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July 31, 2020Culture, Interviews

Obeying God Rather than Men? What’s Really a Religious Liberty Issue?

John Inazu on religious liberty and loving one other during the pandemic.
Obeying God Rather than Men? What’s Really a Religious Liberty Issue?
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Ed: How should we be thinking about restrictions on worship during the pandemic?

John: The details of restrictions will vary by locality and by our understanding of the virus and how it spreads. But as Christians, we should frame our assessments of restrictions within a broader ethic of love of God and love of neighbor.

To be sure, gathering for worship is a core Christian practice: the early church was known as the ecclesia (assembly), many Christian practices depend upon community, and the writer of Hebrews admonishes us not to give up meeting together (Hebrews 10:25). Limits on religious worship are serious matters for Christians.

At the same time, Christians through the ages have adjusted corporate gatherings in challenging circumstances. For centuries, missionaries, soldiers, and relief workers have improvised worship practices and forgone physical gatherings in extraordinary times. Today, churches in China and Iran do not often gather openly, but they are no less faithful to the Gospel because of their inability to do so.

Christians are also called to love our neighbors and care for the most vulnerable among us. We can live out these commitments even in uncertain times and even with imperfect knowledge. The nature of this virus means that health experts and government officials are constantly making judgments based on limited data, and necessarily speaking about risks rather than certainties. So we won’t always know with complete confidence what the right decision should be. But if there is a reasonable risk that in-person gatherings or other activities will harm our neighbors, then that risk should weigh heavily in the decisions we make.

Ed: How do I know if a risk is reasonable?

John: For starters, if you have limited your news sources to a particular partisan variety—if you are either a “Fox person” or an “MSNBC person”—then my hunch is you won’t know what is reasonable in this public health crisis. Your first step is to break out of your news bubble and realize that what is reasonable may not be what your favorite television or social media personality happens to be championing.

Step two is to pay attention to experts. We are in a cultural moment when experts and the institutions that credential them are viewed skeptically. Some of this is deserved. For example, I felt a bit of whiplash when some public health experts who had vehemently opposed protests by conservatives skeptical of shutdown orders quickly endorsed protests for racial justice. The virus doesn’t make political distinctions. Participating in a socially distanced protest is either safe or it’s not, and experts who changed their public health guidance based on the politics of the protest at issue deeply undermined their credibility. But we can’t afford to throw the baby out with the bathwater. Push back on inconsistencies, keep experts in their lanes, and recognize what Jennifer Frey has called “the limits of expertise.” But don’t give up on expertise altogether.

Ed: What about the inalienable right to religious liberty?

John: Regardless of one’s views about the nature of rights (or what we might call their ontological status), it is a fact of the world that no right is absolute. There is no absolute right to free speech: if you shout fire in a crowded theatre (assuming the theatre is not on fire), or say words that perjure yourself in court, or form a criminal conspiracy, you go to jail. There is no absolute right to the free exercise of religion: if you engage in human sacrifice in the name of religion, you go to jail.

Ed: If no right is absolute, then how do we protect religious freedom during the pandemic?

John: Like many people, I believe in the importance of religious freedom as a fundamental right recognized under the First Amendment. I also think the Supreme Court greatly damaged that right in its 1990 decision, Employment Division v. Smith. That decision held that “neutral” and “generally applicable” governmental restrictions against religious activity did not trigger heightened constitutional protection. Because most restrictions against religious activity are neutral and generally applicable, free exercise claims after Smith receives almost no special constitutional protection. There are various state and federal statutory protections, including the Religious Freedom Restoration Act (RFRA), but RFRA does not apply to state or local laws and regulations. And absent federally mandated COVID orders, most restrictions are occurring at the state and local level.

In light of the constitutional frame imposed by Smith, the key to protecting religious freedom during the pandemic is to ensure that religion is not treated less favorably than comparable non-religious activities. But the word “comparable” is extremely important. By now, we have a good sense from health experts that this virus spreads dangerously in high-density indoor spaces when people are exhaling with some intensity. That’s very bad news for most indoor church services: they are close to the perfect storm. Pastors and ministry leaders should recognize that traditional religious services are high-risk activities, and they should expect to be treated similarly to other high-risk activities involving groups of people meeting indoors.

That doesn’t mean that all group activities are high risk. An outdoor gathering with everyone wearing masks and spacing themselves six feet apart is lower risk than a church of 25 people meeting indoors and singing together without masks. So it’s not accurate to conclude that if some similarly sized activities are permitted, indoor worship services must also be permitted. The key legal, policy, and epidemiological question is whether the activities pose similar risks to indoor corporate worship.

