home repair stores, and banks, among other things.

In New York and most other states, however, the bans do apply to gatherings for religious purposes. Most states either prohibit corporate worship entirely as “non-essential”—New York, for example—or restrict it to small numbers of people. Only a minority of states, 15, currently allow religious gatherings without any restriction.

The vast majority of churches and houses of worship, something like 90%, according to a recent Pew survey, have gone along with these restrictions, at least for the time being. This should not be a surprise. Religious believers care about public health, too, and many churches and religious communities, even among the most traditional, have found ways to be flexible. Many have taken advantage of the internet and online streaming to hold virtual worship services and Bible studies—a contemporary version of spoiling the Egyptians. But a handful of churches have brought lawsuits challenging the bans on constitutional grounds, and that number is likely to increase. As my colleague, Marc DeGirolami, writes, “temperatures are rising”—for two reasons. 

First, after weeks of isolation, people have tired of restrictions on social and commercial life, and state and local governments inevitably have begun to loosen constraints on public gatherings. As more and more activities resume after being “on pause,” maintaining restrictions on corporate worship will seem unreasonable. To give an example from outside the US, the Italian government recently announced plans to reopen museums, libraries, restaurants, and many retail shops while continuing the ban on church services, a decision that has deeply angered the country’s Catholic bishops and struck many observers as irrational. No doubt, some local governments in the US would favor doing something similar here.

Second, at least some elected officials have shown a tendency to overreach and target believers unfairly. Here in New York, Mayor DeBlasio has warned that churches that hold services during the epidemic risk “permanent” closure—an empty threat, but one that indicates where the mayor’s heart lies. Moreover, at the end of April, in response to a Hasidic funeral in Brooklyn that violated the ban on gatherings, the mayor tweeted a petulant warning to the entire “Jewish community.” The mayor did not similarly castigate the crowds that had gathered across town to watch a US Navy and Air Force flyover.

So far, the lawsuits have achieved mixed results. Federal district courts in California and New Mexico, for example, have rejected challenges and ruled that the bans in those states are constitutional. Federal district courts in Kansas and Kentucky, by contrast, have ruled that the bans in those states do violate the First Amendment. This past weekend, the Sixth Circuit agreed, holding that Kentucky’s ban on church services violates the Free Exercise Clause.

These cases are very fact-specific and turn on the specific language of the bans in question. But there is another, more important reason for the courts’ division. The law with respect to religious exemptions is quite indeterminate. Under the Supreme Court’s landmark ruling in Employment Division v. Smith (1990), no right to an exemption exists where a law is neutral and generally applicable, that is, where the law does not target religion for disfavored treatment. If a ban on public gatherings qualifies as a neutral and generally applicable law, a church cannot prevail.

If a law targets religion for disfavored treatment, by contrast, a church may have a right to a religious exemption—but not where the state can show that it has a compelling reason for enforcing the law against the church and has chosen the least restrictive means of doing so. As many have noted, this form of “strict scrutiny” essentially operates as a balancing test that requires judges to weigh the seriousness of the burden on religious exercise against the significance of the goal the state is trying to reach. If the goal is sufficiently important, the law will stand, regardless of the burden on religious exercise.

Both these questions—whether a law is generally applicable and whether the burdens of a ban outweigh its benefits—leave much to the discretion of individual judges. For example, if a law forbids religious gatherings, but allows comparable secular gatherings, the law does not qualify as generally applicable. But which gatherings qualify as “comparable”? Is gathering in a church like or unlike gathering in a shopping mall? On what basis should one make the comparison? The importance of the gathering to individuals? The likelihood of contagion? The possibility of broadcasting the gathering remotely? Judges will likely differ on such matters. Indeed, they already have.  

Or consider the balancing test. Most of us would agree that curbing an epidemic is a compelling state interest. But how should one weigh that interest against the burden on religion? Some judges and scholars reason that banning worship services does not impose a serious burden on religion, since people can always watch online or pray at home. Others, by contrast, point out that religion is by nature a collective experience and that bans on gathering are serious impositions. How a judge decides such questions will depend greatly on his or her intuitions about the nature of religion—and judges’ intuitions differ greatly.

The fact that courts have reached conflicting results thus reflects the indeterminacy of the law in this area. The lawsuits also reveal something interesting, and puzzling, about the churches that are bringing them. As far as I can tell, Evangelical congregations have brought virtually all these lawsuits. This is a puzzle, because, in comparative terms, Evangelical worship tends to emphasize preaching, rather than liturgy and sacraments, and one can deliver a sermon remotely. For Catholic and Orthodox Christians, by contrast, the main point of the liturgy is for the faithful to receive Communion, which they obviously cannot do online. This is not to say that fellowship is unimportant in Evangelical worship, or that preaching is unimportant for Catholics and Orthodox. But, given the character of their worship, one would expect liturgical churches to be more exercised about bans on corporate worship than Evangelicals. The situation is exactly the reverse.

