Our COVID-19 crisis has been escalating quickly and with it, the potential collision with the First Amendment over issues involving religious liberty and the right of assembly.
Last month, we thought that stopping the spread of the virus was a matter of washing our hands thoroughly and avoiding touching our faces.
Now, we’re unable to assemble in groups and many of us are confined to our homes.
Three weeks ago, President Trump dreamed of packed churches on Easter Sunday. At the time, many medical experts found that overly optimistic (or as one put it, “not rooted in reality.”) Now, with the U.S. approaching 430,000 cases and the death toll nearing 15,000, it seems like an impossibility. Or at least, it should.
But as recently as this past Saturday, President Trump was floating the possibility of making a special allowance for churches to have Easter services. He’s not the only politician to contemplate loosening the reins for the holidays. South Carolina Gov. Henry McMaster recently issued a stay-at-home order but still recommended that Easter services continue. Kansas, Michigan and New Mexico currently exempt worship services from their orders prohibiting gatherings in large groups.
The fact that some government officials think this is worth the risk reflects the push back we’ve seen from some religious leaders ever since state and local governments started prohibiting large gatherings and shutting down non-essential businesses, including churches, synagogues and other houses of worship. For example, Louisiana pastor Tony Spell has continued to lead in-person services, calling the closure of his Life Tabernacle Church religious persecution and questioning why retailers were deemed essential but churches not. “We hold our religious rights dear and we are going to assemble no matter what someone says,” Spell said in an interview.
But while Spell is framing the state’s order as a violation of his First Amendment rights, that’s not actually the case. Along with being rooted in the public’s best interest, it’s also important to note that the orders restricting the size of gatherings and shutting down non-essential businesses are, at this time, the least restrictive options available to protect public health. In short, this means they’re almost certainly constitutional — but granting an exemption to one of these orders for houses of worship may not be.
The First Amendment’s Establishment Clause requires that the government treat secular and religious organizations equally, without favoring one over the other. As Rachel Laser, president and chief executive officer of Americans United for Separation of Church and State, put it, “[W]hen health experts and public officials determine that large gatherings must be cancelled for the public good, we must follow their lead and apply these guidelines to secular and religious gatherings equally. The Constitution not only permits it, but demands it. Such restrictions do not violate religious freedom; they ensure religious freedom is not misused in ways that risk people’s lives.”
This week I had the pleasure of moderating a (virtual) Freedom Forum panel on religious freedom in the time of COVID-19 and discussing these issues and more with legal experts Richard Foltin and Maggie Garrett, atheist thought leader Mandisa Thomas and seminary-trained religious liberty advocate Charles Watson Jr. One question from the audience that stood out to me was from an attendee who wondered if there was more to the conversation than just religious freedom versus public health. Did these two values have to be on opposing sides? Weren’t there things that religious communities could proactively do in service of public health — starting with asking their members to stay at home, of course, but going beyond that to encourage them to volunteer their time and monetary resources, donate blood and generally provide assistance to the most vulnerable members of our population? You can find the full webinar on the Freedom Forum’s YouTube channel.
It was a reminder to me of the crucial charitable function that religious organizations have often served in crisis situations. As Baylor University professors Byron Johnson and Thomas Kidd point out, “When it comes to confronting contemporary social turmoil, communities of faith have always played an important role in working toward solutions.” Many religious organizations are doing this right now. Leaders from the National Association of Evangelicals and Christianity Today published a joint statement reminding people that “God cannot be consigned to a place.” They added: “It is one thing to risk your own life in order to worship together in person; it is quite another to risk the lives of countless others, when so many churches are finding creative and compelling ways to carry on in worship and community from a distance.” The Church of Jesus Christ of Latter Day Saints suspended all services worldwide on March 12 (a lifetime ago in the COVID-19 timeline). Houses of worship have been providing crucial material and social support to those who suddenly find themselves in need of it.
As the pandemic continues, my hope is that these narratives become more common and stories of church leaders risking the lives of their congregants seem like a distant memory.