When small-business owners said it, authorities ignored them. When coronavirus skeptics said it, their fellow citizens scoffed.
Now that federal judges are saying it, however, even governors are starting to pay attention.
“There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment,” U.S. District Judge James Dever wrote May 16.
That thunderclap came in a 22-page order barring North Carolina Gov. Roy Cooper from enforcing a 10-person limit on indoor worship services.
Cooper made the rule in an effort to stop COVID-19 from spreading, but the same executive order allowed retail businesses to operate at 50 percent of their fire code capacity. The stark difference in treatment teed up a textbook religious-discrimination claim.
Dever followed his bold pronouncement with an equally memeworthy citation from a case decided the week prior. The 6th U.S. Circuit Court of Appeals halted Kentucky Gov. Andy Beshear’s order preventing churches from holding in-person services.
“Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew?” the 6th Circuit’s per curiam opinion states. “And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers.
“While the law may take periodic naps during a pandemic, we will not let it sleep through one.”
Even as states ease travel restrictions and allow businesses to reopen with public health precautions in place, many are making the same inexplicable mistake — treating churches like virus vectors while letting shoppers spill into big-box stores by the hundreds.
In the North Carolina case, Attorney General Ryan Park argued that people sitting still for extended periods of time present a greater risk of coronavirus transmission than shoppers passing each other in the supermarket aisles. He couldn’t cite any epidemiological studies to support the claim.
Businesses and churches alike are required to observe social distancing requirements. If preserving a 6-foot buffer vastly reduces the spread of COVID-19, it works just as well in a cathedral as in a convenience store.
Why trust retail workers to enforce social distancing and keep visitors safe while doubting that pastors, priests, rabbis and imams are up to the job? States give ordained clergy the authority to officiate weddings. Apparently, governors think uniting two eternal souls is much easier than separating two temporal bodies.
The freedom-to-worship crowd isn’t undefeated. In Louisiana, U.S. District Judge Brian Jackson rebuffed a pastor’s lawsuit over Gov. John Bel Edwards’ stay-at-home order and its restriction on in-person services.
And in Sacramento, U.S. District Judge John Mendez ruled that Gov. Gavin Newsom’s emergency order didn’t violate a church’s First Amendment rights.
Those decisions deferring to governors’ emergency powers aren’t likely to hold up on appeal — particularly now that Attorney General William Barr’s putting his thumb on the scale.
Barr’s Justice Department has filed statements of interest siding with plaintiffs in COVID-19 religious liberty cases who want worship restrictions in Mississippi and Virginia struck down. The agency’s Civil Rights Division also sent Newsom a three-page letter warning against rules that treat churches differently from businesses.
“Religious gatherings may not be singled out for unequal treatment compared to other nonreligious gatherings that have the same effect on the government’s public health interest, absent the most compelling reasons,” Assistant Attorney General Eric Dreiband wrote, with all four U.S. attorneys for California signing on.
Dreiband cites the U.S. Supreme Court’s unanimous 1993 decision to throw out a city ordinance prohibiting ritual animal sacrifice in Hialeah, Florida. Justices said the law wasn’t generally applicable and was written to target a Santeria church.
The Justice Department letter uses a phrase strikingly similar to the one in Dever’s order: “Simply put, there is no pandemic exception to the U.S. Constitution and its Bill of Rights.”
Courts would countenance across-the-board limits on mass gatherings that treat churches the same as restaurants, department stores and boutiques. It’s astonishing that so many governors are hell-bent on singling them out for extra scrutiny.
Call them the fools who rush in where even angels fear to tread.
— Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter: @coreywrites. The opinions expressed are his own.