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Tuesday, March 31, 2020

Is public worship a nonessential service?

Robert A. J. Gagnon

The very first line of the very first amendment of the Constitution contains the words that "Congress shall make no law . . . prohibiting the free exercise" of "religion." How prohibiting people from meeting and praying in person and arresting pastors who hold such a meeting, even when practicing a 6-foot-distant rule, distributing a hand sanitizer to everyone who comes, and installing a $100,000 hospital-grade air purification system is not a restraint on the "free exercise of religion" I know not.

When the state can prohibit people from meeting to worship in person, for any length of time that the state deems appropriate, and even arrest pastors who violate such a prohibition, that's quite a restraint on the free exercise of religion, isn't it?

Especially when the ruling in question permits any business to continue running where a 6-foot distant policy is implemented. Or when "shelters" are still permitted. Or when people continue to congregate in mass supermarkets, Walmarts, liquor stores, shelters, and gas stations. Or when abortion clinics are still open for business, killing babies and not practicing a 6-foot-distant policy.

Or when, as NYC ICU doctor, David Price notes, if you stop touching your face before washing your hands, you will not get the virus; and you would need prolonged (15-30 minutes) exposure to someone aspirating the virus within 3-6 feet in order to get it that way.

Or when according to an infectious disease expert, a mandatory national lockdown is no cure and ultimately more dangerous to the country than the disease itself.


The State has no right to determine whether religious assemblies constitute an "essential service" in the midst of a pandemic, much less the right to arrest pastors for gathering their flock. The first line of the First Amendment makes that absolutely clear. This is all the more obvious when the State declares abortion an "essential service." The State can issue a strong advisory for churches not to assemble regularly. Churches that assemble can be subject to criticism by the State, the general public, and other churches. But the State cannot order churches to stop assembling, much less arrest pastors for assembling, without violating the First Amendment right to "free exercise" of religion. If you don't know that, then our major problem is not the virus. I'm shocked that so many Evangelical leaders seem not to know this.


Are churches prepared not to meet in person for the next year-and-a-half that it will take to develop a vaccine and distribute it widely when parishioners can protect themselves by not touching their faces with unwashed hands and not being within 3-6 feet of the same infected person for 15-30m or more? Is that really a workable option? When 50,000 people die every year from seasonal flu and 443,000 from diseases related to smoking? When other outbreaks of severe virus are possible in the future? Are they going to condone the state arresting pastors who meet with their congregations during that interval? Do they value so little the scriptural injunction not to forsake meeting, much less the First Amendment that absolutely prohibits any restraint on the free exercise of religion? Do they have any idea what the long-term ramifications for religious liberty are from surrendering their rights to the state? Are they sheeple?

12 comments:

  1. Steve--

    I guess I don't understand. Are you saying the government NEVER has a right to limit free assembly? No matter how bad a pandemic, a hurricane, a gas leak, a chemical spill, or a riot might be, no emergency curfew may be imposed, no mandatory evacuation invoked because someone, somewhere might be holding a worship service?

    Sorry, but that sounds slightly paranoid to me. Maybe I'm a sheeple. I can't stand the Left's paranoia that Trump is going to turn into a flaming fascist one of these days, soon and very soon. I'm not going to resonate with the Right's fear that the neo-Marxists in charge of the swamp are going to use this crisis to shutter all the churches.

    I'm not unaware of the significant peril freedom of religion is under these days. I just don't believe that the handling of COVID is related to that. De Blasio's comments are indicative of how deep the threat goes. But he has no such power.

    Many of the current "shelter in place" orders are more-or-less voluntary. Nobody but nobody is being arrested. In fact, where I live, people seem to be taking business and school closings as an invitation to go party. Twice as many vehicles are on the road as usual!

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    1. Several issues:

      i) This isn't directly about a general right regarding free assembly but an explicitly guaranteed Constitutional right regarding the exercise of religion. The exercise of religion includes public assembly, but is more specific.

      ii) This is also about civil authorities taking it upon themselves to judge which kinds of goods and services are essential and which are nonessential, deeming public worship to be nonessential.

      iii) I don't subscribe to mandatory evacuations. People should be free to stay at their own risk. And as you know, many people disregard mandatory evacuations. That's a gamble, sometimes they lose the bet. But it's their life.

      iv) Much depends on examples. It ranges along a continuum. Sure, authorities can shut down a building (including a church) with a gas leak. Or it can cordon off a road with a gas leak, indirectly impeding access to a church.

