Former judge: coronavirus restrictions have a place, but religion is 'essential'

Denver Newsroom, May 15, 2020 / 10:02 am

Public health orders to limit the spread of the new coronavirus raise important questions about the U.S. Constitution and religious freedom, and Stanford Law School professor Michael McConnell has provided some guidance on these topics.

"It is none of the state's business to decide that religious worship is not important," McConnell said to an online gathering May 13. "It is the state's business to decide whether particular forms that religious worship might take may be dangerous to public health."

"It's the government's business to decide what is healthy. It is the church's business to decide what is important," he said in summary.

McConnell, a former federal judge on the U.S. 10th Circuit Court of Appeals, joined Archbishop Salvatore Cordileone of San Francisco as the main speakers for a briefing titled "The Church, the State and the Pandemic." The event was moderated by Maggie Gallagher, executive director of the San Francisco-based Benedict XVI Institute for Sacred Music and Divine Worship.

The former judge said state and local governments have significant authority to limit religious gatherings in an epidemic, but they must limit religious activities no more strictly than comparable activities.

"We've had pandemics before but never lock downs to this extent," McConnell reflected. "We've never what amounts to a shuttering of synagogues, churches and mosques across the spectrum." While there are some relevant principles of constitutional law, "there's no rule book out there," he said. These principles are not "cut and dry" but rather "a framework for debate and argumentation and decision-making."

"Despite our constitutional promise of free exercise of religion and non-establishment, which we sometimes describe as the separation of church and state, there is no absolute separation," McConnell continued. "The state has significant regulatory authority even as it touches religious activity, and this is especially true in a time of emergency like a pandemic."

The leading precedent is over a century old: the 1905 U.S. Supreme Court decision Jacobson vs. Massachusetts, when the state of Massachusetts required citizens to be vaccinated during a smallpox epidemic.

Despite objections, including religious objections, "the Supreme court ruled that the state did have the constitutional authority to order everyone to get their smallpox vaccination," McConnell said. At the same time, he noted, this decision was reached "well before the explosion of civil liberties litigation in the Supreme Court."

He doubted the court would repeat its previous decision in the same way given current standards. At the same time, every lower court decision about objections to the coronavirus limits in recent weeks has cited this precedent.

For McConnell, the bottom line is that "when faced with a society-threatening epidemic, the state may implement measures that curtail constitutional rights, so long as the measures have some real or substantial relation to the public health crisis," and are "not beyond all question a violation of rights secured by fundamental law."

"The church is subject to the regulatory health authority of the state," he said. "It is not absolute, but it is a very substantial authority."

At the same time, the First Amendment of the U.S. Constitution provides significant guidance amid epidemic closures. In McConnell's view, and the view of several federal courts, the First Amendment means "religious worship is essential" and it is "one of the most highly protected of all constitutional rights."

"Insofar as these orders denigrate the ability to practice religion, because of the assumption that religion is 'less essential' than, say, hardware stores, I think that is impermissible, unconstitutional and will be struck down by most courts," he said. "On the other hand, if the state is making an assessment on the basis of public health risk, then I think it is another story."

The state has the right to impose what the Supreme Court calls "neutral laws of general applicability," McConnell said. Prohibitions on large gatherings of people, or requirements that they meet only with certain safety protocols, often tend to affect religious and non-church activity equally.

However, questions of double standards arise when governors and other public officials exempt broad categories of other activity on the grounds they are "essential" or "life-sustaining," concepts that McConnell said introduce an element of "subjectivity." Kentucky's statewide orders, recently struck down in federal court, did not exempt churches from closure but did allow "life-sustaining" establishments to open, provided they followed social distancing and other hygiene regulations. These establishments included hardware stores, laundromats, dry cleaners, law offices, and liquor stores.

Churches can make the case to the courts that they are more like these institutions than unlike, and therefore should open if they follow similar precautions.

Archbishop Cordileone similarly saw a problem with the government "telling the Church what is essential," when only the Church has that authority. He also saw a problem in the government deciding that anyone's services are "essential," given the subjectivity of the concept.

