News and Notes: It’s a State Thing, Stupid
By George Kane
The global COVID-19 pandemic is opening another division between Americans, over the “stay-at-home” regulations that have been issued in every state and by many cities. There are conflicting opinions over how quickly these regulations can be lifted while protecting public health. This division now threatens even the separation of government from religion.
State regulations typically have required closing non-essential businesses and limiting gatherings to groups of 10. Essential businesses like grocery stores and pharmacies are exempted. Churches are demanding their own exemption to the lockdown rule. “How” they ask, “can liquor stores be counted as an essential business while churches are not?” They claim that they are being treated unequally, and that the regulations violate their First Amendment rights of assembly and free exercise of religion. The risk of the spread of disease at worship services is greater than in the exempted stores, however. In early March 98 people attended a worship service in Arkansas that led to 61 cases of COVID-19 and four deaths.
This struggle is playing out in Minnesota as in many other states. In mid-May, Governor Walz was in negotiation with state religious leaders over steps to open churches for worship while maintaining protections against spreading the disease. The negotiations were considered urgent because the Catholic bishops of Minnesota and the Lutheran Church Missouri Synod announced that they planned to resume in-person worship in defiance of Walz’s orders, setting up a legal showdown.
President Trump nearly derailed Walz’s negotiations when he demanded that governors reopen churches, synagogues and mosques “right now,” and threatened to “override” state restrictions if Governors did not rescind them by the weekend. Trump called churches “essential” and vowed to “override” governors who did not open them. As everyone but the president knew, he does not have that authority.
Governor Walz continued negotiations into the weekend when he announced reaching a compromise with church leaders. Starting the following Wednesday, places of worship could open if they adhere to public health guidelines to keep congregants safe. According to the executive order, churches must adhere to the following requirements:
- In all settings, ensure a minimum of 6 feet of physical distancing between households.
- In indoor settings, occupancy must not exceed 25% of the normal occupant capacity, with a maximum of 250.
- In outdoor settings, gatherings must not exceed 250 individuals.
- They must develop and implement a COVID-19 Preparedness Plan in accordance with guide- lines developed by the Minnesota Department of Health.
Other guidelines are recommended rather than required:
- If churches cannot make Communion touch-free for all participants, they are asked to only distribute the sacrament hand-to-hand and not hand-to-mouth.
- Both the distributor and the receiver should extend their arms as far as is comfortable to maintain a safe distance of 6 feet.
- The distributor should use hand sanitizer before Communion and should sanitize again after touching their face, sneezing, coughing or significant touching of another person.
- All participants should wear face coverings.
- Hand sanitizer should be used before and after taking off a face covering for Communion.
But why should the government grant these exemptions? Government should clearly assert that there is no First Amendment violation in issuing regulations to protect the public health. The law does not distinguish between religious and secular organizations. Simply because practicality demands that exemptions must be granted to certain stores does not imply that exemptions must also be granted to churches. The churches are not asserting constitutional rights, but demanding exemptions from state laws as a religious privilege.
Two days after Walz’s new regulations for churches went into effect, the Supreme Court effectively put an end to further challenges, including from Trump. Expediting an appeal from California, the Court ruled 5–4, in a decision written by Chief Justice Roberts, that the Constitution leaves decisions of when restrictions on particular social activities should be lifted during the pandemic “to the politically accountable officials of the state,” whose decisions “should not be subject to second-guessing” by judges who lack “background, competence, and expertise to assess public health.”