      If there's a raging forest fire, the authorities can block access to the area until the fire is under control. Temporary curfews are sometimes justified.

      The question is whether these are valid analogies to an open-ended policy of criminalizing church services for the indefinite duration of a pandemic. Especially when restrictions about social distancing and essential/nonessential services are arbitrarily discriminatory.

      Put another way, there's the fallacy of extrapolating from clear-cut examples to borderline cases to increasingly attenuated examples where the principle becomes ac hoc and tyrannical.

      v) Moreover, as I've noted on more than one occasion, there are conflicting strategies for dealing with the coronavirus. One is blanket social distancing. Citywide, statewide, or national lockdowns. Mass house arrest. This is meant to flatten the curve.

      Another policy is just the opposite: allow the coronavirus to naturally spread as a way for the population to develop herd immunity.

      A mediating policy is testing and tracing to quarantine those who are actually infected, while others are free to resume work outside the home.

      To some degree, I think it's possible to combine the second and third strategies.

      vi) I haven't argued that the authorities are targeting churches. What they are doing is to deem the free exercise of religion to be nonessential during a crisis, while other goods and services are deemed to be essential. And they do that even in cases where churches can play by the same rules (number of participants, distance between participants). And that does reflect an irreligious bias.

      vii) I don't know why you bring up "shelter in place" orders that are not enforced. That are effectively voluntary. Where nobody is arrested for noncompliance. How is that comparable to the issue at hand?

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  2. Us lawyers work on precedent. What I find scary is the Mayor of NYC saying if churches and synagogues don't voluntarily shut down, then he will shut them down for good.

    Today it's a health crisis. But once the precedent has been set there is no going back. Tomorrow it could be Christians spreading seditious ideas about our new one world leader.

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  3. Steve--

    So what you're objecting to is not the existence of limiting orders but government overreach and arbitrariness? I can see that, at least in those places where arrests have taken place. (And designating licquor stores and marijuana shops "necessary" does seem plenty arbitrary.)

    I brought up non-enforcement because that seems to be typical in these situations. Calls for mandatory evacuations may--as you noted--be refused. You do forfeit your right to expect rescue services or to sue for damages, but by and large they will not pull you out of your residence kicking and screaming.

    That said, doesn't it look bad for Christians to be focused on "protecting their first-amendment rights" at a time when much of the country is legitimately hurting? Shouldn't we at least prioritize self sacrifice, rolling up our sleeves, and pitching in...even if "pitching in" means hunkering down in situ?

    Maybe I'm not well enough informed, but herd immunity seems to write off the best chances of the most vulnerable, the elderly and the infirm. If everybody gains immunity except them....

    Testing and quarantining--the Korean model--makes good sense. Plus, no matter the consequences, we're going to have to bring the economy back on line pretty doggone soon.

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    1. "That said, doesn't it look bad for Christians to be focused on 'protecting their first-amendment rights' at a time when much of the country is legitimately hurting? Shouldn't we at least prioritize self sacrifice, rolling up our sleeves, and pitching in...even if 'pitching in' means hunkering down in situ?"

      I've discussed that objection in other posts.

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    2. BTW, this isn't about shutting down a church building because it violates the fire code, but a sweeping ban on church services citywide and statewide.

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    3. "Maybe I'm not well enough informed, but herd immunity seems to write off the best chances of the most vulnerable, the elderly and the infirm. If everybody gains immunity except them...."

      1. As Steve points out, we can combine this with methods including mediating methods. So it wouldn't be like we're only going to let the coronavirus burn through a population unimpeded as our sole measure to stop its spread.

      2. The simple truth of the matter is we have no antivirals let alone vaccines against the coronavirus. There are score of antivirals and vaccines undergoing clinical trials right now, some sound promising, and hopefully one will prove successful, but at present there's nothing that's safe and effective.

      3. So, given the present absence of a vaccine, or even antivirals, the only other viable options to limit the spread of disease are options people have known about since at least the bubonic plague ravaged medieval Europe. In fact, even before, for much of what was used in medieval Europe with the black death was likewise used in ancient times, even stretching back to the dawn of history. I'm referring to things we're now very familiar with hearing about - self-isolation, quarantines, minimizing large public gatherings, business closures, etc. All these were known and done long before the advent of modern medicine. And that's more or less what we're left with today, though I'll say more about something else in a minute.

