Monday, April 06, 2020

Forced Closing of Houses of Worship During the Corona Virus: Both Legal and Right

By Sanford V. Levinson & Eric Segall  (cross-posted @ Expert Forum of the American Constitution Society)

The spread of the Corona virus, a world-wide emergency, “presents itself,” as doctors might say, in particular national forms. Countries differ in cultures, so that Sweden apparently is taking a significantly different approach from its Scandinavian partners Norway and Denmark. But, of course, they also differ with regard to formal constitutional structures or arguably protected constitutional rights. At the present times, most, though not all, Americans are  quarantined—one might even use the word “detained”--in their homes, permitted to leave only for the most important reasons such as to buy food and medicine or to provide essential services. As of last Thursday, just under three-hundred million people in 41 states, the District of Columbia, and Puerto Rico have been urged by their governments to remain inside, and if they go outside for exercise, to keep their distance from one another.  Note, though, the unique importance of American federalism, inasmuch as the governors of nine states apparently think it continues to be party time and refuse to mandate compulsory lockdowns.  
But consider the states that have in fact vigorously acted.  Of those 41 states, 12 have made full or partial exemptions for religious services or houses of worship. We believe, however, that exempting churches, synagogues, and mosques from the generally applicable quarantine laws is a terrible mistake, a misreading of the Constitution as well as awful public policy.

Many religious “accommodations” are quite minimal in their consequences for the rest of us.  The Amish, for example, want primarily to be “left alone.” The rest of us pay very little price for the Amish withdrawal from what might be termed ordinary society. Recognizing the right of a conscientious objector to avoid military service does in fact mean that a single individual will be chosen to replace the objector, a very high cost to that person, but, in the great scheme of things, of relatively small importance to society at large.  

That is not at all true, however, with regard to Covid-19. As economists would point out, the “negative externalities” potentially visited on the rest of us by even a single contagious individual can be catastrophic, given the at-present exponential growth. Even if a single individual infects “only” two additional persons, the two can infect four, and in a matter of days it might be the case that well over 1000 cases could be traced back to the original source of the contagion.  
Religious gatherings are not immune from in effect becoming petri dishes of infection.  The potential negative, even catastrophic, consequences resulting from these gatherings are obvious, even if one lacks advanced training in epidemiology. All one needs to know is that the Corona virus is highly contagious, can be passed to people from carriers of the virus who are asymptomatic, and can cause serious injury or death not only to our most vulnerable populations but even those who are young, otherwise healthy, and full of potential. No one can reasonably gainsay that people gathering in large groups poses serious dangers not only to themselves, but also to others.  We are in virtual lockdowns across the country not merely out of a paternalistic desire to protect people form their own recklessness, but also, and more justifiably, to protect innocent bystanders against the reckless misconduct of those who insist on “life as normal,” including religious services.  

Despite these risks, some religious leaders have urged state and local governments to allow them to carry on their services as if the virus didn’t exist. Under both state and federal law, however, states need not and should not grant these exemptions.

Some people have claimed a constitutional right to freely exercise their religion in large groups despite the negative health consequences of doing so. The Supreme Court has held, however, in an opinion authored by none other than the late Justice Antonin Scalia, both a devout Catholic and a fierce defender of religious liberty, that Americans do not have a constitutional right to disobey generally applicable laws that were enacted without an intent to discriminate against religion. 
There is no argument that the stay in place laws now in effect were enacted because of religious bias. If ever motives were “pure,” it was in adopting policies that have inflicted great costs on the citizens of cities and states across the country.  Accordingly, and this is a rare phenomenon in constitutional law, it is “an open and shut case” that state and local governments may forbid large groups of people from worshiping together without violating the first amendment of the United States Constitution.  Nor are the costs of “accommodation” so small that one should be tempted, as with conscientious objectors, to pay them rather than infringe on someone’s assertion of protected religious liberty.  

Some states have statutes commonly referred to as Religious Freedom Restoration Acts (RFRA’s), which grant exemptions to people whose exercise of religion is substantially burdened by generally applicable laws. In such situations, once the plaintiff demonstrates such a burden, the government must prove that the law is necessary to achieve a compelling governmental interest and is the least restrictive way of furthering that interest. Slightly fewer than half the states have such laws.

