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.