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.

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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).

Shameless Promotion

No, this is not a rant against shameless promotion. It is shameless promotion. The updated second edition of my first book, In God We Trust, was released by KP/PK Publishing on September 30, 2015, and this week's blog post promotes it.

Throughout American history, the First Amendment has been a lightning rod for the debate over religious freedom and its limitations within a free society. Intense legal battles have been fought over prayer in school, religious symbols on public property, and the right to speak out when religious beliefs conflict with popular opinion. These battles will continue as society struggles with the degree of tolerance to give organized religion.

Does the First Amendment create a wall of separation between church and state? How important was that concept to the men who created the Constitution and the Bill of Rights? Has the Supreme Court been true to the founders’ intent, or has it distorted the First Amendment religion clauses beyond recognition?

Written in plain English for laypeople, In God We Trust provides a neutral summary of the First Amendment’s historical background and the Supreme Court cases interpreting it. This knowledge arms readers with the tools they need to answer those questions for themselves.

You can find the Amazon.com link for the paperback version here.

The Kindle version will be available later this week.

 

Thanks for letting me engage in this shameless promotion.

The Real Winner

In 1978, the Nazi Party decided to hold a march and rally in Skokie, Illinois, which had a large Jewish population. When the city refused to give the demonstrators a permit, they turned to the ACLU to represent them.

The ACLU had a dilemma. Although it despised the Nazi Party and everything it stood for, the ACLU was a fierce defender of free speech. So what was it to do? It accepted the case, and the courts allowed the rally to proceed.* It may seem like the Nazi Party won, but freedom of speech was the real winner.

This past Wednesday, the Supreme Court decided a case that reminds me of the Skokie case and creates the same dilemma.** You may know the facts, but if you don't, here is a summary.

The Westboro Baptist Church is one of the smallest but most prominent "churches" in America. It was founded by Fred Phelps, and its congregation is composed of members of his family. Westboro claims that God kills American soldiers as punishment for sin, and especially for this country's tolerance of homosexuality in the military. To spread its message, Westboro pickets funerals for soldiers killed in the line of duty.

After Marine Lance Corporal Matthew Snyder was killed in Iraq, Phelps and several of his relatives traveled to Maryland to picket the service. They notified the city of their intent and followed the relevant ordinances. The picket signs bore hateful messages, but the picketers did not attempt to keep anyone from attending the funeral or the burial, did not yell or use profanity, and did not engage in violence.

Corporal Snyder's father sued the picketers for intentional infliction of emotional distress, and a jury awarded Mr. Snyder over $10 million. Phelps and his relatives appealed, claiming that the jury award violated their First Amendment free speech rights.

Westboro's actions are the antithesis of Christianity, and its name is a taint on the many Baptist churches that follow Christ's command to love our enemies. Christ hated sin, but he loved people. All people. Westboro's statements and tactics show its hate for those same people.

Since I sympathize with the family and friends of the soldiers whose funerals Westboro targets, my heart wanted Westboro to lose.

But my mind said something else.

The First Amendment is designed to protect unpopular speech and ideas that aren't endorsed by the majority of Americans. If Westboro's members aren't allowed to express their ideas, what happens to my right to say something that isn't considered "politically correct"? As long as Westboro's members are allowed to proclaim their message, I'm allowed to proclaim mine. If their speech is suppressed, what will happen to the true Christian message if it becomes an outcast in this society?

I may seem like hate won, but freedom of speech was the real winner.

And I can live with that.
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* Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978).

** Snyder v. Phelps, 562 U.S. __ (2011). The United States Supreme Court decided this case (No. 09-751) on March 2, 2011.