“We’ve had pandemics before but never lock downs to this extent,” McConnell reflected. “We’ve never what amounts to a shuttering of synagogues, churches and mosques across the spectrum.” While there are some relevant principles of constitutional law, “there’s no rule book out there,” he said. These principles are not “cut and dry” but rather “a framework for debate and argumentation and decision-making.”
“Despite our constitutional promise of free exercise of religion and non-establishment, which we sometimes describe as the separation of church and state, there is no absolute separation,” McConnell continued. “The state has significant regulatory authority even as it touches religious activity, and this is especially true in a time of emergency like a pandemic.”
The leading precedent is over a century old: the 1905 U.S. Supreme Court decision Jacobson vs. Massachusetts, when the state of Massachusetts required citizens to be vaccinated during a smallpox epidemic.
Despite objections, including religious objections, “the Supreme court ruled that the state did have the constitutional authority to order everyone to get their smallpox vaccination,” McConnell said. At the same time, he noted, this decision was reached “well before the explosion of civil liberties litigation in the Supreme Court.”
He doubted the court would repeat its previous decision in the same way given current standards. At the same time, every lower court decision about objections to the coronavirus limits in recent weeks has cited this precedent.
For McConnell, the bottom line is that “when faced with a society-threatening epidemic, the state may implement measures that curtail constitutional rights, so long as the measures have some real or substantial relation to the public health crisis,” and are “not beyond all question a violation of rights secured by fundamental law.”
“The church is subject to the regulatory health authority of the state,” he said. “It is not absolute, but it is a very substantial authority.”
At the same time, the First Amendment of the U.S. Constitution provides significant guidance amid epidemic closures. In McConnell’s view, and the view of several federal courts, the First Amendment means “religious worship is essential” and it is “one of the most highly protected of all constitutional rights.”
“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.
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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.