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COMMENTARY | State and local shutdown orders shouldn’t exempt religious gatherings, and those communities should comply.
What is a church to do in the time of the coronavirus pandemic? For many religious traditions, gathering for worship is not just a friendly suggestion. Some Jewish practices require groups of 10. Muslims consider Friday’s congregational prayer one of their most important. Catholics celebrate the Eucharist together during Mass. As the German Lutheran theologian Dietrich Bonhoeffer wrote in 1930, “A Christian who stays away from the assembly is a contradiction in terms.”
And yet, for the time being at least, mass gatherings are fueling a public-health crisis, and many state and local authorities are banning gatherings of 50 or more people. Can the government, in a country where freedom of religion and freedom of assembly are sacrosanct, close churches? As a matter of public health, churches should follow these prohibitions. But as a legal matter, must they? The short answer is that in this case, government restrictions extending to churches are almost certainly legal. What’s interesting is why.
The precise legal analysis is complicated by the fractured landscape surrounding the free exercise of religion. The confusion began with a 1990 decision, Employment Division v. Smith, that dramatically lowered the level of constitutional protections for free-exercise claims, in a case involving Native American spiritualists seeking an exemption from a law banning the use of peyote. Subsequent legislative and judicial responses to that decision at the federal and state levels created a patchwork landscape for adjudicating free-exercise claims, introducing different standards of review depending on the jurisdiction or nature of the claim. Today, if a church challenged a shutdown order from the federal government, the Religious Freedom Restoration Act (RFRA) would require that courts review the order with the highest level of judicial scrutiny. However, if the challenged shutdown order came from a state or local government, RFRA would not apply, and the claim would depend on state constitutional and legislative protections, and their interpretations by state courts. (A later law amending RFRA, the Religious Land Use and Institutionalized Persons Act, would possibly, though not at all certainly, increase the level of scrutiny applied to state and local restrictions.)
Let’s assume for the sake of argument that a church challenging a shutdown order would receive the highest level of legal protection, a test referred to by courts as “strict scrutiny.” Under this test, the government would need to articulate a compelling interest, and its directive would need to be narrowly tailored and executed in the least restrictive means toward accomplishing its interest. That’s a very high standard, and one that is not usually satisfied. But the government is likely to meet it here. The widespread protection of human life is clearly a compelling government interest, and in the specific circumstances of this crisis, given what we know now of the virus, a shutdown order, especially one aimed at gatherings over a certain size, is both narrowly tailored and the least restrictive means.
All shutdown orders include exemptions for hospitals and certain essential government services, some of which will necessarily require large groups of people to congregate. This introduces a strange irony to the analysis. In most free-exercise cases, when the government grants a nonreligious exemption to a generally applicable law, that exemption weakens the government’s claim to a compelling interest. For example, in a well-known opinion from his time on the Third Circuit, then-Judge Samuel Alito concluded that a single nonreligious exemption to a police-department policy prohibiting beards on officers (the nonreligious exemption was for medical conditions) required the department to grant a religious exemption. After all, if the law were really so important that it required stifling a fundamental right to the free exercise of religion, then how could the government justify other exemptions?
The question of how many and what kinds of nonreligious exemptions will necessitate a religious exemption is much debated among courts and scholars, but that debate takes an odd turn in this context. Social distancing presents a kind of collective-action problem: It’s only going to work if most people decide to follow along, even if their own individual preferences would have them do otherwise. But of course, hospital work and other essential functions must carry on. The strange outcome of this is that the necessary exceptions actually strengthen the compelling nature of the government’s interest in everybody else’s compliance. Houses of worship must practice social distancing to ensure that room remains for the few necessary exceptions. As long as the government can justify its exceptions, its legal position is strengthened rather than weakened by including them. (It would be a different story if a shutdown order exempted restaurants but not churches—in that case, the nonreligious exemptions would not seem as justified.)
Why then, do some state and local shutdown orders appear to exempt churches? One reason could be bad legal advice: The legal landscape is complicated, and some decision makers might be relying on general notions of “religious liberty” or “the separation of church and state” that do not accurately reflect the law. Another reason is political: Churches and houses of worship are important anchor institutions in many communities, especially in times of humanitarian crisis. Civic leaders may be trying to show goodwill and avoid applying a heavy hand, particularly knowing that they will need to partner effectively with religious institutions in the coming weeks and months.
The good news is that every major religious tradition has theological resources to adjust to challenging and unforeseeable circumstances. For thousands of years, soldiers, missionaries, and humanitarian-relief workers have had to improvise their worship gatherings in extraordinary times. We have already seen major religious bodies, including the Roman Catholic Church and the Church of Jesus Christ of Latter-day Saints, impose regional or global restrictions on their worship. The greater challenge lies with less hierarchical churches and houses of worship that do not answer to higher religious authorities, but will instead make decisions based on their own discernment and expertise. Here, churches not formally subject to shutdown orders should err on the side of caution and choose to suspend their services. And they should absolutely comply with orders that do not exempt them, as they are required to do.
The public-health evidence makes clear that houses of worship should limit their gatherings, whether mandated or simply encouraged by government officials. And they should do so in willing partnership rather than bitter acquiescence. Many religious traditions have some version of love of neighbor and caring for the least of these as moral imperatives. As the Christian author Andy Crouch recently advised, one of the best ways to demonstrate that love now is by suspending physical gatherings, including worship services—for the sake of our neighbors.
John Inazu is a professor of law and religion at Washington University in St. Louis and the author of Confident Pluralism: Surviving and Thriving Through Deep Difference.
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