Will the Supreme Court Force States to Let Churches Reopen?

Georgia’s Church of Liberty Square, a pentecostal church associated with a COVID-19 outbreak. Photo: Dustin Chambers/Bloomberg via Getty Images

In the furor of demands to pare back coronavirus-related restrictions on business and other activities (a.k.a. “reopening America”), churches — particularly conservative Christian churches — have been very prominent. Given the considerable overlap these days between white Evangelicals and the Republican Party, it’s not surprising that the former share the latter’s rapidly growing inclination to view COVID-19-related public-health measures as a socialistic impingement on individual freedom and private enterprise. But something a bit deeper is clearly going on, as evidenced by the rising din of complaints from pols and clergy alike that stay-at-home orders and other restrictions specifically violate religious liberty rights. The president has been front-and-center on this claim, as the New York Times reported last week:

President Trump may not consider church essential to his personal life, but it may be to his political future. And so he waded into the culture wars on Friday by demanding that states allow places of worship to reopen “right away” and threatening to overrule any that defy him …

“The governors need to do the right thing and allow these very important, essential places of faith to open right now for this weekend,” Mr. Trump said, reading from a prepared text before leaving after just about a minute without taking questions. “If they don’t do it, I will override the governors. In America, we need more prayer, not less.”

Conservative Evangelical church leaders have been very active in protesting and in some cases resisting restrictions on in-person services, even as Catholics and mainline Protestants have generally shifted to online worship services and other interactions without treating it as a threat to their First Amendment rights. And California has been an epicenter of this church-based resistance, as CNN reported last week:

More than 1,200 pastors in California have signed a petition that says they will resume in-person services beginning on May 31. That would defy the state’s stay-at-home order, which was enacted to combat the spread of the novel coronavirus.

And now in addition to this political challenge, a California church is raising a legal challenge aimed at triggering an intervention by the U.S. Supreme Court, as Ian Millhiser explains:

A California church asked the Supreme Court over Memorial Day weekend for an exemption to the state’s stay-at-home order, claiming that the order violates the Constitution when applied to places of worship.

If granted, even a temporary emergency order would have sweeping national implications: It would be a clear signal that the Supreme Court, with its record of sympathy for religious conservatives, intends to expand “religious liberty” rights, even potentially at the expense of public health.

The current constitutional standard for “religious liberty” complaints against government regulation is essentially that religious institutions cannot be held to different standards than their secular counterparts. The California petitioners and many others argue that means churches should be allowed to reopen alongside the retail outlets and factories that are beginning to go back into business in California and other previously locked-down states. The riposte from the regulators is that churches are less like factories and retail stores than entertainment venues if they insist on meeting in person and indoors. But what the churches are really hoping for is a more aggressive “religious liberty” document that protects them against regulations that might pass muster if imposed on secular institutions. Instead of government neutrality — the current standard — they want constitutionally sanctioned privileges that cannot be abridged even in a pandemic, as Millhiser explains:

Even before the pandemic … the Court’s Republican majority has been eager to expand “religious liberty” rights. They even agreed to hear a case that could remove one of the primary obstacles to religious objectors who seek exemptions from state laws.

South Bay United, in other words, presents a question that the Court is already very interested in deciding: whether the rights of religious objectors should be expanded. And it is likely that a majority of the Court will vote for such an expansion.

Looming in the background of the litigation and protests is the simple fact that indoor religious services, particularly of the sort that conservative Evangelicals prefer, are particularly dangerous, as Paul Starr has observed:

[E]xamples of religious communities acting as superspreaders come from rural Arkansas in March, Sacramento in early April, and the Hasidic community in Brooklyn over the same period. Just this past week, a church in Ringgold, Georgia, that had reopened shut down again after a cluster of cases emerged in the congregation.

A well-documented case of contagion, involving a choir rehearsal on March 10 at a Presbyterian church in Mount Vernon, Washington, helps explain why indoor gatherings in churches present a high risk even with social distancing. The 60 singers who showed up that evening spent two and a half hours rehearsing; three weeks later, 45 had been either diagnosed with COVID-19 or become ill with its characteristic symptoms. Two of them died.

I could add that a Pentecostal church in Bartow County, Georgia, where I spent two weeks in quarantine in March, was closely associated with an outbreak there.

The essential point is that most worship services involve singing and individual and communal praying (not to mention hugging), which are activities perfectly designed to spread droplets that may contain the virus. To the extent that Pentecostal churches (like the chief plaintiff in the case before SCOTUS) are very prominent in “reopening” protests (it’s no accident that the May 31 date on which many churches plan to defy restrictions is Pentecost Sunday), it’s worth noting that speaking in the Unknown Tongue, a Pentecostal essential, is another kind of dangerously powerful form of religious expression.

As Millhiser notes, SCOTUS could refuse to outlaw public-health regulation of churches altogether, but require very narrow restrictions that could never effectively be enforced across the vast landscape of American religion.

Whatever the courts do, we’re realizing the pandemic has furthered the politicization of religious institutions, and the exploitation of them by Trump and his party. Paul Starr notes that Trump’s alleged role model, Andrew Jackson, faced a parallel challenge and dealt with it very differently:

During a cholera epidemic in 1832, President Andrew Jackson refused to accede to demands from religious leaders to declare a day of national fasting and prayer. “I could not do otherwise,” he declared, “without transcending the limits prescribed by the Constitution for the president; and without feeling that I might in some degree disturb the security which religion now enjoys in this country in its complete separation from the political concerns of the General Government.”

Jackson certainly understood that the main threat to religious liberty in this country didn’t come from unbelievers, but from alleged believers who lusted after secular power. And that hasn’t changed.

Will the Supreme Court Force States to Let Churches Reopen?