CHURCH & STATE | In the Face of a Deadly Global Pandemic, the Government Can Ban Large Gather-ings—Even Religious Ones

As the coronavirus has wreaked havoc on American lives, culture, and commerce by keeping people indoors, members of Solid Rock Church near Cincinnati decided they weren’t about to stay home.

In early April, residents of Ohio, like most other states, had been under orders to stay inside. People were told to venture out only when absolutely necessary, such as to stock up on groceries, get medical care, assist a person in distress, or travel to a job considered essential. Public gatherings were limited to ten people or less and even then residents were told to practice social distancing by staying at least six feet away from others.

Yet, at Solid Rock Church a CNN correspondent observed about seventy people entering the building for an evening service. They weren’t practicing social distancing. Congregants were observed hugging and shaking hands outside the church.

At the end of the service, the reporter, keeping his distance by brandishing a lengthy boom microphone, asked one woman why she was there. The woman said she wasn’t afraid of being infected; “I’m covered in Jesus’s blood.”

The efficacy of Jesus’s blood in combatting coronavirus is debatable. What’s not debatable is that this woman and the others at her evangelical church were endangering their community. Although the pastor insisted that no one in the congregation was sick, he had no way of knowing that. People can have coronavirus and be asymptomatic, meaning while they may not appear to be ill, they may very well be and are capable of passing the virus on to others.

How is it possible that this church has been able to gather when just about all other public events, such as theater productions, lectures, and sporting events were required to cancel? In Ohio, as in several other states, stay-at-home orders either exempted houses of worship outright or were not enforced against them. The misguided decisions by state governors to do this has put us at all risk. (Several coronavirus outbreaks have been traced to gatherings at churches.)

In some cases, governors seem to think they lack the power to order houses of worship to follow stay-at-home directives. Michigan Gov. Gretchen Whitmer, for example, told Fox News that the doctrine of separation of church and state tied her hands.

It doesn’t. In fact, separation of church and state says the exact opposite.

Under normal circumstances, where or how often a house of worship holds services would be of no interest to the government. But we all know that these are not normal times. We’re in the midst of a worldwide pandemic. Despite what some on the far right may claim, COVID-19, the disease caused by the coronavirus, isn’t just a variant of the seasonal flu. It’s not a flu at all, and it’s ten times more deadly. It’s easier to catch and, unlike the traditional flu, there’s currently no vaccine for it.

To protect the population, the government has the right to impose certain neutral restrictions on gatherings held by secular and religious groups alike. This means that in some states, you can’t go to a concert hall to hear an orchestra play or attend a local production of King Lear—and you also can’t go to a house of worship for services.

Religious and secular groups must be treated the same way. When secular activities are barred while religious ones are allowed to proceed, that creates a situation that extends preference to religious entities simply because they’re religious. It’s a violation of the First Amendment.

Furthermore, the US Supreme Court has repeatedly made it clear that the right to practice religious freedom does not include the power to expose others to death or injury.

This principle was established in 1905, when the Supreme Court heard a case called Jacobson v. Massachusetts, which upheld the right of states to fine residents who refused to get mandatory vaccinations.

The plaintiff in the case, a resident of Cambridge named Henning Jacobson, resisted getting a mandatory smallpox vaccine in the middle of an epidemic, arguing that forcing him to take the inoculation was “an invasion of his liberty.”

Jacobson was a member of the clergy, but he didn’t raise a specific religious objection to the vaccine. His generalized liberty argument failed at the high court, which ruled against him 7-2.

“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” observed Justice John Marshall Harlan.

Seventeen years later, the Supreme Court affirmed its ruling in the Jacobson case when it ruled in Zucht v. King that the public schools of San Antonio, Texas, could refuse admission to students unless they were first vaccinated against smallpox.

The high court cited the Jacobson case again in a 1944 ruling, Prince v. Massachusetts. The Prince case didn’t deal specifically with medical issues; rather, it revolved around a Massachusetts law that restricted the hours that children could work. Jehovah’s Witnesses, whose children often worked in the evenings distributing religious literature, challenged the law in court but lost.

The Supreme Court ruled that states have the right to protect children from harm, such as working long hours into the night. In a footnote, the court made an analogy to medical issues, asserting, “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”

Since then, several lower federal and state courts have issued similar decisions specifically rejecting the idea that parents have a right under religious freedom to ignore vaccination requirements as a condition of attending public schools.

The Constitution, as Justice Robert Jackson once famously observed, is not “a suicide pact.” Certain actions can be curbed or even banned outright if they present a danger to life and limb—even if those actions are motivated by religious belief. (Snake handling, anyone?)

I should note that the vast majority of religious leaders in America are behaving responsibly. Most have moved to online services or have canceled them outright until the virus dies down. Even Tony Perkins, the homophobic president of the Family Research Council and a guy I agree with on just about nothing, tweeted, “At this point, holding public church gatherings in the midst of a public health crisis is not a defense of religious freedom—it is a defiance of common sense and the care of your congregation. Spread the Good News, not the virus!”

Despite Perkins’s common-sense admonition, a handful of (mostly right-wing evangelical) pastors are behaving recklessly, and in some states, unfortunately, public officials are enabling them. Governors who are exempting houses of worship from broad and neutral curbs on public gatherings are putting everyone at risk.

For the good of all of us, they must stop.