Constitutional Law

When Can The Government Put The Brakes On Religious Services Without Violating The Constitution?

If the virus continues to spread, our right to not be placed on a ventilator at a hospital ICU comes first.

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Covid-19 coronavirus

Covid-19 (photo by David Lat)

Some time ago, someone I know posted a picture of himself at a pro-Trump rally. As with many of these events, most didn’t wear masks, and there was no distancing. Now, as far as I’m concerned, whatever people do is their own business, and they can live with the consequences. But what made his case special was that he was a nurse and should have known better. So I asked him why he was attending this rally knowing this could potentially be a health risk?

His response was that he did not believe the COVID-19 hype and that because of his faith, he is covered by the blood of Jesus.

For many people, including some Christians, the above response is cringeworthy and even dangerous during a pandemic. And this, along with the recent surge in cases and hospitalizations, is why some are calling for strict restrictions on religious gatherings or even a temporary ban. But the freedom to practice the religion of our choosing is expressly stated in the Constitution and many guard this right with the same passion that others would when defending the right to have an abortion. But why should religious organizations be treated more strictly than others?

This is partly because some of the earliest coronavirus outbreaks were traced to religious gatherings. Attendees can spread the virus by singing hymns, sitting in close proximity to each other, and socializing afterward.

Some have argued that religious gatherings are not as essential as businesses that provide necessary goods and services. After all, a benevolent, omnipotent, and omniscient god is likely to understand if worshipers cannot personally attend services.

Lastly, religious gatherings might encourage behavior that can spread the virus. There are people who continue to believe — as in my example above — that their religious beliefs will protect them from the virus. Or that the virus is an attempt by the government to suppress religion. Putting these people together could provide a safe space and legitimacy for their questionable beliefs.

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Regardless of these concerns, any government regulations restricting religious activities must be mindful of the constitutional right to practice the religion of one’s choosing. While courts prefer to give deference to the legislature and public health orders shutting down or limiting business operations to contain the spread of COVID-19, they have warned that religious groups must have the same accommodations that are given to businesses that provide essential goods and services. If supermarkets, hospitals, mechanics, and banks are allowed to operate so long as they follow certain safety procedures, religious organizations should also be allowed to operate under similar guidelines.

Thankfully, there have been some progress. Since the beginning of the outbreak, religious organizations have changed how they conducted their services to meet health and safety guidelines. Many give virtual services online. Others continue to have in-person services although gatherings have been limited. Attendees are required to wear masks and socially distance themselves from others. And some have even allowed drive-through services where attendees stay in their cars.

Are religious services essential enough to require special accommodations? That depends on who you ask. Atheists and some believers will say it is not since they can worship safely through online services. But older people do not have access to the internet or cannot use it because they are happy with their Apple IIe or their PCs running on Windows 95 and an Intel Celeron processor. And the devout believe that congregating with others who share their values and faith provides relief from the sense of prison-like isolation.

As for the people who think that prayer and faith will shield them from the coronavirus, according to science, they are misguided. Today, being covered with the blood of Jesus will not protect you from evil. It will make you a murder suspect. God, Jesus, and deities of other major religions have been hiding for the past several centuries. In the modern era, they may be playing more of a behind-the-scenes role. But we have not seen anything that defies the laws of physics and suggests a divine presence, such as spontaneous burning bushes (except on occasion in Southern California), or anything resembling the plagues of Egypt from the Old Testament. No one in modern times has been able to turn water into wine or feed 5,000 people with five loaves of bread and two fish. If someone today claims to have seen or spoken to Jesus, even religious leaders would recommend seeing a psychiatrist.

Would the presence of people like this justify shutting down or limiting the number of people who can attend service? It is possible but it would depend on how much influence these people have on the general congregation. So long as they are a small extremist fringe, and the pastor withholds the wine during communion, it’s likely that services won’t be forcibly closed.

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I was raised Christian so I believe Jesus was real and someday there will be a real-life sequel of the Passion of the Christ. Or better known as P2: Judgment Day. While we live in the age of science, religion provided the basic moral codes which became the foundation for modern society along with the technological advances it brought. I like to believe that religion and science can co-exist since both seek to find the truth. But there are those who strictly want a separation of church and state. The founding fathers understood the importance of practicing the religion of one’s choice. And over the centuries, many immigrants fled to the United States for this reason.

But this freedom is not absolute. Reasonable accommodations should be given for religious services during a pandemic. But if the virus continues to spread, our right to not be placed on a ventilator at a hospital ICU comes first.

If this controversy interested you, the Westside Bar Association is hosting a virtual MCLE event this Thursday evening featuring prominent scholars and civil rights leaders with much more knowledge on constitutional law. Speakers include Alan Dershowitz, Erwin Chemerinsky, Noah Feldman, Susan Herman of the ACLU, and Professor Kim West-Faulcon. The panelists will discuss upcoming and potential constitutional issues the government will face in 2021. Registration is free (Zoom access required) and California attorneys will receive two hours of MCLE credit for attending.

Hope to see you there. I’ll be hiding along with God and Jesus.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at [email protected]. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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