Law and Religion’s Swim in the Pool of Corona

The corona virus outbreak has taken the globe by storm and has had a major impact on the United States. Social distancing and quarantine orders have been enforced by governors and lately much debate has been centered on the treatment of people who seek to practice their faith during this time. Several states and dioceses have prohibited traditional mass attendance and live streaming of services has been encouraged. Some areas have allowed for drive-through confessions and other services. Legal issues and religious issues can be learned from this situation.

Legal

The regulations have not escaped conflict in a legal sense. During the earlier stages of the outbreak, Kentucky captivated national attention by the governor’s hardline stance against faith practice and enforcing closures. Penalties were to be enforced against people looking to attend services. Some argued they were excessive with recording license plates in church parking lots for those that intended to take part in religious gathering. The regulations drew lawsuits. A federal judge ruled that the governor must show “a compelling reason for using his authority to limit a citizen’s right to freely exercise something we value greatly — the right of every American to follow their conscience on matters related to religion.”[1] He did not meet that threshold. The Kentucky churches have since begun the process of reopening with adherence to social distancing regulations. In New York and New Jersey, among the hardest hit states due to the outbreak, the government made clear that churches and houses of worship were to not be open out of fear of the virus spread. In New York, however, a conflict emerged when a Hassidic Jewish community was attempting to have a funeral of a rabbi that had died. This drew the ire of Mayor Bill Di Blasio and the crowd that gathered was dispersed by authorities who were in violation of the New York social distancing ordinances.

Recently, the U.S. Supreme Court, in a 5-4 breakdown led by Chief Justice John Roberts joined by Justices Kagan, Sotomayor, Breyer and Ginsburg recently rejected a challenge to California’s orders regulating worship practice amid the virus shutdown. The petitioners had sought to enjoin the regulations which strictly enforced attendance at places of worship to 25% of building capacity or a maximum of 100 people. Roberts focused his opinion on emphasizing the national virus crisis and did not want the court actively making decisions that he believed were best left to the local state politicians. He found no violation of the Free Exercise Clause and argued that grocery stores, banks and laundromats that were exempt do not hold many people for an extended period of time like a church gathering.

Justice Kavanaugh issued a scathing dissent.[2] He was joined by Justice Thomas and Justice Gorsuch and argued that the church should be evaluated the same under the law as businesses such as factories, restaurants, retail stores, pharmacies, salons, cannabis dispensaries and shopping malls that are not subject to the 25 percent cap on attendance. He notes that California has a compelling government interest to consider the public health with its policy but the policy is not narrowly tailored to achieve that interest. The Pentecostal Church at issue in this matter had offered to comply with the regulations these other entities were to follow with regard to social distancing guidelines but the state prohibited it. Justice Kavanaugh did not agree with the state’s handling of the policy there and also encouraged that the occupancy rules among other regulations be applied across the board to the other entities if this was to be the state position.

In terms of the legal aspects of the virus outbreak, there were clear collisions with religious interests. State executive authority by governors was put to the test when enforcing the restrictions on faithful gatherings. This has established a strong precedent that government will take an aggressive stance even if it means diminishing religious interests in a time of national crisis. While there was reasonable concern for the public health, once could argue that the law was not applied fairly throughout the course of the outbreak. The outbreak is now winding down and several states have begun to schedule phases of reopening, but one must wonder whether the extended actions the states have taken were in full adherence to the Constitution.

Chief Justice Roberts made a strong point on the principle that the Court should not be relied upon to interfere with local state management of public health issues, however one could argue that Justice Kavanaugh had the better argument. At what point does the state’s regulation of its citizens infringe and overburden their enumerated religious rights guaranteed to them by the U.S. Constitution? It is conceivable that religion was targeted in a sense when other entities were allowed to be open to full or in California’s case fuller capacity despite the health risks they also posed. California was a mild case and at the very least had allowed for some attendance. Other states did not even allow that position. If a case was brought from New York or New Jersey where the same level of leniency was not shown as in California, one must wonder if the Chief Justice would have the same approach? While regulation is necessary in a time of crisis, there did not seem to be any middle-ground that was worked towards to accommodate the religious interests of citizens from a legal standpoint.

