Can Covid-19 Stop the Free Exercise of Religion?

We continue to hear about restrictions on religious services even as the country is opening back up or, in some cases, closing down again.

Many churches have chosen to comply with governmental restrictions because they are concerned about the safety of their congregations and also because of Romans 13, which essentially says that Christians should submit to the governing authorities. Obviously, if it is impossible to obey both God and man, then God comes first. But most churches have concluded that there are sufficient ways to worship God that don’t conflict with governmental restrictions.

I said most, not all. Recently, the U.S. Supreme Court was asked to rule in two lawsuits challenging restrictions on the number of people who can attend religeous services during the Covid-19 epidemic.

I’m going to try to make this as simple as possible, but let me start with a little background. The Supreme Court has consistently read the First Amendment’s Freedom of Religion Clause to hold that governments may not place any restrictions on religious beliefs and opinions. But it has also consistently held that the protection for religious PRACTICES is not absolute. In particular, it tends to uphold restrictions on religious behavior (rather than religious beliefs) if the restrictions  (1) involve an area the state is authorized to regulate (e.g., public health and safety), and (2) do not discriminate against religion (i.e., they must also apply to similar activities by secular entities). There is another test that has to do with the strength of the governmental purpose, but that test is complicated and got fuzzier in 1990, so I won’t go into it here.  Finally, the Court’s cases in other contexts make it clear that governments can impose restrictions during an emergency that will not be allowed once the emergency is over.

Both of the recent cases were filed by churches that wanted to hold services that exceeded the attendance numbers set by the state. In the California case, the governor had restricted service attendance to the smaller of 25% of building capacity or 100 individuals. The Nevada case limited attendance to 50 individuals. In each lawsuit, the church asked the Court to issue an injunction prohibiting the state from enforcing the restrictions imposed on churches. And in each instance, the Supreme Court declined.

Does that mean we should be worried about losing our religious freedoms?

No.

First, since injunctions prohibit people from acting, the standards for obtaining them are extremely high. The denial of the injunctions does not tell us anything about how the Court would rule on the same issues when presented in a different type of proceeding.

Second, the Court did not issue a decision explaining its reasoning. The result could be different in cases with facts that are not completely identical.

Third, as noted above, restrictions legally imposed during an emergency can become unconstitutional once the emergency is over.

I am firmly convinced that the First Amendment Freedom of Religion Clause still lives.

__________

Kathryn Page Camp is a retired attorney and the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion, 2^nd ed. (KPPK Publishing, 2015).

The Power of Flexibility

Writers are sometimes classified as either plotters or pantsers. Plotters have every twist and turn planned before they even start writing, while pantsers start with a germ of an idea and then sit down and write by the seat of their pants. Then there are the many writers, like me, who fall somewhere in between.

I start with an outline. I know the beginning and the ending and then pencil in each chapter. That’s sort of like deciding where to go on vacation and then choosing the route to take. Maybe we want to get there quickly, so we stick to the freeways. Or we decide to take the scenic route. Or maybe we want to see specific places that require us to go out of the way.

The outline is what gets me started, just as a trip itinerary does. But although the destination rarely changes, the route may.

As a trip planner, I know every stop I intend to make. Then one site takes less time than we expected so we add something else nearby. Or another site is so fascinating that we spend extra time there and may cut something else out. We may even decide to leave the freeway and wander along the scenic route or vice versa. To be honest, though, that doesn’t happen very often. My trip planning is more rigid than my writing outline.

As I write, new ideas pop into my mind. They often fit within the current structure, but that isn’t always the case. I’ve already added two unplanned chapters to the first draft of my murder mystery because I need them to round out my main POV character. I have also cut—or rather combined—several chapters after I realized that my secondary POV character wouldn’t be present for those events and would have to learn about them second-hand rather than by participating in them. Sometimes telling is necessary, but it takes less space than showing does.

If I didn’t start with an outline, I would soon get lost. But if I stuck to it rigidly, I would miss out on the scenes that pop up along the way.

Flexibility is key.

The Internet Goldmine

I like to make my fiction as realistic as possible, so I do a lot of research using various sources, including the Internet. Some of those sites are gold and others are pyrite (fool’s gold), so they need to be carefully vetted.

My murder mystery takes place in Chicago, and I hit gold when I found the Chicago Police Department directives online. They provide information on police procedure that I would not have guessed on my own, including some that is at odds with what happens in the movies and on TV. What a surprise.

Take search warrants, for example. First, the warrant has to be approved by an Assistant Cook County State’s Attorney before it can be submitted to a judge. That serves as an extra check on the police. Second, with a few exceptions like drug busts, non-uniform personal must wear hats or vests clearly identifying them as members of the Chicago Police Department, and those hats and vests are closely monitored to ensure that they are worn only by individuals who are executing a valid search warrant.

