By Ed Mechmann
While all of us non-essential workers hunker down in our homes, a number of very important “big picture” legal and constitutional issues have become apparent. One in particular deserves a thorough examination: How do we resolve conflicts between quarantines and religious liberty?
The Quarantine and the Conflict
We are all living under some pretty strict quarantine regulations. There are many who bristle against the legal rules, particularly the suspension of all mass gatherings, which means a ban on Mass with a congregation. (Note that the quarantine rules don’t prohibit the celebration of sacraments as such – the suspension of Confession is not strictly required by the rules.) There is a growing wave of pushback against the restrictions, and a number of Protestant congregations around the country have already gone to court to challenge them or have openly defied them in acts of civil disobedience.
So how do you resolve these conflicts between the government’s authority to impose quarantine rules and our fundamental right to religious liberty? There are a lot of people relying on a simplistic argument that the quarantine rules violate our freedom of movement, association, religious practice, etc. Of course they do, but that alone is not enough to settle the dispute. None of our rights are absolute, either under the Constitution or natural law or Church teaching. All of them can be legitimately regulated and limited, especially in a time of crisis.
Too much of the debate so far has centered on whether particular activities are “essential” or not. You typically hear “how can liquor stores be essential but Mass isn’t?” But this inevitably devolves into a battle over subjective judgments. What’s “essential” to me differs from what is “essential” to you. We can always find a way to argue “whatabout”. (Of course, baseball is absolutely “essential” – that’s not an opinion, it’s just a fact.) There’s no way to resolve these disagreements.
This is why it is vitally important that we understand the actual legal standards that apply to this situation. To do this, we need to go back in time a bit and talk about another plague, the conflicts between preventive measures and individual rights that resulted, and how the Supreme Court resolved it.
COVID-19 is bad. But smallpox is far, far worse. It is highly contagious. On average, 30% of victims died. Some forms had almost a 100% fatality rate. Before it was eradicated in the world in 1979, it had killed many hundreds of millions of people. It is estimated that it took the lives of 300 million people world-wide in the early 20th century alone. It was a major reason for the decimation of Native Americans after Europeans arrived. History is filled with accounts of smallpox plagues and their devastating effects. It is probably the most prolific killer in history.
A vaccination against smallpox was developed as early as the 18th century. In the 1800’s most U.S. states passed laws mandating vaccination for all. However, some people objected to being vaccinated for a variety of reasons, including religious objections and concerns about the long-term effect on their health. One man took his fight against smallpox vaccination all the way to the Supreme Court. He asserted that the mandate violated his constitutional right to liberty, as guaranteed by the Fourteenth Amendment.
His case, Jacobson v. Commonwealth of Massachusetts, was decided way back in 1905. But the Court’s ruling is still the controlling law whenever public health measures come into conflict with individual rights. The holding of the Court was summarized recently in a contemporary case:
[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some real or substantial relation to the public health crisis and are not beyond all question, a plain, palpable invasion of rights secured by the fundamental law. Courts may ask whether the state’s emergency measures lack basic exceptions for extreme cases, and whether the measures are pretextual – that is, arbitrary or oppressive. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures.In re Greg Abbott, (5th Cir., April 7, 2020) (citations and internal quotation marks omitted)
So that sets the stage for our discussion of religious liberty during the time of COVID-19.
Working Through the Legal Test
The threshold question is whether the prohibitions on public religious services have a “real and substantial relation” to the health crisis.
Clearly, social distancing and stay-at-home rules have a “real [and] substantial relation” to ameliorating the public health crisis. COVID-19 is also highly contagious, and many people are carrying it without knowing. All public health authorities agree that public activities, especially gatherings of large groups, must be significantly curtailed to prevent the further spread of the disease. All the conspiracy theories and amateur epidemiology opinions online don’t carry any weight against the unanimity of public health experts.
But a court can’t stop there. It must evaluate how the restrictions relate to the crisis as it exists at the time of the challenge. Our Constitution does not permit anything like “permanent emergency” laws that enhance government power and suspend civil liberties beyond the actual crisis itself. As the crisis changes, so must the regulations and so must the legal analysis. More on this later.
The second part of the test assumes that the regulations have a relationship with the crisis. So we next have to ask whether the rules are “beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” or if they are “pretextual — that is, arbitrary or oppressive”.
Here we have to look at multiple legal tests under the First Amendment. Are they neutral laws of general applicability or do they subject religion to unequal and unfavorable treatment? Are they merely a pretext to suppress religion, arbitrary or oppressive? Then there’s the state constitutional standard: is the restriction on religious practice unreasonable? (Note that we don’t have to consider the federal Religious Freedom Restoration Act, since the quarantine rules are state, and not federal, regulations.)
The current New York ban on mass gatherings passes these tests – at this time. All group meetings of any kind are suspended. Religious worship is not singled out for unfavorable treatment. The rules are plainly not a mere pretext for oppressing religion. Nor are they arbitrary. At least for now, the ban isn’t unreasonable. And no court is going to second-guess the public health authorities when so many people are dying.
But that isn’t the final answer. Circumstances change, and the application of the legal standards will have to change also.
The Way Forward
When the pandemic begins to subside, we can begin to resume normal liturgical and sacramental life while still obeying necessary public health precautions. For example, we could hold public Mass, with attendance limits and social distancing. In some cases we could conduct “drive-in” Mass, if the Church has a suitable parking lot. There are some things we could probably do even now under the strict rules, but certainly once the threat is reduced. We could resume Confessions with precautions such as a plastic panel between priest and penitent, mask requirements, and appropriate social distancing on line. Or we could open the church to Adoration with attendance limits and social distancing. I’m sure that creative pastors and parishioners could come up with more ideas.
Any adjustments to the quarantine rules should be done only in consultation with the public authorities, not unilaterally. They should be based on changes in circumstances, not just impatience to return to normal. We should avoid court challenges if at all possible. We should be setting an example of good citizenship during this crisis.
I strongly oppose acts of civil disobedience. We do not want people to see churches flouting the rules or acting in a way that is heedless of the danger of spreading the disease. Fear of the disease is at such a level that our neighbors are likely to have no patience for civil disobedience. We do not want to do anything that will increase hostility to Christians, which is already at a dangerous level. The state of religious liberty in our country is very tenuous right now, and we can’t afford to make it any more unpopular than it already is.
As Christians, we also have a serious moral duty to act responsibly, with particular concern for the weakest and most vulnerable among us. They are the ones who are most protected by the lock-down and social distancing rules. Our legitimate desire to return to “normal” can’t come at the price of endangering lives.