By Alan W. Dowd
Next month marks the 229th anniversary of ratification of the Bill of Rights. The Founders designed the Bill of Rights as a bulwark for individual liberty against government coercion. Regrettably, our government’s respect for the Bill of Rights—especially the First Amendment’s protection of religious liberty—was an early victim of pandemic panic.
Before getting into how state and local governments have trampled the Bill of Rights in response to COVID19, it may be helpful to offer a refresher on the rights guaranteed by these first 10 amendments to the Constitution.
The First Amendment bars the government from establishing an official religion, requiring religious activity or “prohibiting the free exercise” of religion. It also protects freedom of speech and the press, the right to “peaceably” assemble, and the right to petition government for a redress of grievances.
The Second Amendment protects the right “to keep and bear arms.” The Third bars the government from forcing Americans to house military personnel. The Fourth ensures the right “to be secure” in our homes and on our property, the right to maintain control over what’s on our person, and protection against unreasonable searches and seizures.
The Fifth Amendment ensures due-process protections, protection from double-jeopardy and protection of private property from being confiscated “for public use without just compensation.”
The Sixth, Seventh and Eighth Amendments ensure the right to a public trial; the right of the accused to know and confront his accusers, to know what he is accused of, to defend himself and to seek legal counsel; the right to trial by jury; and protections against the government imposing excessive fines or inflicting “cruel and unusual punishments.”
Finally, the Ninth Amendment declares that just because “certain rights” are not enumerated does not mean they don’t exist. Similarly, the Tenth declares that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states…or to the people.”
It’s telling that the first words of the First Amendment focus on religious liberty—the freedom to worship any god or no god at all. This respect for conscience—this notion that the government has no place telling a person whether, how, where, when or what to worship—serves as a foundation stone for our political system. We don’t have to worship on the same days or in the same ways—or at all—to recognize this.
A story from America’s formative years adds some texture here. When the Baptist Association of Danbury wrote President Jefferson with concerns that “what religious privileges we enjoy…we enjoy as favors granted and not as inalienable rights,” the new president responded, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and state.”
Of the many things we can glean from this episode—aside from how later generations of Americans misplaced the source of the “wall of separation” phrase—perhaps the most important is Jefferson’s assertion that people of faith should be free to practice their faith and that the First Amendment is supposed to shield the sphere of conscience and faith from government. In other words, even Jefferson—who was more deistic than devout—understood that the First Amendment, by design, exists to prevent the government from preventing religious activity.
Yet somehow, at the height of the COVID19 panic, 15 governors in this “land of the free” barred Americans from gathering together inside a place of worship; 21 other governors severely limited religious activity.
Trying to be obedient to God’s call while being good citizens—the latest expression of the age-old tension created by living with one foot in the City of God and the other in the City of Man—many houses of worship shifted to livestream liturgies. For individual houses of worship to do this by choice is understandable amidst the uncertainties surrounding a public-health crisis; likewise, for individuals to choose not to attend worship services out of concern for their own health is an expression of individual responsibility—the essential analogue to individual liberty. But for people of faith to be barred from holding or attending religious services by executive fiat is something that should never happen in the United States.
Moreover, while livestream liturgies served as adequate facsimiles of worship for some people of faith, the government’s action created a moral dilemma for others: Orthodox Jews generally are not permitted to use computers on the Sabbath. Devout Catholics feel called to attend mass and receive communion daily. Indeed, Christians of all denominations are taught that gathering together for worship is central to our faith. It pays to recall that in the Book of Acts, which describes the birth of the Church, the word “together” is used 15 times in relation to believers and worship. Gathering for “congregational worship” and Friday prayer is a command within Islam.
The response from too many governors, mayors and judges has been, in effect, “Deal with it.”
By autumn—long after we had built up hospital capacity and “flattened the curve”; long after the computer models were exposed as criminally incorrect; long after we realized that assisted-living facilities represent 45 percent of all COVID19 deaths, that COVID19 ruthlessly targets the elderly and people suffering from certain preexisting conditions, that we should focus our energies and resources on protecting those groups; long after the data revealed that COVID19 has an infection-fatality rate not on par with another Spanish Flu, but more akin to a severe “pandemic influenza”; long after elected officials and epidemiologists were unmasked as frauds for allowing, rationalizing and even encouraging massive public gatherings to protest this incident or celebrate that championship—20 states still maintained severe restrictions on religious gatherings.
Indeed, on a single night in October, New York law enforcement authorities—implementing a new executive order issued by Gov. Andrew Cuomo—handed out fines of $15,000 each to five houses of worship. The Roman Catholic Diocese of Brooklyn and an association of Orthodox Jews challenged the order. Some Orthodox Jews were arrested for protesting restrictions on their right to gather together for worship.
In upholding New York’s restrictions on religious liberty, a federal judge asked, “How can we ignore the compelling state interest in protecting the health and life of all New Yorkers?” It’s a good question, and the U.S. Department of Justice offered an even better answer: “There is no pandemic exception to the United States Constitution and its Bill of Rights.”
Indeed, the Bill Rights was written not for carefree times, but to protect our freedoms in times of emergency, crisis and fear—times like this. Cuomo himself admitted that city and state policies smothering religious liberty are not really about science or public health, but rather “a fear-driven response.”
Real leaders appeal to reason rather than fear. Real leaders help people move beyond fear. Real leaders don’t use fear to justify policies at odds with constitutional rights and human rights.
Alas, there are precious few such leaders in high office today, as the COVID19 crisis reminds us on a sometimes-daily basis. Even the U.S. Supreme Court—“guardian of the Constitution”—sided with governors in Nevada and California on twin 5-4 votes when churches argued that those states denied them the right to open their facilities to the same level of public access as casinos, movie theaters, bars and restaurants.
The dissents were scathing and spot-on—and underscore that First Amendment protections don’t stop at state borders: “The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack,” Justice Samuel Alito intoned. “Under the governor’s edict, a 10-screen multiplex may host 500 moviegoers at any time,” Justice Neil Gorsuch wrote. “A casino, too, may cater to hundreds at once…But churches, synagogues and mosques are banned from admitting more than 50 worshipers—no matter how large the building, how distant the individuals, how many wear facemasks, no matter the precautions…The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel,” an incredulous Gorsuch added.
A DOJ finding leveled at the City of San Francisco echoed Alito and Gorsuch: “That we are dealing with a very serious public health crisis does not permit government to discriminate against religious worshipers…while permitting larger numbers of people to gather in tattoo parlors, hair salons, massage studios and other places.”
To be sure, governors are granted authority to take the lead in dealing with public-health emergencies. But as state attorneys general, state lawmakers, state and federal courts, and elected and appointed law-enforcement officials have made clear, that authority is not absolute; governors are not empowered to rule by fiat; emergencies cannot last forever; and most important of all, emergencies don’t override our God-given rights—especially the right to gather together for worship.
Let’s celebrate the birthday of our Bill of Rights by reviving the First Amendment—and returning to the timeless principle that individuals and individual houses of worship can best determine whether, when and how to gather for worship.