The George Floyd protests have further complicated the matter when considering state relations with citizens. As a practical standpoint, the mayors and governors have allowed protests that have seen hundreds and thousands in close proximity gather on the streets to exercise their Constitutional rights yet churches remain closed. One could argue that the state is favoring freedom of assembly over freedom of religion. Decisions should have been made that if the local authorities were to go in one direction with rule-making, the other areas would also need to be amended to reflect this concept under the law and offer equal protection. Social distancing guidelines have not been applied equally as we grip with this new national crisis. While some of these issues may be rendered moot in a few weeks when the states further advance in their reopening phases, it does not mean we should forget the actions the government has taken during this time of crisis. This may present an opportunity for legislatures to consider laws in the future that better protect the interests and rights of the citizenry while maintaining an acceptable respect for safety of the populace. Presently, the power of the executive in these various states can be called into question and perhaps further dialogue and discourse can be had so as to better balance the legal and public health issues that may face us in the future.

Religion

We have provided some background as to some of the legal issues the nation has confronted when considering the role of religion in the pandemic, now we will assess the religious view. In response to the emerging outbreak, churches began to take extreme measures to protect their congregations and fellow citizens with obedience to social distancing guidelines articulated by the government. Churches throughout the nation had used innovative techniques such as streaming services as a means to keep their religious communities connected during this difficult time. These means justly served a purpose to take into account the threat that the virus posed, but there were missed opportunities for more innovative means to connect the community.

For example, the deadliest part of the outbreak began to occur during the Lenten season in the Christian tradition, eventually also consuming the Easter season. In response, in the areas of the Northeast especially, many churches upon edict from the bishops and the governors with few exceptions were not permitted to keep their churches open for even individual quiet prayer during the holiest time of the Christian liturgical calendar. While some offered drive-through confessions outside the windows of the churches, these were few and far between and served as the exception and not the rule. Some churches conducted outdoor services, but this was also not a regular occurrence and failed to be meaningfully encouraged. Surely, the bishops in the various areas were in communication with the government and most specifically the governor’s offices with enforcing their diocesan regulations, but it has appeared that no middle ground was even attempted to be reached that would have reflected the religious and state interests. Some areas could have further considered the outdoor service and people staying in their vehicles or having attendance capped with perhaps more services that could be offered albeit during a shorter time-span. There was also plenty of opportunity to enforce reasonable church policy such as wearing masks and sitting 6 feet apart if you were to attend a service. While all of these situations were not ideal given the faithful practice and traditions of Christians among many other religious groups, it would have been a viable compromise. Even if all of the demands were not met a genuine effort to work out the issues should have taken place.

Full closures with limited exceptions have been detrimental to the community and congregations nationwide. During a time of economic downturn with the virus outbreak and lack of maintaining meaningful connections with others, people of all faiths needed their organized religious communities to be a viable presence for them. A streaming service while a nice concept is not the same as taking the time to reflect in a house of worship even if it is for a short period of time. One could argue that as religious vibrancy weakens, so does the morality of society.

It has been reported that the rate of suicides and depression have risen. From the most recent example with the protests, tensions in communities are running very high. If a society has been denied a central part of its faith practice, one must consider- what type of society will we have left? How long will the Corona hangover last?

While it is hard to have all the answers with all the interests and concerns at play, a stronger compromising framework between the faithful and their government, bridged by just and reasonable law may be a sobering recipe to heal this nation.


[1] https://abcnews.go.com/US/judge-rules-kentucky-churches-hold-person-services/story?id=70599636

[2]https://www.natlawreview.com/article/us-supreme-court-upholds-california-s-covid-19-restrictions-religious-worship

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