There can be no doubt, however, that the governmental effort to stop the spread of the Corona virus is a compelling governmental interest.  Prohibitions on large gatherings are vital to preventing the virus from spreading to the population at large. (That it also protects those who might otherwise gather is a secondary point.)  There are ample legal precedents for the common-sense notion that health and safety laws can be legally applied by the government to religious institutions the same way they apply elsewhere in order to protect people from serious injury. Reducing the spread of a potentially dangerous virus during a world-wide pandemic is a classic example of a compelling governmental interest.  
The closing of houses of worship to large gatherings is also the least restrictive way of furthering the compelling interest in stopping or slowing down the spreading of the virus. As the public interest group The Freedom from Religion Foundation said in a letter to the Governor of Alabama:
There is no less restrictive way to achieve this interest [stopping the spread of the virus] than prohibiting large gatherings. Viruses do not respect houses of worship, they simply travel from person to person. The more people who gather, the more viruses spread. There is no way to effectively prevent this other than preventing person-to-person contact, so large gatherings must be stopped. Thus, the state has every right to prohibit these services under the current extreme circumstances.
One might wish that the group had a different title, but their point is absolutely correct, as proved, perhaps, by the fact that many Catholic bishops, who are scarcely uninterested in preserving religious freedom, have ordered the cessation of in-person masses and their replacement by online gatherings.  Similar decisions have been made by many public-spirited clergy of a variety of religious denominations.  But, potentially tragically, not by all!

Finally, although the question is a hard one, it may even violate the constitutional rights of non-believers to grant exemptions only to people who are gathering together for religious but not other purposes. Although religious exercise plays a special role in our Constitution and our country, one can fairly ask whether it is fair to carve out such an important exemption during such a tumultuous time for a country only for people of faith. Imagine a group of people dedicated to secular causes who meet regularly in large groups to exercise their free speech rights. Denying them that ability while granting it to people on the basis of religion threatens important values under both the free speech and equal protection clauses of our national Constitution.

As of March 18, 2020, roughly 60% of all known virus cases in South Korea could be traced to several large church gatherings. That alarming statistic should be a warning sign to America’s governors. Not only is it perfectly legal during this crisis under both state and federal law to apply general closure laws that are devastating millions of Americans in many different settings to houses of worship; it is obviously the right thing to do for the American people.  Not to do so would in effect honor the right of small and atypical religious minorities to tyrannize the rest of us through the thoughtless indifference to what the Constitution in its Preamble calls the “General Welfare.” There is no reason to accept this, in policy or in law.


Patrick S. O'Donnell said...

Hear! Hear! You might also have drawn upon documented cases in the U.S. in which religious gatherings are known to have been instances of infectious spread of the virus: at the beginning of April, "public health officials said...that a third of the [i.e., Sacramento] county's 314 confirmed coronavirus cases have been linked to church gatherings." Again, for example, "Nearly three dozen people who attended a children's event at a church in Arkansas tested positive for the coronavirus, according to the Arkansas Democrat Gazette."

Patrick S. O'Donnell said...

Incidentally, right-wing evangelical Christians (be they common citizens or holders of public office) seem dispositionally prone to ignoring public health information, advisories, and warnings about this pandemic (a toxic mix of religious fanaticism, ‘faith’ in contempt of reason and rationality, denial, self-deception, and wishful thinking—to cite the more conspicuous cognitive and psychological phenomena—fortuitously colluding in deleterious fashion). This group of Christians appear to believe their worldview makes for a religious variant of “survival of the fittest,” at the very least they see themselves as set apart from others, as somehow privileged “children of God” (the millenarian or apocalyptic chosen few?). With regard to the belief that their religious faith demands formal gatherings of their flock, they may want to re-visit some of the sayings and parables of Jesus in the (especially synoptic) Gospels (although it appears, for them at least, the ‘Old’ Testament trumps the New Testament). For example, Matthew 6:5-6 reads,

“When you pray, you shall not be like the hypocrites. For they love to pray [and sing and shout] standing in the synagogues and on the corners of the street, that they may be seen by men. Assuredly, I say to you, they have their own reward. But you, when you pray, go into your room, and when you have shut your door, pray to your Father who is in the secret place; and your Father who sees in secret will reward you openly.” [….]

Jesus himself set the example: “And rising very early in the morning, while it was still dark, he departed and went out to a desolate place, and there he prayed.”—Mark 1:35

“But he would withdraw to desolate places and pray.”—Luke 5:16

Here, the emphasis is on a more personal and intimate relation with God, while these evangelicals appear rather fond of ostentatious and public pronouncements and displays of their faith. Alas, their understanding of Gospel teachings strikes me as wrong-headed or perverted as that of the popular preachers of “prosperity” theology.

Loki said...

Wouldn't a "less restrictive way to achieve this interest [stopping the spread of the virus]" be to require any attendees at large gatherings to wear masks (finally widely admitted as reducing the spread of the virus) while also maintaining the standard 6' social distance? Many organizations could easy accommodate such distancing via outdoor gatherings or multiple services with limited attendance.

While no special exception should be made for religious gatherings, it's instead the 1st amendment right of assembly that seems most applicable here.

Joe said...

If masks merely "reduce" the spread of the virus, the means is of limited value especially given many religious meetings will have more at risk individuals (especially older people, often more likely to go to services) who are more inclined to be closer together (some closeness is basic to religious meetings and it is hard to remain six feet apart). It is also unclear how "limited" it will be.

So, I'm wary about that.