"The role of the government is to say what is safe, and to say you have to abide by these safety standards," the archbishop told the briefing. "If you can abide by these safety standards, you can continue to function. If you can't, then you wouldn't be able to."

McConnell worried that some government officials have a deep misunderstanding of religion.

"The real problem here, which is quite disturbing from a constitutional point of view, is that many governors have taken the view that religious activity may be completely banned because it is essentially voluntary," McConnell said. "It is treated like you might be going to a movie."

While limits on churches did not appear unusually burdensome in initial weeks of the epidemic, precisely because so many similar activities were barred, McConnell said this will become an issue as states gradually exempt more and more activities in an effort to restore social and economic life. The difficulty of maintaining limits on peoples' activities over the long term will also show the need for better accommodation of constitutional rights such as religious exercise.

Given that the state can decide the question of whether parishioners gathered for worship are more dangerous from a public health perspective than a store's customers gathered to purchase goods, McConnell said he would still be sceptical. He would seek to confirm that public health officials made that judgement and would try to confirm that they judged rightly.

"I'd also like to know why we are generalizing to all religious assemblies," he said.

(Story continues below)

"There's a big difference between 1,000 people gathered in the pews packed together sitting next to each other, versus a church that has carefully demarcated 6-by-6-feet areas in which a family can gather only there and not be close to any others, or, for example, holding outdoor services under appropriate circumstances."

Any generalization that all religious services are conducted in dangerous ways suggests a significant lack of interest in religious freedom, McConnell said.

Cordileone, citing interactions with government leaders, suggested public officials "don't understand what we can do to keep people safe." Church leaders need to reach out to officials and inform them what is possible.

"When they think of a worship service they think of something like a megachurch, 1,000 to 2,000 people jammed in a crowded area," he said. "They don't think that we can have distance in our churches, or that we can have outdoor services."

Cordileone cited suggestions from the Thomistic Institute of the Dominican House of Studies, which published guidance on coronavirus and churches composed by a working group of theologians, liturgists, and health care experts.

"It's a very thorough and detailed document about what we can do to open up for Mass," Cordileone said.

The California bishops sent a letter to Gov. Gavin Newsom with the Thomistic Institute document attached. A few days later the governor "spoke positively about worship and the necessity of faith … more favorable to churches opening up for worship," said Cordileone.

"It's a matter of helping government officials realize that these sort of safety steps can keep our people safe when they are gathering for a worship service," the archbishop said.

Cordileone and McConnell took some questions from the briefing audience.

CNA asked whether churches that fail to follow recommended or required precautions could face civil liability.

"It's a great unanswered question. A very important question, with enormous practical implications," McConnell said. "If there is no protection against liability or even lawsuits, which are extremely costly to defend even if you ultimately prevail, opening up is going to be a lot slower in this country."

The question applies to employers, institutions, stores, universities and others. McConnell said he could "easily" imagine governments easing up on orders to close, but institutions being slow to open "for fear that if somebody catches the virus and it can trace it to them, they could be bankrupted."

In response to a question about chaplains' access to someone dying with the coronavirus, Cordileone said he hasn't heard of a case yet where a priest was unable to get in to anoint someone who was at the point of death. However, there have been times when a lack of protective equipment prevented priests from visiting someone in a less serious condition.

McConnell, citing informal discussions, said, "a number of jurisdictions that have otherwise been pretty unrelenting in their prohibitions of religious worship have been more accommodating with respect to the visitation of the sick in the hospital from their priests."

"I don't know if that's legally required but it just seems to be so obviously humane that I hope it's true," he said.

McConnell said that the courts' current approach to religious freedom dates back only to the 1990s. Previously, free exercise of religion was treated as a specially protected constitutional right that the government could infringe only with a compelling interest and in the least restrictive way possible.

Such protections "would require a fairly sensitive examination of what exactly is being prohibited and what are the alternative ways in which public health can be protected," McConnell said. "That, I think, would be a more religion-friendly regime."

About 20 states and Congress have enacted Religious Freedom Restoration Acts which restore the previous standard to state and federal law.