Time to Reassert the First Amendment’s First Freedom

April 2021

A year ago this time, most churches and synagogues shut their doors—not because their pastors or rabbis had decided to do so, but because government officials had deemed the free exercise of religious liberty a threat to public health. And so, people of faith, striving to be both good citizens and obedient to the call of conscience, live-streamed Lent, Palm Sunday, Easter and Passover like some Netflix miniseries. What we were ordered to do was wrong, and what we learned is that online services are no substitute  for gathering together.

Alone

The good news is that many congregations have returned and reunited for worship. The bad news is that government authorities in certain jurisdictions continue to limit worship gatherings. The worse news is that government actions in response to COVID-19 have had the effect of permanently shuttering churches across the country—20 percent of churches will never reopen as a result of government-ordered shutdowns—and convincing a large percentage of Americans that participating in worship is no longer necessary.

Barna research reports that 32 percent of “practicing Christians” are not even streaming services online and “have dropped out of church for the time being.” In addition, five percent of all U.S. adults and three percent of Jews in the U.S. say they will attend religious services less often once the pandemic passes. That may not sound like a lot, but those percentages represent 215,000 Jewish Americans, 11 million religiously-unconnected adults and millions more children who will not be participating in one of the key elements of American civil society: religious community.

What an awful consequence of the COVID-19 lockdowns. In the Torah, Moses instructs humanity to honor the Sabbath. In the New Testament, Christ followers are called to “keep meeting together” and “worship God…with reverence and awe.” In Islam, gathering for “congregational worship” and Friday prayer is a command. But in an America stricken by fear, a third of self-described Christians and millions of others seeking a faith home have found something better to do with their weekends. We don’t have to worship on the same days or in the same ways—or at all—to recognize how awful this is for America’s civic life.

To be sure, worship is something that can be done alone. Some of the most beautiful worship offerings to God come from hospital beds and prison cells and lonely places. Yet we know that worship is magnified when it is done in community, as a shared experience. There’s something transcendent about gathering with others who share our faith and fears, beliefs and burdens. What was true in the beginning remains true today: “It is not good for man to be alone.”

Limited

Being together in community is central to the Christian faith and indeed most every faith. The Old Testament uses the world “together” nearly 300 times. The Book of Acts uses the word 15 times in relation to worship. Humans are made for community—to praise and pray together, to and hope and heal together, to repent and rebuild together, to serve and sacrifice together.

The faithful need to gather together for worship not to check some holiness box, not to make a point to well-meaning government officials, not to preen and pretend we are better than anyone else. We need to gather together because there’s strength, encouragement and courage in numbers—and because a higher authority than the president, the governor or the CDC calls on us to do so.

We were prevented from doing that by the lockdowns—which perversely and ahistorically quarantined the healthy.

Some look back at what our federal, state and local governments did and say it was all for the greater good. Others look upon the wreckage—the millions who have fallen away from faith, the hundreds of thousands who succumbed to addiction, the uncounted thousands who lost all hope and gave up on life, the generation that lost a year of education, the dying who faced the last hours of this life alone, the hundreds of churches that will never reopen their doors—and mourn not just for what has been visited upon so many innocents, but also for the violence done to religious liberty.

It’s telling that the first words of the First Amendment focus on religious liberty. The notion that government has no place telling a person whether, how, where, when or what to worship is a foundation stone of our free society. Again, we don’t have to worship on the same days or in the same ways to grasp this.

A story from America’s formative years adds some texture here. When the Baptist Association of Danbury wrote President Jefferson concerned that “what religious privileges we enjoy…we enjoy as favors granted and not as inalienable rights,” he 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, the most important is Jefferson’s assertion that Americans should be free to practice their faith and that the First Amendment is designed to shield the sphere of conscience and faith from government. Simply put, the First Amendment exists to prevent government from preventing religious activity. Yet somehow, at the height of this pandemic panic, 15 governors completely barred Americans from gathering inside a place of worship; 21 governors severely limited religious activity.

