Is attending church during the pandemic a constitutional right?
If you have paid any attention to pop culture in the last ten years, you have probably noticed the proliferation of zombie apocalypse stories in books, television, and movies.
One of the themes of this type of tale is “science can let us down.” They depict science’s failure to come through in a big way: the ensuing chaos, the fear, and violence as governments turn on their people, people turn on each other, and the world as we know it ends.
Maybe this was the fear on everyone’s mind as they cleared the store shelves and bought guns and ammunition in the early days of the COVID-19 pandemic.
Many were left to wonder if it would descend into disorder and murder and how bad the death toll would get before the end.
Three months later, we are pulling out of panic mode. Even the most nervous among us can see the numbers of newly infected people are dropping by the day. Moreover, the death toll hasn’t hit the highest heights that were predicted.
It is even harder to ignore the fight continuing between what seems to be two factions in the country. There is a battle over which idea of the constitution we want to uphold as we move back toward a more normal way of life.
Now, churches across the country are litigating for their rights to be reinstated. We have even had a word from our president: church is an essential service.
However, many governors and many private citizens don’t want to go “back to normal.”
How do we balance the liberty of both sides?
Church and The Constitution
Church worship services lie right at the intersection of several of your constitutional rights. Let’s take a look at what those are.
Most people associate the First Amendment with free speech. However, it enumerates several foundational rights we want our citizens to have. These include:
- free speech
- freedom of the press
- and freedom to petition the government for a redress of grievances.
However, the rights in the First Amendment that most apply to houses of worship are two:
- The right to peaceably assemble, and
- the separation of church and state.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Seems pretty straightforward, right?
The Legal Problem
The legal problem in this time of pandemic lies in the fact that our constitution also gives the states police powers in times of emergency.
Our Supreme Court has upheld the view that a state can enact laws that prohibit behavior applying to worshippers as long as it doesn’t single out worshippers.
In 1990, Justice Antonin Scalia wrote this in his opinion about court case Employment Division v. Smith, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”
If the state has police power and it’s free to regulate peaceful gatherings and religious services within that police power, then can the state control churches during a pandemic?
The legal dispute over these two powers has been going on for a month.
Does our governor really have the power to regulate how many people can gather for worship?
Does the constitution really grant her police powers she has assumed?
If the Michigan Supreme Court upholds Governor Whitmer’s right to continue her emergency orders, will churches follow the executive order, or will they begin meeting in defiance of the law? And what will happen if they do?
As many states begin to open their economies and their churches, we see gathering sizes limited more strictly than those of restaurants or other businesses. Additionally, we will start to see more churches responding with lawsuits against governors over these restrictions.
The Fourteenth Amendment is one of America’s most significant amendments. It was enacted in 1866 as part of the Reconstruction efforts after the Civil War.
Primarily, the Fourteenth Amendment established equal civil rights for former slaves. It was used 100 years later by Dr. Martin Luther King Jr. to argue against Jim Crow laws.
Here is what else this amendment did. It made it just as illegal for states to mess with the church as for the federal government. Before this, some states had continued to set up an official state church. Massachusetts was the last to give up its state church in 1833.
After the panic over illness subsides, some fundamental questions of our rights as citizens are coming to the forefront. Whether the house of worship is a church, synagogue, or mosque, questions remain. They aren’t just questions. They are realities that are going to be lived by citizens of Michigan and other states.