I was even more surprised at the requirements for police lineups. The detectives investigating the case are not allowed to attend—nor is anyone else (other than the witness and the suspect’s attorney) with ties to the case. The lineup must be conducted by an independent administrator who is unaware of which person in the lineup is the suspect. While the directive doesn’t list the reason for these requirements, I’m guessing that the CPD doesn’t want anyone signaling the suspect’s identity to the witness either intentionally or unintentionally.

One reason for the precautions is purely pragmatic: the CPD doesn’t want the evidence thrown out because it is tainted. But I’d like to think that they are also trying to be fair to the suspect.

The point of this post, however, is to emphasize that the Internet can be a goldmine for researchers if we know how to sift the gold from the pyrite.

And it’s clearly worth the effort.

__________

If you haven’t figured it out yet, the answer to the rebus puzzle is “Police Lineup.” [Pole+icecube–cube line+up.]

Lessons from Jury Duty

I like to look for writing lessons everywhere I go. So when I was called in for jury duty on Wednesday, I took advantage of the opportunity to learn from the experience.

Some quick background. I was summoned for what was the first jury trial in the county since March. They required everyone to wear masks, moved the voir dire (the questioning of potential jurors) to a room large enough for social distancing, and took some other precautions. Overall, they did a nice job of trying to protect us from the virus.

The case required seven jurors (six regular and one alternate) and I was in position number 14, so even though the judge and attorneys dismissed five people, they never got to me. They probably would have dismissed me, too, since most lawyers don’t like having other attorney on their juries. I did have one or two colleagues who were accepted, but that’s not common.

Did I want to serve on the case? I had mixed feelings about it. On the one hand, I’ve never sat on a jury and it might have been an interesting, or at least an educational, experience. On the other hand, I’m pretty sure I would have been bored with the evidence and the arguments. Back in the late 80s or early 90s, I was on a roster of attorneys who arbitrated certain civil cases for the court system in Cook County, Illinois. Most of those cases were automobile accidents where the primary issue was whether the plaintiff was exaggerating his or her damages, and Wednesday’s case sounded just like them.

But even though all I got to observe was the voir dire of the people who were chosen (or rejected) for the jury, I did notice several lessons about writing. (Some of them are a bit of a stretch, but humor me.) Here they are.

1.     The educational video about jurors’ responsibilities said that jurors are not supposed to talk about the case until it is over. I’m pretty sure that didn’t apply to those of us who never got to hear any of the evidence, but even if it did, the case will be over before this posts. And once it is over, even what was said in the jury room loses its confidentiality.

Lesson: Timing is everything. As writers, we can’t keep every confidence until the end or we could quickly lose our readers. Even so, some information is best left to later to enhance the suspense.

2.     The attorneys in the case had very different approaches to voir dire. One relied on specific questions, while the other asked for a brief overview of each potential juror’s background and used an anecdote to gauge the individual’s feelings about damages. Some of the difference was based on personality, and some reflected the lawyers’ objectives created by their clients’ opposing positions. Although each attorney’s general approach is probably similar from case to case, the specific questions and the anecdote are likely to change with the situation.

Lesson: No two characters are alike, and even the same character changes his or her response based on the situation. If we don’t write these differences into our characters, they will be flat and boring.

3.     In Wednesday’s case, the defendant admitted liability, so the only issue was damages. That shortened the case considerably since most evidence about how the accident happened would be irrelevant. It also meant that the defendant didn’t have to testify, and she didn’t even come. Her absence might have been a foolish tactic or a brilliant one. Foolish because even though she wouldn’t be testifying, her presence would have personalized her. That usually brings the party some sympathy and can have a subtle effect on the jury. Or it may have been brilliant tactic if the defendant comes across as unlikeable even when just sitting there. But the point is, when the defendant admitted liability, she eliminated backstory that wasn’t relevant to the outcome.

Lesson: If you start your story too soon, you may lose your audience. Eliminate anything that your reader doesn’t need to know up front. Some backstory may be necessary but can often be woven in later on where it fits more easily.

4.     As mentioned above, the jury was filled before they got to me. They dismissed five potential jurors for various reasons and probably would have dismissed me, too. But that’s okay. Not every person is right for every jury.

Lesson: Just as not every person is right for every jury, not everyone is a potential reader for a particular book. Different people have different tastes, and an author can’t cater to all of them.

So wherever you find yourself, pay attention to what is going on around you.

__________

Unfortunately, my jury service wasn’t in the charming building in the photo. The courtrooms were moved in the 1970s and are now located in a more modern and starker complex. I don’t have a photo of the current courthouse, but it isn’t nearly as pretty, anyway.