This is what makes the Supreme Court’s recent refusal to address Nevada’s restrictions so egregious. Restricting religious worship to fewer than 50 people, while allowing casinos and other businesses to operate at 50% capacity regardless of size seems plainly unconstitutional. I am astounded that five justices of the Supreme Court thought otherwise. That doesn’t mean that churches in Nevada should open their doors like casinos. But it matters that we get the law right.

We might also helpfully contrast the Nevada case to an earlier one from California, which the Court also refused to review. The California restrictions, unlike those in Nevada, plausibly treated religious worship comparably to similar non-religious activities. Chief Justice Roberts’ brief concurrence in the denial of injunctive relief suggests the kinds of reasonable distinctions that policymakers and judges need to make in these cases.

Ed: Should churches and religious organizations be treated more favorably than similarly situated non-religious activities?

John: No. As I mentioned above, I think the Supreme Court was wrong to lower the protections for the free exercise of religion in its 1990 Smith decision. And it was wrong last week to deny review of the Nevada regulations. But even under a more robust understanding of the free exercise of religion—one in which a free exercise claim would trigger what courts refer to as “strict scrutiny” and would require the government to have a “compelling interest”—the government would very likely meet its burden if it treated religious activities like similarly situated non-religious activities. For example, if a city or county determines that opening secondary schools for in-person instruction is simply too great of a public health risk, then there is no plausible reason to exempt only religious schools based on the free exercise of religion. If anything, as I argued in a March 2020 essay in The Atlantic, the government’s interest in shutting down schools, including religious schools, only increases because it exempts a limited number of non-religious activities like hospitals and grocery stores. The more that religious gatherings compromise the ability for hospitals to remain open, the greater the state’s interest in restricting those gatherings.

I don’t say this lightly. My wife and I have three young kids, and two of them attend a Christian school. We are finding it incredibly difficult to assess the tradeoffs between the mental health and well-being of our kids who would greatly benefit from in-person learning (to say nothing of the benefits to us of getting them out of the house once in a while) against the risks of exposing them or others to the virus. But there is no plausible argument for exempting only religious schools if the government shuts down other schools. And if a local government allows in-person school, then Christians and Christian schools should do everything they can to mitigate the risks of spreading the virus in those circumstances.

Ed: What about Home Depot?

John: I’ve heard the Home Depot comparison come up quite a bit: if a city or county allows Home Depot to open, then how could it possibly keep churches closed? Generally speaking, the claim that Home Depot in any way resembles corporate worship strikes me as highly implausible. I was in Home Depot (with a mask and lots of hand sanitizer) just last week. The store (and others like it) has wide aisles, relatively few people, and nobody singing or hugging. There may well be churches that are small enough or empty enough to approximate the conditions in Home Depot. But my church—and I suspect many of your churches—doesn’t come close.

Ed: Do states and localities that allow Home Depot to open have any increased obligation to facilitate religious worship?

Maybe. If your church has 75 people and you meet in a 50,000 square-foot building and your state allows 75 people to shop in Home Depot with masks but doesn’t allow you to meet in your enormous building with masks, then you may well have a plausible constitutional free exercise claim. On the other hand, it would be perfectly reasonable for your state to allow Home Depot to remain open and still prevent your 5,000-person megachurch from meeting for in-person worship.

Ed: How do you balance what the law requires with the discretion exercised by policymakers?

John: State and local governments are scrambling to keep up with the best possible public-health guidance, and this inevitably leads to confusing and sometimes contradictory regulations.

Many of the public-health regulations reflect discretionary policy judgments by elected officials (or their appointees), and those judgments don’t violate constitutional rights even if we don’t like them. Some of the regulations have overreached, and they are properly being challenged in court. As I mentioned above, the Supreme Court’s failure to invalidate Nevada’s decision is hard to understand.

At the same time, many discretionary judgments that limit religious worship or religious education during the pandemic are perfectly constitutional. Some grandstanding lawyers and public officials are making matters worse by sacrificing nuance about these issues for the sake of political expediency. Nothing about this is easy or generalizable.

Ed: What advice would you offer Christians as they seek to understand the issues underlying the virus and religious freedom?

John: Be people of hope who are known for putting the interests of others above your own. Lament the costs of this virus to human life, mental health, and material well-being. Lament our inability to gather for worship. Pray for the end of this virus. But in the meantime, love your neighbors and seek the peace of the city, even if it feels costly.

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