      4. As a side note, ironically, back in 2018, it looked like we might've been on the cusp of developing a coronavirus vaccine, but the medical research ran out of funding, and couldn't obtain more. So they had to shutter the R&D on a coronavirus vaccine. Speaknig of which, that's why many infectious disease experts argue for a universal influenza (flu) vaccine. It may cost millions of dollars, but if a flu pandemic strikes in the future, then the millions of dollars may be a well-made investment in light of the trillions of dollars it could cost us, as we see happening today with the coronavirus.
      Similarly, imagine a world in which there are no antibiotics for some of the deadliest bacteria in history. Yet this isn't that far-fetched, as many infectious disease physicians have long argued. Our highly modern and technologically advanced civilization could be a mere hair's breadth away from collapsing into the same fears and disasters that plagued our ancestors.

      To be fair, we would be better off than our ancestors in that we have scientifically and technologically advanced supportive care even if we don't have an effective treatment (e.g. ICUs with monitors, vents, fluids). However, as we see today, there's not an endless supply of supportive care and other necessary medical peronnel and resources. We could be forced to ration or triage. Make life and death decisions about who to save. As we see happening in countries like Italy.

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    4. 5. Now, I'm sort of melodramatizing things by saying we're only left with ancient methods to contain the spread of the virus. In fact, there is an available therapy that could be used today if we can get the logistics down. I've mentioned this therapy several times in the past: convalescent plasma therapy.

      6. In other words, what I'm saying is we could use this therapy to protect the elderly and infirm (and health care workers who are another at-risk category). Confer passive immunity on them through convalescent plasma therapy. Since, however, there wouldn't be enough of this therapy to go around for everyone, then everyone else would basically have no choice but to tough it out. In this respect, we wouldn't need to advocate letting the coronavirus burn through a community; rather it would naturally already be doing that, whether or not we like it.

      7. Of course, an issue is the use of ancient draconian methods in a democratic society. It's not as if we are ancient Egypt, Persia, or Rome. Nor serfs serving vassals, or subject to royal kings. All of whom could forcibly mandate draconian measures on their populations. We don't have this option, not if we wish to ensure our way of life. Or so it seems to me. But perhaps there are mediating positions to pursue.

      "Testing and quarantining--the Korean model--makes good sense."
      1. A shorthand for this is "test, track, treat". It is what South Korea has largely used, and I think it has been quite successful, but I just wanted to point out it wasn't invented by them.

      2. South Korea has taken measures which might not necessarily sit all that well with Americans (e.g. placing temperature checks on their borders and at entrances to large buildings and other public areas to test for fever and send people back home if they tested positive).

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    5. I'd add that I wasn't offering the herd immunity by natural transmission as a recommendation, but just to illustrate how many public officials have jumped on the social distancing bandwagon as if that's the only strategy. But as Hawk notes, there are more nuanced and mixed approaches. We'll also see how well or badly the herd immunity strategy works in Finland and Sweden–compared to other strategies.

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  4. Hawk--

    One thing all the Asian countries mention as part of their attack on COVID is the use of masks in the general population. Japan is getting back to work, doing just that on a massive scale. It's part and parcel of their "social distancing."

    One thing I just plain differ with you and Steve on. I cannot wrap my mind around why draconian measures--on a temporary basis--is incommeasurate with a free society. With a pandemic, it seems the sensible thing to do is to clamp down and clamp down hard as early as possible. In the long run, a better result will afford much greater freedom for a much longer stretch of time. Living with an epidemic run amok is not exactly my definition of freedom.

    I don't think there is any evidence from previous experience where such restrictions become permanent. We have far more to fear from the creeping socialism that may result from current governmental economic remedies.

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    1. Thanks, Eric. That's fair.

      I don't have an issue with wearing surgical masks (or N95 or P2 etc.). There's debate over their efficacy with regard to the coronavirus, with various studies coming to diametrically opposed conclusions, and this assumes people know how to correctly wear the mask and so forth (which many people don't), but I don't see how they hurt if they are adequately worn and used. There may be a handful of exceptions. Such as if someone is reusing the same surgical mask and breathing into which in turn could cause the surgical mask to become damp or moist. This could more easily collect pathogens.

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    2. I think there's a lot to say on the issue over temporary draconian measures. I might try to come back to it later.

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