The Gazette, May 24, 2020, article written by L. Martin Nussbaum
During times of national emergency, government — singularly focused on the threat — sometimes tramples civil liberties. Consider the situation in June 1940. Germany had invaded Poland, Denmark, Belgium, and Holland. Congress had approved building 50,000 warplanes. France’s surrender was imminent. It was in this context that the Supreme Court affirmed a Pennsylvania school principal’s decision to expel Billy and Lillian Gobitis, ages 10 and 12, because they refused to pledge allegiance to the flag. Those children, as Jehovah’s Witnesses, “believed that such a gesture of respect for the flag was forbidden by the command of scripture.”
Justice Felix Frankfurter, writing for an 8-1 majority, rejected their request for religious exemption. He reasoned that the “ultimate foundation of a free society is the binding tie of cohesive sentiment”; the “flag is a symbol of our national unity”; and that it was for the nation’s “self-protection [to] utilize the education process for inculcating” feelings of national unity. National unity trumped. Religious freedom lost. The expulsion stood.
Concluding that Colorado needs statewide unity to corral the coronavirus, Gov. Jared Polis and the Colorado Department of Public Health and Environment first the “Stay at Home” and then the “Safer at Home” order. It prohibits public and private gatherings of more than 10 people. But the state exempted over 100 types of secular entities and devoted 18 pages of its order to list them all. These include scores of “critical businesses” including oil and gas drillers, liquor stores, firearms stores, and marijuana dispensaries. The only requirement is that they must comply with social distancing requirements.
What about churches willing to comply with these requirements? That’s confusing. The CDPHE says “[h]ouses of worship may remain open” but then takes this away by identifying only two acceptable ways to worship: on an “electronic platform” or through “more frequent” gatherings of “10 or fewer congregants.” For government officials to tell pastors, their only choice is one of these state-approved options is to effectively ban corporate worship.
Corporate worship is a core ecclesiastical function. It is required by the commandment to keep holy the Sabbath and commended by the New Testament. (Exodus 20:8-11; Deuteronomy 5:12-15; Hebrews 10:22-24). One Christian writer, Alexander Schmemann, describes the centrality of worship: “[M]an alone . . . is to respond to God’s blessing with his blessing. . . . ‘Homo sapiens’, ‘homo faber’. . . yes, but first of all, ‘homo adorans’.” Thus, the safer-at-home order’s burden on religious exercise and its encroachment on the autonomy of the church are incalculable.
The good news — as the U.S. Department of Justice recently told California Gov. Gavin Newsom about his similar order — is that “there is no pandemic exception to the U.S. Constitution and its Bill of Rights.” When a law burdens religious exercise while categorically exempting others for secular reasons, the free exercise clause requires the state to show that its interest is compelling and that it is advanced by the “least restrictive means.” But, after granting over 100 exemptions to others, the least restrictive means for churches is to exempt them, too.
On May 9, the U.S. Court of Appeals for the Sixth Circuit ordered a religious exemption from Kentucky’s similar order, reasoning:
[T]he Church and its congregants just want to be treated equally. They don’t seek to insulate themselves from the [State’s] general public health guidelines . . . They are willing to practice social distancing[, and t]hey are willing to follow any hygiene requirements.
. . . The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.
Come to think of it, aren’t the two groups of people often the same people — going to work on one day and going to worship on another? How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings?
The U.S. Supreme Court reversed its Gobitis decision in 1943. Colorado should likewise correct its order now.
L. Martin Nussbaum is a Colorado Springs attorney and First Amendment advocate.