It’s not clear why this should be, and the reasons are no doubt complicated, but I’ll offer a couple of possible explanations. First, Evangelical churches tend to be independent. They do not answer to hierarchies that can impose discipline on them, which means they have a certain freedom in deciding how to respond to government action. (It also means they cannot rely on hierarchies to cushion the financial impact of having to close down for a long period). Catholic and Orthodox churches are structured differently and, so far, the hierarchies have been willing to comply with restrictions on gatherings. In Brooklyn, for example, the Catholic Church has ordered a halt to all Masses; a priest who decided to celebrate Mass would no doubt hear from the local bishop. Indeed, the only case of which I am aware in which a non-Evangelical church has brought a constitutional challenge to one of these bans involves a schismatic Catholic parish in New Jersey.

Second, Evangelical culture may be more skeptical of government action, and authority more generally, than Catholic or Orthodox culture. Evangelicals are much more the heirs of the free-church tradition. In addition, especially in recent years, some Evangelicals have come to see themselves as besieged by bureaucrats who wish them no good—in this, Evangelicals sometimes have been correct—and they may see little reason to defer when those bureaucrats tell them they must stop gathering, while shopping malls can remain open. Catholics and Orthodox, by contrast, with their long histories of interconnectedness with state authority, may be less inclined to challenge the state when it says restrictions are necessary in the interests of public health—though that is not always the case.

This situation may well change, of course. The reaction of Catholic bishops in Italy suggests that, as the state starts to loosen restrictions on other gatherings, the patience of non-Evangelical churches will also begin to wear thin. For the moment, though, there is this striking fact: churches’ opposition to state-ordered closings seems to turn, not so much on the particulars of worship itself, but on attitudes about hierarchy and government authority more generally.

Reader Discussion

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on May 12, 2020 at 08:34:32 am

It is unclear whether the SSPX is schismatic or in an irregular canonical status. I attended a beautiful Mass by an SSPX priest this weekend, utilizing Canon 844.2.

https://canonlawmadeeasy.com/2020/04/23/attend-sspx-church-parish-closed/

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Eric Morris
on May 12, 2020 at 14:41:10 pm

I think “irregular canonical status” describes the situation more accurately than “schismatic.” This was the subject of a recent blog posting by the popular Catholic blogger, Fr. Z: https://wdtprs.com/2020/04/ask-father-whats-the-truth-about-the-sspx/ (Quibbling over one word aside, Mark, all-in-all a very informative article.)

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Piero T.
on May 12, 2020 at 15:39:25 pm

Thank you for that link.

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Eric Morris
on May 12, 2020 at 12:29:03 pm

“...can the government restrict congregational worship in order to curb the coronavirus epidemic?”

There is a difference between restricting the number of persons attending a congregational worship within reason and prohibiting congregational worship.
For Catholics who believe in The Real Presence, let us Pray the Bishops, who believe in The Real Presence, will open the Catholic Churches soon, as it is possible to practice good hygiene, while practice social distancing, without limiting the number of persons who can fill the Church to 10. For many Parishes, this will require an additional number of Masses.

With Thanks and Gratitude to all Faithful Priests

Certainly, it is reasonable, when determining whether or not a law is neutral and generally applicable to the general population, to consider the difference in mortality rates between those members of the population that, if exposed to the virus, will have a low fatality rate, and the most vulnerable members of the population, such as the elderly, and those with compromised immune systems and serious health issues, for whom the fatality rate, is extremely high, because exposure to the virus is often deadly.

First and foremost, our efforts should be directed to the most vulnerable, as we Pray for a cure to end this pandemic.

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Nancy
on May 12, 2020 at 14:09:11 pm

Absolutely, it's about the hieararchy and being answerable. The Episcopal Diocese of Long Island (covering the counties of Brooklyn, Queens, Nassau and Suffolk) sent bishop's pastoral letters to all the clergy and lay people, from the time this first began. They read the news, implemented social distancing at the diocese, held conference calls and set policy for the clergy. Next, they worked towards creating resources for parishes to switch to on line services and offered guidance to those who could not be present for communion.

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Barbara James
on May 12, 2020 at 15:15:06 pm

With regard to Evangelicals, I am not one myself but perhaps I can speak for them. I grew up in a Mainline Protestant church, but I've lived in the Flyover Country long enough to have gone to school with and worked with Evangelicals, and married into a family where the tradition is strong.

Nancy writes of belief in the Real Presence in the Eucharist -- something which cannot be experienced over Facebook. Some of us believe in the power of the Holy Spirit, and the possibility of that presence working in and thru us today. And it is a power which is most often experienced where community is gathered, a palpable presence, a power which reflects and builds within the group. Like the presence in the Eucharist, this is something unlikely to work the same way over Zoom.