In response, many houses of worship shifted to online services. For churches, synagogues and mosques to do this by choice is understandable amidst the uncertainties of a new virus. Likewise, for individuals to choose not to visit their place of worship out of health concerns is an expression of individual responsibility—the essential analogue to individual liberty. But for government to prohibit people of faith from holding or attending religious services is something that should never happen in America.

Definitive

Livestream liturgies may serve as adequate facsimiles of worship for some, but government shutdown orders have 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, as noted earlier, Christians of all denominations are taught that gathering together for worship is central to faith.

The response from many government officials has been, in effect, “Deal with it.” For example, last autumn—long after the computer models were exposed as criminally incorrect; long after we realized that COVID-19 ruthlessly targets certain at-risk groups and that our resources should be directed at protecting those groups; long after so many in positions of authority were unmasked for allowing, rationalizing and encouraging massive public gatherings to protest this or celebrate that—20 states still maintained restrictions on religious gatherings.

Even the U.S. Supreme Court—self-styled “guardian of the Constitution”—was slow to act. The High Court sided last summer with governors in Nevada and California, after those states denied churches 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 foreshadowed what was to come.

“The Constitution guarantees the free exercise of religion,” Justice Samuel Alito intoned. “It says nothing about the freedom to play craps or blackjack.”

“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…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.”

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 fair question, and Gorsuch offered the definitive answer last November, as the Court reclaimed its role as defender of the Bill of Rights and struck down New York’s unconstitutional orders: “Government is not free to disregard the First Amendment in times of crisis.” New York and other states, he wrote, “have asserted the right to privilege restaurants, marijuana dispensaries and casinos over churches, mosques and temples…We may not shelter in place when the Constitution is under attack.”

In a February decision correcting the Court’s earlier error, Gorsuch again took aim at the double-standards and scientism that have infected decisionmakers in every sector. “We are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty.”

These decisions give us a sense, finally, that those of us committed to the free exercise of religion aren’t alone. Yet some states continue to smother religious activity. California has revised its executive orders to comply with the letter of the Court’s ruling, but it continues to limit attendance for religious services. New York limits religious services to no more than 50 percent of capacity; prohibits holding or shaking hands; and limits singing “unless 12 feet of separation can be provided between individuals.” Illinois refers houses of worship to a 2,600-word document that instructs them to hold “remote and drive-in services,” “congregate outdoors and/or in groups of less than 10,” discontinue singing, and “discourage loud speaking.” In New Jersey, indoor religious services “must be limited to 50 percent of a room’s capacity.” Massachusetts limits places of worship to 40-percent capacity. The list goes on.

Don’t misunderstand the point of here: Congregations that aren’t comfortable with reopening should keep on livestreaming. Believers who are sick or at-risk should stay safe and let communities of faith do what they were made to do: serve people in need. People who don’t want to go to church or temple or mosque shouldn’t go. But those of us who want to gather together for worship—those houses of worship that want to reunite in community—shouldn’t be hindered, discouraged, shamed or guidelined from doing so by government authorities.

For those readers interested in following precedent and history, governors didn’t close churches or issue worship guidelines during the pandemics of 1968 or 1957. And for those readers intent on “following the science,” the 1957 pandemic had a case-fatality rate of 0.67 percent; the case-fatality rate of COVID-19 is between 0.2 and 0.5 percent.

Challenge

People  of faith are ever challenged, as Augustine wrote, to be good citizens here in the City of Man, while striving to be faithful ambassadors of the City of God. Moses and Mordecai wrestled with this challenge, as did Peter and Paul.

The enduring lesson from scripture—and from our own history—is that there are times when we cannot both obey human authorities and follow God’s call. This is such a time.

 

Alan W. Dowd is a senior fellow with the Sagamore Institute, where he heads the Center for America’s Purpose and authors the Project Fortress blog. A shorter version of this essay appeared in the Stream.

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