A right to gather?: Balancing health risks and religious liberties during the COVID-19 crisis

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“There are manifold restraints to which every person is necessarily subject for the common good,” wrote Justice John Marshall Harlan I in Jacobson v. Massachusetts (1905), upholding a Massachusetts law requiring smallpox vaccinations over the objection of a pastor’s right to a religious exemption.

Fast-forward to 2020, and an even more significant clash rages between governments’ police powers to ensure health and safety and individual religious liberty—all against the backdrop of the deadly COVID-19 pandemic.

“At no time in the history of this nation has the government (federal or state) ever attempted to impose such onerous restrictions on the rights of religious individuals as we are seeing play out in response to the COVID-19 pandemic,” writes John Whitehead, founder and president of the Charlottesville, Virginia-based civil liberties group the Rutherford Institute.

Government officials’ actions limiting public gatherings to stem the spread of the deadly pandemic caused by the contagious COVID-19 have led to a spate of lawsuits filed by churches, religious liberty groups and others in California, Kansas, Kentucky, Mississippi, South Carolina, Tennessee and Virginia—many over restrictions on religious liberty that began around Easter.

Competing rights

Government officials assert a compelling interest in protecting health and life. “There is a compelling interest in the protection of live human beings from dying a preventable death,” says Marci Hamilton, the Robert A. Fox Leadership Program Professor of Practice at the University of Pennsylvania.

“We know that social distancing right now is the best and safest means of saving humans from dying or suffering from COVID-19. The problem is not simply that they might infect each other but also that all of them would still need to go to the store or other essential businesses. Life is a compelling interest.”

On the other hand, churches and individuals have a fundamental right to freely practice their religious faith.

“Churches have a fundamental constitutional right to free exercise and free assembly,” says Luke Goodrich, vice president of the Beckett Fund for Religious Liberty. “At the same time, those rights are not absolute. Just as with free speech, you can’t say anything you want, with freedom of religion, you can’t spread a virus to others.”

Goodrich acknowledges that in a pandemic, the government had a very strong argument for limiting large gatherings of people.

“But the government must do so uniformly and can’t target or single out religious gatherings,” he says.

“If you can drive through a McDonald’s and get a hamburger, you should be able to drive through and hear a preacher,” Whitehead says. “I know it is a difficult time but religious liberty rights must be protected and respected.”

Hamilton argues that the right to freely practice one’s religion must be tempered with a heavy dose of common sense and an awareness of the common good.

“The lawsuits are evidence of the continuing corrupting influence of the extreme religious liberty movement,” she says. “Religious litigators seem to have abandoned altogether the concept of an obligation to the greater public good. Gatherings, including religious gatherings, are potentially deadly at this time. For religious leaders or believers to be demanding special exceptions when the harm to others is so severe is evidence that they have forgotten that they are a nonprofit organization because it is presumed they are beneficial to the public good.  They have obligations to the common good.”  

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Differing results

Court decisions have reached spectrum of conclusions. In one of the earliest decisions, a federal district court in Kentucky ruled in On Fire Christian Center Inc. v. Fischer, a federal district court in Kentucky ruled that a church group was likely to prevail on its First Amendment lawsuit over the banning of drive-in religious services during Easter.

On Fire Christian Center sued after Louisville Mayor Greg Fischer banned religious services before Easter, including drive-through services.

U.S. District Judge Justin R. Walker Jr. sided with the church and granted a temporary restraining order. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” he wrote. Walker emphasized that the mayor seemed to be targeting drive-through religious services, while the city allowed drive-through liquor sales.

Walker reasoned that the city had a compelling interest in protecting public health but that the city’s actions “violate the free exercise beyond all question because they are not even close to being narrowly tailored to advance that interest.”

The judge also reasoned the city’s actions likely violated the free exercise clause of the First Amendment as well as Kentucky’s Religious Freedom Restoration Act, a state law that provides religious liberty protections. After the ruling, the parties settled and On Fire was allowed to have drive-in services.

In contrast, a federal district court in New Mexico rejected a church’s challenge to the governor’s Emergency Order in Legacy Church v. Kunkel. Gov. Michelle Lujan Grisham issued a series of emergency orders, including one on April 11, 2020, that broadly prohibited mass gatherings of more than five people. The order stated: “Churches, synagogues, mosques, and other houses of worship shall adhere to this restriction, but nothing in this order is intended to preclude these faith-based institutions from holding services through audiovisual means.”

U.S. District Judge James Browning noted that “significant factual differences exist between the Louisville mayor’s order and the April 11 order,” including the fact that the New Mexico’s governor’s order “does not permit secular activities analogous to mass gatherings at religious services.”

Browning reasoned that the April 11 order was narrowly tailored because it “does not restrict religious activity beyond what is necessary to achieve [the] compelling interest” and it allows churches “to broadcast their services to followers via the internet and over television.”

Churches have insisted they qualified as essential businesses during the stay at home orders, but as communities slowly open back up, it remains to be seen how jurisdictions will handle people congregating to worship.

Courts even disagree on such a fundamental question as to whether the pandemic creates an emergency exception to the Constitution. U.S. District Judge Jesus G. Bernal of the Central District of California denied a request for a temporary restraining order by California Governor Gavin Newsom and leaders in Riverside and San Bernardino Counties limiting public gatherings. In his ruling, the judge wrote: “During an emergency, traditional constitutional scrutiny does not apply” in Gish v. Newsom.

In stark contrast, U.S. District Judge James C. Dever III granted temporary relief from a North Carolina executive order limiting religious gatherings of more than 10 persons to be held outdoors, writing: “There is no pandemic exception to the Constitution” in Berean Baptist Church v. Cooper.

Part of the controversy stems from government officials allowing the opening of so-called essential businesses. Churches have seized upon this fact to argue they also qualify as essential during this difficult time. President Donald Trump weighed in on May 22, calling houses of worships “essential.”

Trump reasoned that if liquor stores and abortion clinics are essential, so are churches.

“At a minimum, we should all agree that a place of worship—church, synagogue, mosque, temple, etc.—should be treated no worse than a liquor store or other businesses,” says Mike Berry, deputy general counsel for First Liberty Institute, which has filed lawsuits challenging prohibitions on drive-in church services in Kentucky and Mississippi.

“When government entities are determining which functions are ‘essential,’ it is important to remember that our Bill of Rights already makes clear that the free exercise of religion is ‘essential.’”

Berry also argues that exigent or emergency circumstances, such as a pandemic, are not a new phenomenon and were contemplated by the Constitution’s framers.

“To be sure, there is a compelling government interest in slowing the spread of disease, or defending the nation in time of war,” Berry admits. “But like any compelling government interest, it must be narrowly tailored and no more burdensome than absolutely necessary when religious freedom is at stake.”

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