"Insofar as these orders denigrate the ability to practice religion, because of the assumption that religion is 'less essential' than, say, hardware stores, I think that is impermissible, unconstitutional and will be struck down by most courts," he said. "On the other hand, if the state is making an assessment on the basis of public health risk, then I think it is another story."
The state has the right to impose what the Supreme Court calls "neutral laws of general applicability," McConnell said. Prohibitions on large gatherings of people, or requirements that they meet only with certain safety protocols, often tend to affect religious and non-church activity equally.
However, questions of double standards arise when governors and other public officials exempt broad categories of other activity on the grounds they are "essential" or "life-sustaining," concepts that McConnell said introduce an element of "subjectivity." Kentucky's statewide orders, recently struck down in federal court, did not exempt churches from closure but did allow "life-sustaining" establishments to open, provided they followed social distancing and other hygiene regulations. These establishments included hardware stores, laundromats, dry cleaners, law offices, and liquor stores.
Churches can make the case to the courts that they are more like these institutions than unlike, and therefore should open if they follow similar precautions.
Archbishop Cordileone similarly saw a problem with the government "telling the Church what is essential," when only the Church has that authority. He also saw a problem in the government deciding that anyone's services are "essential," given the subjectivity of the concept.
"The role of the government is to say what is safe, and to say you have to abide by these safety standards," the archbishop told the briefing. "If you can abide by these safety standards, you can continue to function. If you can't, then you wouldn't be able to."
McConnell worried that some government officials have a deep misunderstanding of religion.
"The real problem here, which is quite disturbing from a constitutional point of view, is that many governors have taken the view that religious activity may be completely banned because it is essentially voluntary," McConnell said. "It is treated like you might be going to a movie."
While limits on churches did not appear unusually burdensome in initial weeks of the epidemic, precisely because so many similar activities were barred, McConnell said this will become an issue as states gradually exempt more and more activities in an effort to restore social and economic life. The difficulty of maintaining limits on peoples' activities over the long term will also show the need for better accommodation of constitutional rights such as religious exercise.
Given that the state can decide the question of whether parishioners gathered for worship are more dangerous from a public health perspective than a store's customers gathered to purchase goods, McConnell said he would still be sceptical. He would seek to confirm that public health officials made that judgement and would try to confirm that they judged rightly.
"I'd also like to know why we are generalizing to all religious assemblies," he said.
(Story continues below)
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"There's a big difference between 1,000 people gathered in the pews packed together sitting next to each other, versus a church that has carefully demarcated 6-by-6-feet areas in which a family can gather only there and not be close to any others, or, for example, holding outdoor services under appropriate circumstances."
Any generalization that all religious services are conducted in dangerous ways suggests a significant lack of interest in religious freedom, McConnell said.
Cordileone, citing interactions with government leaders, suggested public officials "don't understand what we can do to keep people safe." Church leaders need to reach out to officials and inform them what is possible.
"When they think of a worship service they think of something like a megachurch, 1,000 to 2,000 people jammed in a crowded area," he said. "They don't think that we can have distance in our churches, or that we can have outdoor services."
Cordileone cited suggestions from the Thomistic Institute of the Dominican House of Studies, which published guidance on coronavirus and churches composed by a working group of theologians, liturgists, and health care experts.
"It's a very thorough and detailed document about what we can do to open up for Mass," Cordileone said.