The Gazette, featuring L. Martin Nussbaum
Dated: November 29, 2020
POINT: L. Martin Nussbaum
In general, churches, synagogues, and mosques should be exempt from government Covid restrictions–but not from implementing their own common sense health measures. With Covid infections on the rise and vaccines months away, the temptation to give government power to regulate religious assemblies is great. Before taking that leap, consider seven principles.
1. We ought not mandate a cure that is worse than the disease. These are hard times: schools closed to in-person learning, children home alone, businesses failing, hospitals swamped, and elders dying alone. Communal worship, pastoral care, and the grace that flows from these ministrations are essential, necessary to our people.
2. The most distinctive thing about the American experiment is its protection of religious liberty, found in the First Amendment of the Constitution. Worship is at the heart of what the First Amendment protects. It is one thing to regulate a church youth group’s car wash on Saturday and quite another to bar a Muslim from Friday prayer or a Catholic from Sunday Mass.
3. Government’s constitutional powers do not grow in an emergency. As Justice Jackson wrote, the founders “knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.” There is no emergency clause in the Constitution that expands the power of government while shrinking the rights of believers and their faith communities.
4. The government cannot invoke the health risks of the pandemic to justify targeting a particular religious group. Thus, Governor Cuomo’s repeated threats of enforcement actions against Orthodox Jews is one of the reasons the Supreme Court granted them injunctive relief the day before Thanksgiving.
5. Covid regulations cannot discriminate against churches, synagogues, and mosques. The November 25, U.S. Supreme Court Catholic Diocese of Brooklyn decision is instructive. It granted the Diocese and its parishes a Free Exercise exemption from a 10 or 25 person occupancy limit because New York made acupuncture facilities, campgrounds, garages, and chemical manufacturing plans subject to less onerous restrictions. Meanwhile, Colorado’s federal court did not grant a religious exemption for churches when they were subject to an even-handed mask mandate.
6. The U.S. Supreme Court has long recognized that religious societies are sovereign over core ecclesiastical matters. Thus, however important the legal value against racial and sexual discrimination, the Nation of Islam can insist on ministers who are Black. Christian, Jewish, and Muslim groups can, or cannot, limit ordination to men. Similarly, government cannot dictate how worship is conducted.
This is why the El Paso County June 15 public health order stating that “[a]nyone preparing communion elements shall do so wearing a cloth face covering and sterile gloves” cannot survive constitutional challenge.
7. The freedom of the church does not excuse it from using common sense. Any pastor who refuses all health rules during this pandemic risks injuring the flock under his or her care and bringing scandal to the church. Church folk have common sense. They should use it and set an example for others. No one has said it better that the Sixth Circuit last May: “The Governor [of Kentucky in pronouncing Covid regulations] 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?”
COUNTERPOINT: Karen Oliveto
As I watch COVID-19 cases and deaths skyrocket across our state and country, I am haunted by the words of the apostle Paul:
*L. Martin Nussbaum is a partner at Nussbaum Speir Gleason in Colorado Springs. He advocates for religious institutions nationwide. Karen Oliveto is the Bishop of The Mountain Sky Conference of The United Methodist Church, providing spiritual leadership to nearly 400 churches in Colorado, Utah, Montana, and Wyoming.