Law & Liberty contributors offer some thoughts for the graduating class of 2020.
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.