Bans on religious gatherings cannot last indefinitely, warn law professors

CNA Staff, Apr 21, 2020 / 17:00 pm

Public religious services cannot be stopped "indefinitely" during the pandemic, especially when liquor stores are considered "essential" businesses, two law professors argued in the New York Times on Tuesday.

"In the early weeks of the crisis, it made sense to enforce sweeping closure rules against all public gatherings - no exceptions," wrote Michael McConnell, director of the Constitutional Law Center at the Stanford Law School, and Max Raskin, an adjunct professor of law at New York University, in a New York Times op-ed published on Thursday.

"But in the days ahead," the professors said, religious and political leaders will need to come to agreements that uphold public safety while allowing for the free exercise of religion to the maximum extent possible.

They went on to point out that other "important activities - from shopping in hardware stores to voting - manage to take place with appropriate safeguards against the spread of the disease," they said.

"Religious leaders and congregations will have to remember that the First Amendment is not an exemption from law applicable to all. And government officials must not forget that religious exercise is at the apex of our national values."

"Mass is not a football game," the professors wrote. "Worship cannot shelter in place indefinitely."

Due to the spread of the new coronavirus (COVID-19), religious services have been largely curtailed throughout the country along with other public gatherings. 

Catholic dioceses began cancelling public Masses in March, with the Archdiocese of Seattle the first to do so on March 11. On April 15, however, Las Cruces became the first diocese to announce it was resuming celebration of public Masses during the pandemic--just days after New Mexico's governor restricted "non-essential" gatherings to no more than five people. Bishop Peter Baldacchino of Las Cruces said that priests of the diocese still needed to observe the restrictions. 

Various state orders have limited the sizes of public gatherings in accordance with guidelines of the U.S. Centers for Disease Control (CDC), including at churches. The state of Virginia, for example, criminalized any gathering of 10 or more people-including at church.

However, some lawsuits and complaints have already been filed by churches against state and local governments for singling out churches, or applying public health restrictions to religious services but not similar public gatherings.

The Justice Department recently filed a statement-of-interest in support of Temple Baptist Church in Greenville, Mississippi in its case against the city. Greenville had barred "drive-in" religious services where attendees would listen to sermons in the church parking lot with car windows rolled up, but the church pointed out that a nearby SONIC drive-in fast-food restaurant was still allowed to operate during the pandemic.

The Justice Department argued that the city's ordinance was singling out religious groups while exempting restaurants.

Over Easter weekend, Kentucky's Governor Andy Beshear (D) threatened that state police would record the license plates of attendees of mass religious gatherings, for them to be contacted later by local health departments and ordered to self-quarantine for 14 days.

In Kansas, the group Alliance Defending Freedom filed for a temporary restraining order against the governor's 10-person restrictions on religious gatherings, saying that the state was restricting religious services but not other public accommodations. A district court judge in Kansas granted the restraining order, noting that the state had published "a long list of activities and facilities that were exempt from the prohibitions in the order."

It is not unprecedented for governments to place certain restrictions on religious activity during a public health emergency, McConnell and Raskin argued in their Times op-ed.

However, government cannot "single out" churches unfairly, particularly "when California and Colorado deem marijuana dispensaries essential businesses." Citizens should also be free to practice religion to the maximum extent possible while safeguarding public safety, they said.

As an example of this, they noted that New York City allows for hospital chaplains in the Archdiocese of New York to enter the rooms of COVID-19 patients to give them Communion, so long as they wear personal protective equipment (PPE).

In a recent interview with CNA, one hospital chaplain for the Archdiocese of New York cited a lack of available PPE as an obstacle to chaplains being able to safely administer Anointing of the Sick to patients. 

Another First Amendment expert, Professor Rick Garnett of Notre Dame, said that state restrictions of religious gatherings through stay-at-home orders and limits on the number of attendees were legitimate if certain conditions were met. 

"The issue is, is the government allowed to pursue this very important compelling interest in public health as a temporary measure to try and combat the spread of the disease?" Garnett told The Indiana Lawyer. "And I think the answer is yes, so long as it does so in a neutral way."