Where Does Religious Freedom End and Reckless Endangerment Begin?

April 14th 2020

Lakewood Church worship, in 2013 (ToBeDaniel)

By Bill Berkowitz

For a coterie of fundamentalist evangelical pastors, COVID-19 has become another battle in the culture wars, and Easter Sunday is Ground Zero. In this age of coronavirus, we have been seeing all sorts of responses to government directives to shelter in place, practice social distancing, and to not gather in large groups. Many people, especially in hard hit urban areas, have been doing their best to follow these guidelines or mandates. Passover Seders are carried out on Zoom, concerts have been cancelled, sporting events scratched, birthday celebrations have been held virtually or postponed. Major religious organizations including the National Association of Evangelicals, the Union for Reform Judaism, The Church of Jesus Christ of Latter-day Saints, the National Muslim Task Force and Catholic dioceses across the country have issued statements urging members to seek new ways to worship and pray, and most religious leaders across the country are supporting social distancing directives, holding online services and offering online counseling. But some evangelical pastors are openly defying these mandates.

Donald Trump opined on March 24th , that opening up churches on Easter Sunday would be a beautiful thing, but recently told defiant pastors to wait for the country to be healed our before holding church services.

The Kansas state legislature overrode the governor’s order banning gatherings of over 10 people, to allow for religious services. The Governor’s ban was eventually upheld by the state’s Supreme Court. Other governors, mostly across the South, have given exemptions for large gatherings in churches across their states. “Constitutionally, it’s true that restrictions on public gatherings cannot target houses of worship, but that’s not what’s going on here,” Rachel K. Laser, president and CEO of Americans United for Separation of Church and State, recently wrote. Just as religious entities must abide by the same building codes that apply to community centers and banks, churches, mosques and synagogues must follow public health orders that apply to secular large gatherings. COVID-19 doesn’t discriminate.

In the midst of this pandemic, it is relevant to ask: Where does religious freedom end and reckless endangerment begin?

On the April 3 edition of On The Media, titled “War, What Is It Good For?, Eula Bliss, the author of On Immunity: An Inoculation, told Brooke Gladstone that “In order to maintain a level of immunity within the community, everyone has to cooperate. I think refusing to participate in collective protection from disease is anti-social. …

“This is now very obvious as the disease spreads quickly across the globe. No place is remote enough that it’s not going to be touched by this disease. People might feel off the grid or removed or out of the way. That’s a psychological mirage and so is individualism actually in this context in terms of our relationship to disease we are not free-standing individuals. We’re always in relationship to other people. … Or health very much depends on what other people do.”  

Why are some extreme fundamentalists resisting? “I see it as part of a larger culture war,” Rob Boston, the editor of Americans United for Separation of Church and State’s Church & State magazine told me in an email exchange. “One of the most unfortunate features of modern-day fundamentalist Christianity is that it has given rise to a form of faith merged with extreme individualism and bootstrap capitalism that has more to do with the philosophy of Ayn Rand than Jesus Christ. Under this view, some pastors seem to believe that they are a law unto themselves and that they can do what they want as long as they are convinced that God wills it. This leads them to turn their backs on the idea of the public good. All that matters is what they perceive to be their rights.” 

Boston added:

Religious freedom is a cherished right of the American people, but that does not mean it is without limits. It has long been established in the law that religious practices that cause injury or harm to others can be curbed. The Supreme Court explained this principle in the 1944 case Prince v. Massachusetts. In this case, Jehovah's Witnesses challenged a Massachusetts law that limited the hours children could work. The Witnesses wanted their children to work in the evenings distributing religious literature, but the Supreme Court ruled that laws designed to protect children were legal. There is a footnote in the ruling that is being quoted a lot lately: ‘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.’ I should note that this principle is not limited to religious freedom only. Remember, you can't yell ‘Fire!’ in a crowded theater and call it free speech. All of our rights have certain limitations designed to protect the public good.

No one wants to see the government move against churches, but it's important to understand that the current ‘do not gather’ orders, when evenly applied to religious and secular events alike, are designed to protect us all. When people are told not to gather in groups of 10 or more but then religious meetings are exempted, it not only endangers public health, it extends a form of unconstitutional preference to religion. It's also just bad public policy. In several states, outbreaks of COVID-19 have been traced to religious gatherings. Remember, the virus doesn't care what type of meeting you're attending -- it will strike indiscriminately.

Boston pointed out that he couldn’t help but think “that we would not be here if some fundamentalists had not been seduced by an extreme and reckless form of individualism that they've elevated over the public good.”