Is there a point when attempts by the government to keep us safe go too far?
When protesters stormed state capitals in Michigan and Wisconsin in recent weeks demanding that the coronavirus pandemic lockdowns be lifted, the reaction from many observers was disbelief and even fear. Most mainstream media voices dismissed claims that government orders mandating that Americans shelter at home violated their constitutional rights.
But as the lockdowns have dragged on, the debate has shifted from the desire of small-business owners and ordinary citizens to go back to work to a more fundamental right: the freedom of worship.
Concerns that the nature of religious services, which tend to pack lots of people together, are likely to lead to the spread of the contagion have been backed up by some conspicuous examples. Some 35 of the 92 people who attended one particular church service in rural Arkansas in March wound up testing positive for COVID-19, with three of them later dying, and 26 more who had come into contact with those who attended the event diagnosed with the virus. And the devastating impact of the virus on Chassidic communities in Brooklyn, N.Y.—the biggest hotspot for the outbreak in the country—is linked to those who came down with COVID-19 after attending packed synagogue services or study sessions, as well as the fact that large families live in cramped homes.
But as the curve of pandemic infections and fatalities has started to flatten, impatience with the continued bans on worship services is running short.
This week, 1,200 pastors vowed that their churches would defy California Gov. Gavin Newsom’s statewide suspension of religious gatherings by the end of May.
And they’re not the only ones.
Defiance of lockdown orders directed at funeral gatherings and yeshivah openings became a particular point of contention when New York City Mayor Bill de Blasio singled out Jews for being scofflaws, generating a storm of protest at what some perceived to be an anti-Semitic remark. Along those lines, churches around the country are echoing the California demand setting up potential confrontations if faith communities refuse to obey the authorities.
Now the federal government is now getting into the dispute on the side of the worshippers.
Earlier this month, the Department of Justice announced that it would review shutdown orders. The orders would be scrutinized to see whether localities were overdoing the restrictions, and especially to determine if they were discriminating against faith by keeping houses of worship closed while other events or businesses were open and deemed “essential.”
The stakes in this argument were raised by President Donald Trump’s announcement that he considers religious observance “essential,” and that he would “override” the efforts of states and cities to shut them down.
In a public-health emergency like a pandemic, many of the usual rules have to be suspended if lives are going to be saved. That’s why the metaphors being thrown about in connection to this situation about it being war are apt. In wartime, constitutional rights can be temporarily suspended for the common good.
But the operational word is temporary, and with some state governments dragging their feet with respect to beginning the process of lifting pandemic restrictions, the impatience with the orders is beginning to seem more reasonable.
Any discussion about the opening of the country after the lockdowns must take into consideration that governments are obligated to both defend public health in a time of crisis and ensure that nothing happens to start another major outbreak. Those who dismiss or minimize the potential danger are wrong.
But by the same token, the right of governments to impose draconian restrictions on behavior, including the abrogation of fundamental constitutional rights, is neither unlimited nor open-ended. All such rules handed down must be subject to scrutiny and pass constitutional muster.
That means arbitrary rules that are both overly restrictive as well as detached from efforts to limit the peril of the pandemic deserve to be overturned by the courts.
When the immense power of the state is deployed on behalf of rules that appear to be clearly arbitrary—such as Michigan Gov. Gretchen Whitmer’s orders banning the sale of gardening supplies or the right to travel to second homes at lakes or rural areas—it undermines support for the rule of law and the people’s faith in the judgment of the state.
That is all the more true when state power is invoked to deprive citizens of their First Amendment right to religious liberty.
Thanks to federalism, Trump—or any president—doesn’t actually have the power to override such state or local decisions. But he can order the U.S. Justice Department to sue those entities that violate the constitutional rights of Americans to “free exercise” of religion.
The question here isn’t whether it is wise to limit such services while the disease is a threat to public safety or if it makes sense to conduct them with social-distancing measures in place.
What is at play here is whether states and cities are correct in dismissing the notion that the right to religious freedom is not as “essential” as many other services not specifically mentioned in the constitution. Put succinctly, the president isn’t wrong to note that a right to pray as part of a community is just as essential and legally protected as keeping liquor stores or abortion clinics open.
At a time of such danger, those who claim that the right to conduct worship services is absolute and undiminished are wrong. But those who treat freedom of religion as less important than many other activities are equally mistaken. At the very least, houses of worship must be treated at least as well as ordinary businesses. They cannot be treated as having fewer rights.
Those who defy bans on services must be careful not to act in such a manner as to not only discredit their cause, but to prove that they are not a menace to public health. Those who think the right to worship can be denied with impunity or by downgrading its importance to society, however, are equally mistaken.
Jonathan S. Tobin is editor in chief of JNS—Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.