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Coronavirus Shutdowns Treat Golf Courses Better Than Churches

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Stephen L. Carter
·6 min read
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(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.

But when a governor says, in effect, “I have made a list of permitted gatherings and you’re not on it” — we have an entirely different case. Now the state is in the business of deciding which activities are important enough to permit people to congregate and which are not. At that point, a rule decreeing that an Amazon warehouse is essential and a house of worship isn’t will survive First Amendment scrutiny only if narrowly tailored to fulfill a compelling interest.

That’s a tough test to meet.

I’m not saying that should a case against be litigated, the religionists would win. My point is that their arguments aren’t absurd and the answer isn’t easy. You might think that whatever goes on inside houses of worship is a lot of nonsense, and you’re entitled to your view. But it’s not a view on which the Constitution allows the government to base regulation.

On the other hand, even if you think houses of worship must be free to stay open if they choose, the existence of a right doesn’t mean one has to exercise it. Believers should remember that all those who stream in and out of a church or other sacred space will be exchanging whatever their breaths may carry, first with each other, and later with anyone with whom they come into contact. A prudent religious leader might reasonably decide that love of neighbor counsels restraint.

Most religious communities have found ways to adapt, to follow God’s commands while taking precautions. Online services are commonplace. Some churches are celebrating drive-through Communion. Some Catholic priests are hearing drive-in confessions. Rabbis have warned against kissing the mezuzot. The imam of a Philadelphia mosque that has remained open for mandated prayers told the New Yorker that he nevertheless uses sanitizer after shaking hands.

As for me, I’ll be attending services online during the Triduum. If you’re a believer of whatever faith, you’ll worship as you feel God calling you. Just remember that even if the Constitution gives you the right to gather, you can choose not to exercise it. Consider instead the possibility that God wants you to keep yourself and those close to you — and strangers whose names you’ll never know — safe from the storm.

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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