I think along the edges religion can be accommodated here. So, e.g., stay in place orders should not if possible prevent one on one home visits of ministers in various cases, pastoral work here of particular importance. Clergy here can in effect be treated like medical personnel since they have an important function that probably is helpful to the health of various people.

The overall principle is sound. I don't think assembly alone is most applicable here since the 1A specifically cites religion too. The Supreme Court thus in multiple early cases cited them together (see, e.g., Cantwell v. CT). So, it is sort of an assembly plus situation. But, the compelling interests are appropriately discussed by the two professors.

A comment on one of the professors' blog also raised this issue & it resulted in a few comments:

Loki said...

To clarify my my last post, my concern with focusing on religion is that assembly itself is equally protected. Any restrictions on general assembly - such as we now see in some states - that forbid people not of the same household to gather together for most purposes, while allowing them for religious or other "essential" purposes, would seem to violate the concept of content neutrality. These restrictions are not just time, place, and manner - in addition, they discriminate based on the purpose or reason for gathering.

Commercial activities have always been seen as less important that, say, political or religious ones. Yet, in the this case, commercial shopping is permitted, while religious services are not - even if the same time, place, and manner rules were to be followed. Labeling those commercial services "essential" is arbitrary - as can be demonstrated by each state - and the federal government - having differing definitions of "essential" businesses; and as can be seen by comparing those activities deemed essential vs those not.

Take, for example, fast food restaurants, which are almost universally deemed essential; yet present high risk both because of multiple workers gathered together in a small location, and because of the massive number of personal interactions. Yet, yard service work and construction - both of which can be performed with must more respect for social distancing - are often deemed non-essential.

Joe said...
This comment has been removed by the author.
Joe said...

"commercial shopping is permitted"

It is unclear why shopping etc. being labeled as "essential" is arbitrary. Commercial businesses per se aren't all allowed in each case. Specific ones are protected. So, e.g., clubs (an important area for association) are closed in NYC. The guidelines are crafted reasoning out what is essential as well as the nature of the business. I think the strongest case made in the clarification is the need for some nuance when crafting essential business rules. This would include noting food is more important than optional construction projects.

Shopping is even limited. For instance, the policy in my area is that having more than three people in a small space (such as a bakery) is not allowed. Shopping also is limited. People are there for a short period, social distancing can and is obtained in various ways. A Catholic mass, on the other hand, is can be around an hour, you have a bunch of people together in pews etc.

I'd note too that many fast food places are closed in my area, particularly Chinese restaurants. You have pizza ads also talking about how their pizza is not touched (pizza shown to be transferred to the box automatically) etc. Eating in the restaurant is also not allowed in my area. Only pick-up and delivery.

The "content neutrality" concern helps the professors' case since dealing with general factors would mean including religious assemblies given some comparable assembly given length, numbers etc. would also warrant barriers. Making an exception here would be problematic. Now, the 1A does specifically add extra protection for religion, thus my concern. But, exercise not being absolute, the limits are on whole fair.

[I will end there, since I don't want to dominate the thread.]

Frank Willa said...

Professor Dorf(in a different posting) has, discussing other places, such as Hong Kong that have the virus under far better control, observed they were able to do so because of the social fabric of those cultures.
This religious resistance is tearing at our fabric; as noted herein grounded in neither medical realities nor law.
The final two sentences of the commentary bring this matter into sharp focus- thank you to both authors.

Greg said...

Loki, you appear to be subscribing to the exact fallacy that concerned epidemiologists about making the mask recommendation in the first place. The experts have been quite clear that masks should be treated as a supplemental mitigation at best, and when wearing masks the general public should behave as though they aren't wearing one.

Thus, whether or not requiring a 6 foot distance during religious services is sufficient to satisfy the compelling government interest. I would argue that it most decidedly isn't, because even if the congregation is careful to sit at the correct distance, there are any number of times (particularly during ingress or egress) where the congregation is likely to unintentionally violate the distance requirements. It's just far safer not to gather at all, where the service being provided is not essential.

Now, allowing religious leaders to perform the ceremony virtually from an otherwise empty religious building could probably be legitimately considered minimal staff required to maintain essential business operations. I would still prefer that the leaders perform the ceremony from their own separate homes, if possible.

Asher said...

I have no comment, positive or negative, on the substance of what you say; I would just recommend that in future writings on coronavirus-related subjects (or in revisions to this post) you not call the coronavirus "the Corona virus," as that spelling is incorrect and probably tends to make some readers feel (however irrationally) you don't know what you're talking about. A coronavirus, as I understand things, isn't a proper noun or a unique designation of this virus, but a generic term for a large family of hundreds of viruses that appear to have a solar-corona-like outer layer when viewed under an electron microscope. People nevertheless refer to "the" coronavirus as shorthand for the particular one causing all the trouble, SARS-CoV-2, an understandable imprecision (or metonymy, perhaps), but that doesn't mean you can capitalize the word as though it really were a proper noun, much less insert a space between corona and virus, as if "Corona" were the species or something.