Closing Our Sanctuaries Is Not a First Amendment Violation

It is an expression of Christian charity


Lost in the traumatic aftermath of George Floyd’s murder, including President Trump’s assault on the right to free speech and peaceable assembly, the US Supreme Court issued a ruling on another First Amendment issue late last week. The case involved a church suing the State of California for prohibiting large in-person services during the COVID-19 pandemic. The church argued that assembling as church is a fundamental expression of Christian faith, and that the order to limit gatherings is therefore a violation of the First Amendment. A majority on the Supreme Court disagreed, ruling that the prohibitions on mass gatherings did not constitute a violation of religious freedom.


I am not a legal scholar, but as an ethicist who focuses on political issues, I have studied the history of and political philosophy behind Supreme Court jurisprudence on religious freedom. One of the things that makes that history so interesting—and confusing—is that our Supreme Court has employed a variety of interpretations of the religion clauses of the First Amendment. Sometimes those differences have appeared across generations of the Court, and sometimes those differences have been the basis of contention among justices on the same Court.


Despite the fuzziness around religious liberty jurisprudence, though, I think the Supreme Court got this one right. Of the many ways the Court has interpreted religious freedom through the last hundred years or so, one prominent “test” that justices have used to determine whether civic law violates religious liberty is the Rational Basis Test. This test asks whether the law that is being questioned applies to everyone and has a rational justification, or whether it is simply targeting religious adherents. According to this standard, a law may inconvenience religious communities, even in substantial ways, but if the law does not intend to do so, but instead has a reasonable justification for implementation, applies to the general population, and is not crafted in such a way that clearly and predictably targets religion, then it is not a First Amendment violation.


In its ruling last week, the majority on the Supreme Court apparently used this standard in upholding the restrictions in California. They argued that the general intention of the law—to limit gatherings that could contribute to a resurgence of the virus—was clearly justified as a matter of public health and applied across social institutions and organizations equally, with no intention to single out or disadvantage religion. Against the church’s argument that the caps on religious gatherings were stricter than those placed on secular businesses, the justices responded that the plaintiffs were comparing apples to oranges. The number of people involved in large religious services, the density of their arrangement, the activities involved (like singing), and the length of time together all make the risk in these services higher than they are in stores and shops, where fewer people stay for a shorter periods of time and engage in behavior that does not contribute as directly to the spread of the virus. If the plaintiffs wanted a more accurate secular counterpart to worship services, they should look to theaters and sporting events, which are under heavier restriction in California. If anything, the justices suggested, California’s application of the law treated religion more favorably than analogous secular organizations or events.


I think the Court persuasively applied the Rational Basis Test in this case, but as a matter of political philosophy, I don’t like the standard. To my mind, the Rational Basis Test doesn’t adequately respect the true spirit of the religion clauses. The First Amendment wasn’t just meant to keep government from explicitly targeting religious communities. It also was meant to protect the religious integrity of citizens whose beliefs and practices are indirectly or implicitly threatened by laws that originate from (and serve) the interests of the majority.


At different times in the Supreme Court’s history, justices have adopted a more stringent approach. It has been called the Compelling State Interest Test. On this interpretation, a religious community may claim release from even a generally applicable and reasonably justified law if adhering to the law impinges on fundamental convictions or practices—unless the state can successfully argue that there is a compelling public interest that justifies the incursion on religious rights. What exactly represents a “compelling” public interest is, of course, a matter of prudential judgment, but this test sets a much higher bar than the Rational Basis Test. Rather than granting waivers as a rare and begrudging exception, it effectively says that our default should be to honor religious freedom claims unless we can show that the disadvantage placed on religious communities is an essential cost to serving the broader population’s fundamental good.


I think the Compelling State Interest Test is a much better reflection of the “original intent” of the First Amendment. Often called our “first freedom,” the Founders understood religion to be a sacred matter of conscientious integrity, and therefore they sought to protect it at great cost. They were especially concerned to protect minority religious communities from majoritarian ignorance or impulse, and in fact some of those religious minority communities (like eighteenth-century Baptists) were instrumental in the passage of the First Amendment. In a country that has always hosted robust communities of religious minorities, it is not enough to ask whether a law is generally and reasonably applicable. If religious adherents demonstrate that a law causes substantial injury to fundamental beliefs and practices of their community, the state needs to demonstrate that an extraordinary public need is at stake, that the law minimizes the incursion on religion as much as possible, and that the public cost to waiving the law is too great.


Even measured by Compelling State Interest, though, this week’s Supreme Court ruling looks wise. It is hard to imagine a more compelling state interest than mitigating a pandemic that has already killed more than 100,000 people in the US. Restrictions on public gatherings do not prevent Christians and other faith groups from worshipping. They just limit the form in which that can take place right now, for the public good.


People of faith ought to recognize the persuasiveness of that argument, not just legally but theologically. Those of us who are Christians, for instance, subscribe to a tradition with other-regarding love at its moral core. The Great Commandment to love others as we love ourselves compels us to seek the good of others zealously and unselfishly. The One whom we follow, Jesus Christ, modeled self-sacrificing love to the cross. In the spirit of that Christian love ethic, let us not get distracted by our current culture war’s creative depiction of Christianity as put-upon and under siege. Let us instead recognize in current restrictions on our churches an opportunity to model righteous concern for others.


I yearn to be back sharing space with my faith community as much as anyone. Thankful as I am for alternatives, my heart nonetheless breaks every Sunday morning, when our remote service simultaneously feeds me and reminds me of what I am so desperately missing. But following expert guidance on social distancing, masking, and limits on gatherings is worth the pain—for our own good, for the good of those we love, and for the good of those strangers whom Christ compels us to serve. Social responsibility is not an attack on our faith, and it is not a sign of weakness. It is a strong profession of allegiance to the One who calls us to live with and for others—even if we need to do it virtually for a while.