Can religious freedom survive COVID-19?

First Five by the Freedom Forum Institute

Mar 26, 2020

By Benjamin Marcus

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As a child, I attended weekend classes at our local synagogue to learn about Judaism. I remember one lesson above all from those years: past Jewish experience of pogroms and the Holocaust demands that Jews speak out against authoritarianism in the present and future. Government interference in Jewish religious life represents one common sign of creeping authoritarianism. Historically, when governments prohibited Jews from exercising their religious rights, arrests and death soon followed. But how should we respond when the government imposes restrictions on religion in order to protect life?

That is the question that ran through my head when I saw a video on Twitter last week of New York City police officers dispersing a crowd of Jews in Crown Heights at the Chabad-Lubavitch headquarters who were gathered for evening prayers. Dissenters were threatened with arrest. Again I considered the question when I saw pictures of the New York City Fire Department disbanding a Jewish wedding in Williamsburg.

Despite the negative visceral reaction I have to those images, and despite the reservations I would otherwise have as a religious liberty advocate who is grounded in Jewish history, I fully support the government’s decision to limit religious gatherings to mitigate the COVID-19 pandemic.

Around the world, governments are implementing measures that enforce social distancing in order to reduce the spread of the novel coronavirus. For example, last week the New York government banned all gatherings of 50 or more people. The measure applies to all gatherings, religious or not.

Some religious communities have reacted with anger and defiance to action taken by towns, states and the federal government. Last week, three plaintiffs sued New Hampshire’s governor for issuing an order prohibiting gatherings of 50 people or more. In their complaint, the plaintiffs list disrupted activities in which they want to participate in person, including Baptist church services and Sunday school. Other religious leaders have openly defied state bans on large gatherings. On Twitter, a video shows Rodney Howard-Browne, pastor of The River at Tampa Bay church in Florida, inviting congregants to shake hands with one another. “This church will never close,” he declared. And in Louisiana, the Rev. Tony Spell brought together hundreds of people in Life Tabernacle Church, saying, “We hold our religious rights dear and we are going to assemble no matter what someone says.”

But religious freedom — like all freedoms — is not absolute. As my colleague Lata Nott wrote last week, rights and government interests must be balanced. The government can enact laws that disrupt the free exercise of religion if the government can demonstrate a “compelling interest” for doing so. In this case, the government has a compelling interest to protect public safety and health in the midst of a pandemic by limiting large gatherings. The limits apply equally to religious and non-religious groups, so they are neutrally applicable — another key religious freedom test by courts. And the laws against gatherings are the least restrictive option available to the government to ensure public health.

Importantly, the government has not prohibited other types of religious activities that do not involve large public gatherings. Many houses of worship have chosen to live stream their services so that their members can still participate in religious life. For example, last week more than 25,000 people watched a live stream of a service at the Washington National Cathedral. And religious groups around the country, including Methodists and Jews, continue to provide critical social services like meal deliveries to the elderly and the food insecure.

In addition, despite handwringing by some religious leaders about government restrictions that disrupt gatherings, some religious institutions have elected to cancel their own services to protect the most vulnerable in their communities. Numerous Catholic dioceses chose to suspend celebrations of the Mass. The ADAMS Center in Virginia — the second-biggest mosque in the country — decided to cancel Friday prayer services. The Church of Jesus Christ of Latter-Day Saints, often referred to as the Mormon Church, canceled all meetings and activities worldwide. And many Jewish leaders have called for synagogues and yeshivas to close — and thankfully, communities have begun to take heed.

Religious liberty advocates should nevertheless pay close attention to government action in the coming weeks and months. A pandemic does not give the government carte blanche to abridge fundamental rights. Thankfully, a number of governmental and civil society organizations are serving as watchdogs to ensure that governments do not cross any bright lines. For example, the U.S. Commission on International Religious Freedom has published a fact sheet about the global pandemic and its impact on religious practice and freedom. And a multi-national research group called DiReSom — Diritto e Religione nelle Società Multiculturali, or Law and Religion in Multicultural Societies — is tracking legal regulations on religion during the COVID-19 outbreak.

But the best way to guard our rights, now as always, is for every person to read or watch the news, contact their representatives when necessary, and insist that we responsibly balance our individual rights and responsibilities to others. COVID-19 will be with us for a long time. Religious freedom will survive this pandemic if we are vigilant.