It is of course true as the author notes that Evangelical churches tend to have only minimal hierarchy, and accountability varies. And it's also true that many Evangelicals come from a slice of society who see themselves, 'the yeomanry', as oppressed by bureaucrats and skeptical of 'experts'. But this desire to gather together is not root a political protest. It is primarily a matter of real faith.

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cmcc_aus
on May 15, 2020 at 13:59:38 pm

Here is something interesting in regards to Religious Liberty and Orthodox Churches:
https://www.nytimes.com/2020/05/05/world/europe/russia-orthodox-church-coronavirus.html

It is also important to know the fatality rate for both Russia and The Ukraine are extremely low, so low, that Covid 19 in Russia, The Ukraine, and possibly even China, does not appear to fall under a “Pandemic” scenario:

https://www.google.com/search?q=covid+19+deaths+in+Ukraine&ie=UTF-8&oe=UTF-8&hl=en-us&client=safari

https://www.google.com/search?client=safari&hl=en-us&ei=I8--XqHUBJbctAaouKDICg&q=covid+19+deaths+in+Russia&oq=covid+19+deaths+in+Russia&gs_lcp=ChNtb2JpbGUtZ3dzLXdpei1zZXJwEAMyBQgAEMQCOgIIKToCCAA6BQgAEIMBOggIABAWEAoQHjoGCAAQFhAeUO8rWJJXYMFcaABwAHgAgAG5AYgB6gqSAQQxMS40mAEAoAEB&sclient=mobile-gws-wiz-serp

What if it turns out that these numbers are close to being accurate?

Could it be, that for Russia, The Ukraine, and possibly even China, the Flu vaccine they used protected them from Covid 19?

https://www.precisionvaccinations.com/adjuvant-azoximer-bromide-found-have-many-benefits-vaccine-efficiency

It appears that the adjuvant azoximer bromide has been found to have many benefits in vaccine efficiency. It would be interesting to know what the relationship of azoximer bromide is to hepcidin, and whether it is a complementary or antagonistic one.

https://arxiv.org/pdf/2003.12191.pdf

Which begs the question, was anyone aware, that the adjuvant azoximer bromide, placed in a flu vaccine, would provide some amount of protection for those who received the vaccination from a virus that “had a distance sequence similarity between the cysteine-rich cytoplasmic tail of its spike protein and the hepcidin protein that is found in humans and other vertebrates” and thus had the potential to create the perfect Hypoximia Storm in the elderly, those with compromised immunity, and those who because of illness, were more susceptible to being overcome by Covid 19.

Full disclosure, I do not have a medical degree, my degree is in Elementary Education, and I have a Certificate in Para Legal Studies. Our Family has a history of hemochromatosis, and I have read quite a bit about this disease.

I have no doubt that this is something that we must consider if we want to get to the crux of the matter because we desire to have both Liberty and a Happy Death.

Godspeed

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Nancy
on May 18, 2020 at 08:52:55 am

It's incredible how insane the misrepresentations of the Wuhan virus are in order to bring about the present malaise of groundless, corrupt control of people's lives. I wonder if the groundswell of opposition will rise to sufficient levels to overthrown the manifestly, grossly treasonous tyranny the Founders never would have tolerated (e.g. NY mass murderer Cuomo forcing the Wuhan virus infected into nursing homes followed by, surprise, mass fatalities), likely by force of arms, which is what Dems-media seem to be driving us to, being clearly far worse than what drove them to Revolution.

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Russ Davis
on May 24, 2020 at 09:57:58 am

Hopefully, the virus will not result in “a call to arms”, but certainly we should investigate to determine why it is that “the U.S. is “bearing the brutal brunt of the pandemic”, especially when you consider the fact that China has been working hard to undermine The Catholic Church for years for those who truly desire to follow The Christ, and not the counterfeit church that denies sin done in private is sin.

https://www.npr.org/2020/04/13/833073670/mapping-covid-19-millions-rely-on-online-tracker-of-cases-worldwide

Why is it that the U.S. is “bearing the brutal brunt of the pandemic”, and how do we know for certain the data is accurate given that some Chinese Nationalists are part of the atheist materialist overpopulation alarmist globalists who believe The True Church must be compromised in order to achieve their anti Christ atheist materialist overpopulation alarmists goals. “Oh what a tangled web...”, despite The Seamless garment, there is this common thread, that the atheist materialist overpopulation alarmist globalists, who deny The Sanctity of human life, and The Sanctity of The Sacrament Of Holy Matrimony, from The Beginning (Genesis), wish to tear.

https://www.statista.com/statistics/1093256/novel-coronavirus-2019ncov-deaths-worldwide-by-country

https://www.wsj.com/articles/how-a-johns-hopkins-professor-and-her-chinese-students-tracked-coronavirus-11589016603

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Nancy
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