Coronavirus Shutdowns Treat Golf Courses Better Than Churches

(Bloomberg Opinion) — We are entering a period of holy observance. For Jews, it’s Passover. For Muslims, we are two weeks from the start of Ramadan. For most Christians, this is Easter weekend, known as the Triduum. For Orthodox Christians, Easter is next weekend. All are seasons when believers traditionally gather together, in houses of worship and in private homes.

Enter the coronavirus; and the lockdowns. Some governors have deemed religious services essential. Some haven’t. The flashpoints have made news. The pastor of a Florida megachurch was arrested after holding large Sunday services. (Authorities credited an “anonymous tip,” as if they had broken up a drug ring.) Baltimore police officers arrived at a church in the middle of the sermon and ordered everyone out.

As a longtime scholar of religious freedom, for me the question is whether the First Amendment protects the right to worship in defiance of orders to shelter in place.

Let’s start at the beginning. To prohibit a religious group to meet for worship, whatever the grounds, is plainly an infringement on its freedom.  As the federal courts often put the point, free exercise of religion is substantially burdened whenever the government “forces adherents of a religion to refrain from religiously motivated conduct.” Attendance at service is the quintessential example of conduct stemming from religious motivation. Any burden upon it faces the closest constitutional scrutiny, and must be sufficiently justified.

To be sure, public health has long been accepted as a justification for interfering with religious freedom. That’s why there’s so much controversy over whether religious believers should have the right to refuse vaccination — and why, even before smallpox vaccination was compulsory, the courts upheld laws that barred unvaccinated children from attending public school over the objections of religious dissenters. Similarly, a church can be ordered on public health grounds to install a proper septic system. Animals deemed sacred can be forced into quarantine if they’re sick.

True, as the Supreme Court has warned, the state’s public health justification for restricting worship services is unconstitutional when it’s no more than a smokescreen for discrimination against a particular religious group. And we mustn’t forget the nation’s sordid history of using public health claims in exactly that way. In the battle against smallpox, for example, authorities often responded to local outbreaks by immediately shutting down churches — but not all churches. Only the black churches were prohibited from meeting, because smallpox was viewed for decades as a “Negro disease.”

In the case of the coronavirus shutdowns, nobody supposes that houses of worship are being singled out. On the other hand, the cases that have upheld public health limits on religious liberty have all involved rules that apply in the same way to everybody else. And that’s where the effort to regulate or prohibit corporate worship during the present emergency might well raise constitutional problems.

The difficulty is that the states haven’t actually banned all gatherings of a specified size. They’ve banned all gatherings that aren’t explicitly exempt from the sheltering orders. Most states have exempted liquor stores and gun shops and hardware stores. Many have exempted golf courses. 

One might respond that unlike houses of worship, these are spaces in which social distancing is easily practiced. The trouble is that states have also classified as essential places where people necessarily gather in close quarters. Factories that make certain equipment are allowed to operate.  So are the warehouses where Amazon and Walmart load their trucks. In many jurisdictions, child care centers are still open, notwithstanding that young children have long been understood to be a major source for spreading diseases.

These exemptions constitute an admission that some gatherings are necessary. And once that admission is made, it’s easy to argue that religious gatherings are also necessary — to help people strengthen each other’s faith, and thus their courage and even sanity in the face of an enemy before which the government orders us to cower.

Thus we see the difficulty. It’s one thing to enforce against houses of worship a public health law that says no gatherings of any kind are allowed. Here the shutdown of religious spaces would be pursuant to an emergency decree equally applicable to everyone else.