Religious Freedom in the Age of a Global Pandemic

First Five by the Freedom Forum Institute

Dec 3, 2020


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The practice of Religious Freedom, like most other spheres of human activity, has been radically affected by the coronavirus pandemic.

Recently more than 200 COVID-19 cases and 12 deaths were linked to a church in Charlotte, North Carolina, which held large gatherings over a week in early October reportedly without enforcing proper coronavirus safety precautions.

This is not the first time such an outbreak has been identified. Other significant COVID-19 outbreaks have been traced to religious services, including one at a Maine church and another in Alabama. This is the first time, however, that linkage was disclosed after a Supreme Court decision last week that turned back new COVID-19 restrictions on places of worship in New York state.

In last week’s decision, just moments before midnight on Thanksgiving Eve, the Supreme Court — including newly confirmed Justice Amy Coney Barrett — considered a challenge by the Roman Catholic Diocese of Brooklyn to pandemic restrictions on religious gatherings. The 5-4 decision blocked orders imposed by New York state that sharply limited the number of attendees at religious services because of the COVID-19 pandemic.

The unsigned opinion asserted that the orders violated the Free Exercise Clause of the First Amendment because they “single out houses of worship for especially harsh treatment.” Hardware stores, acupuncturists and liquor stores were among establishments immune from similar restrictions.

As coronavirus cases continue to surge throughout the country, many of us are being asked to follow stricter guidelines, including travel restrictions, banning of contact sports and wearing a mask.

Should these same guidelines be placed on religious organizations? Will the decision in the Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo change the course on religion cases, now that conservative Barrett has replaced the late liberal Ruth Bader Ginsburg? Does the decision give free rein to religious organizations to ignore government regulations of all kinds?

Tracking the issue in a series of orders and legal rulings in Kentucky gives us much to examine. On Nov. 18, Gov. Andy Beshear issued a temporary school-related restraining order and unveiled new restrictions that, if approved, could apply until mid-December for restaurants, bars, gyms, offices, indoor gatherings, weddings and funerals.

An executive order was then signed by Beshear requiring all schools to halt in-person classes starting Nov. 23, allowing elementary schools to reopen after Dec. 7 if their county is not in the state’s “red zone,” with middle and high schools unable to reopen until after Jan. 4.

Two days later, Attorney General Daniel Cameron's office joined a lawsuit filed by Danville Christian Academy, which took issue with the orders applying to private, religious schools in Kentucky. The lawsuit sought a temporary restraining order.

U.S. District Judge Gregory Van Tatenhove ruled that religious and private schools were exempt because the order "infringes on their constitutional rights." However, the U.S Court of Appeals for the Sixth Circuit struck down that temporary restraining order, saying the Beshear order is broadly applicable and does not discriminate against a certain group. They also say they are “not in a position to second-guess the governor’s determination regarding the health and safety of the commonwealth at this point in time.”

Cameron, tweeting after the Court of Appeals’ decision, called it "frightening that the governor believes he can suspend religious liberty."

Cameron continued, “We’re disappointed with the Sixth Circuit’s ruling allowing the governor to close religious schools, but we’re already hard at work to take this matter to the U.S. Supreme Court. The governor is not above the law and we urge him to drop this ill-conceived appeal and to halt his attacks on religious freedom.”

One thing seems to be certain, whether it is New York, Kentucky or North Carolina — the U.S. Supreme Court will be busy sorting out all of these matters as COVID-19 cases continue to rise during the holiday season.

When the Supreme Court faced similar pandemic cases before Ginsburg died, the court ruled in favor of restrictions. Given Barrett’s background and testimony at her confirmation hearings, it’s clear she will be a protector of religious causes — perhaps tilting the scales long-term in such cases. But at what cost?