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Why The Government Can Shut Down Church Gatherings During Pandemics

Below is my column in The Hill newspaper. This weekend the Kansas Supreme Court ruled with the Governor in upholding her order to close church services over 10 persons. That is particularly notable since, as mentioned in the column, Kansas is a state with enhanced protections for the free exercise of religion.

Here is the column:

“Jesus bore it so that you would not have to.” If that recent declaration by the Awaken Church of Jonesboro in Arkansas is true, Jesus might also be viewed as the first coronavirus offender, because the Last Supper hosted three disciples too many under the social gathering limits in most states during this crisis. At the time, of course, Roman Governor Pontius Pilate was trying to contain Christianity itself, which now some church leaders accuse American governors of doing. Some churches plan to defy state public health directives by carrying out large Easter services.

The issue is playing out in several states. In Kansas, Democratic Governor Laura Kelly has barred religious gatherings with more than 10 people. That action prompted the Republican controlled state legislature to then vote to rescind the order as an attack on free exercise of religion. Kelly asked her staff to explore all her legal options. Under the Constitution, she is on strong grounds to issue such an order. While untested, the free exercise clause is not a license for religious spreaders in a pandemic.

This may be the most compelling use of the belief that the Constitution “is not a suicide pact.” I have been critical of that often repeated reference by those who want to ignore fundamental rights. It was originally attributed to Abraham Lincoln after he had violated the Constitution by unilaterally suspending habeas corpus. It is more often attributed to Supreme Court Justice Robert Jackson, without noting that he used the line in one of his most reprehensible opinions, a dissent to the Supreme Court extending protections to a priest arrested for his controversial speech.

These churches would convert the free exercise clause into a suicide pact of sorts. The interpretation not only puts the faithful at risk of infection but also their communities. No constitutional rights are truly absolute. Rights such as free exercise of religion and free speech can be overcome with a sufficiently compelling purpose of state and the least restrictive means of achieving that purpose. There is nothing more compelling than battling a pandemic, and limiting gathering size is the only effective deterrent to the coronavirus spreading until a vaccine can be made available.

However, that has not stopped defiance. In Florida, Republican Governor Ron DeSantis overruled local orders limiting or barring church gatherings. In Arkansas, Pastor Chad Gonzales of Awaken Church defied demands to end services. His declaration of Jesus as a coronavirus victim was based on the belief that Jesus took away every sin and disease on the cross, a particularly powerful message for Easter. Similarly, Pastor Tony Spell of the Life Tabernacle Church in Louisiana was arrested for holding large services. Spell declared his intention to hold large Easter services and insisted that he will never yield to this “dictator law.” Even more chilling was his statement that “true Christians do not mind dying.”

If this were a matter of just congregants dying, a constitutional argument could be made for the right to make a self destructive decision based on faith. Adults can forgo simple medicines or transfusions that would save their lives. Likewise, the snake handlers in West Virginia can still engage in that dangerous practice based on a passage in the Bible that the faithful “shall take up serpents” and the story of Paul surviving a venomous viper. Yet even in practices that kill only the faithful, many states have outlawed snake handling as dangerous to both humans and snakes.

One of the key factors in any constitutional review is whether free exercise of religion is truly being denied, as suggested by these pastors. There is a curtailing of free exercise of religion, including the important element of congregating together in faith, but these orders only temporarily halt one form of faithful expression and do not stop worshiping. Most faiths have moved online during the lockdown. Just as states can force churches to satisfy building or fire codes, they can bar congregating in churches and temples as public health risks in a pandemic like this one.

The objection from these pastors is not frivolous as there is a substantial curtailment in an expression of faith. But this is not an effort to establish a favored state church. It is content neutral on particular faiths impacted by the limitation on crowd size. Their views are not frivolous, but they are still reckless. Free exercise of religion does not allow dangerous acts, even if they are part of a demonstration of faith. A pastor should not be able to disregard public health limits on congregation size to fight a pandemic threat any more than he can disregard a fire safety threat.

The real issue here may be more about state law. Kansas Attorney General Derek Schmidt declared that “Kansas statute and the Kansas Constitution bill of rights each forbid the governor from criminalizing participation in worship gatherings by executive order.” Kansas law goes beyond the First Amendment in its protections. However, even the Kansas Preservation of Religious Freedom Act allows for a denial of forms of free exercise when based on a compelling state interest and least intrusive means. Schmidt notes that the orders do not stop grocery shopping and other gatherings. But religious services can be supplied online, while grocery shopping for most people continues to take actual visits to the stores.

This Easter will feel different for many of us. Yet the heart of the holiday, both religious and social, has never been stronger or more defining. This pandemic has drawn millions of Americans, believers and nonbelievers, to rediscover faith, family, and other core values. Our separation during this period is part of our sense of obligation to our neighbors as well as to our health care workers in a time of crisis. I am not so sure about Jesus being a coronavirus sufferer, as Awaken Church says, but I know he is a symbol of collective responsibility and of treating others the way you would wish to be treated. This includes protecting others from the spread of a deadly disease, just as you would wish to be protected by them.

The Constitution does not leave the states as mere bystanders forced to watch as pastors such as Tony Spell bus in hundreds of people for church services. Such services are worse than a “suicide pact.” They are a pact to serve potential spreaders. Spell may declare that “true Christians do not mind dying,” but their neighbors might mind a great deal.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

90 thoughts on “Why The Government Can Shut Down Church Gatherings During Pandemics”

  1. Why weren’t our liberties tossed to the side during the aids outbreak? I remember being in high school and them telling us that we would all be dead by year 2000. Talk about a death sentence.

  3. “THERE IS NO NEED TO CHANGE ANYTHING THAT YOU’RE DOING…RIGHT NOW THE RISK IS LOW,…”

    – FOUCHI DOES AN OUCHI!
    _____________________

    February 29, 2020

    Host:

    So Dr. Fauci, it’s Saturday morning in America, people are waking up right now with real concerns about this. They want to go to malls, and movies, maybe the gym, as well. Should we be changing our habits? And if so, how?

    Fauci:

    No. Right now at this moment, there is no need to change anything that you’re doing on a day-by-day basis. Right now the risk is still low, but this could change. I’ve said that many times, even on this program. You’ve got to watch out, because although the risk is low now — you don’t need to change anything you’re doing — when you start to see community spread, this could change, and force you to become much more attentive to doing things that would protect you from spread.

    1. And Fouci has come full circle. Now is again saying that the economic shutdown is more damaging than the virus.

  4. Freedom of Religion does not guarantee a church and pew for everyone. The devout usually just do it on their own using their own bible. The schools and churches offer on line assistance and the hardest part is finding masks (nyc sold all of theirs) and disinfectant spray.

    The hard part is facing facts. NO VIRUS has ever been cured. when it gets threatened it moves inside a living cell and wait’s it out. Then attacks again. You have to kill the host cell to kill the virus. Kinda like getting rid of Socialists claiming to be Democrats. or DINOs claiming to be RINOS

  6. The “normal” flu kills, what?, 60,000 Americans a year. Covid will kill (I posit) 30,000. So…. being the anti-religion zealot that I am: I consider the “normal” flu to be twice as deadly as Covid and, therefore, demand that the Government has every right, NO, every obligation to close down church services every flu season. As CNN would ask: “How many people have to die for your filthy religion”?

    2. Boy was your statement proven to be so wrong. How many people have to die for people to realize the Constitution just does not stand up to 1st) common sense and 2) any State gov’t mandatory rules during a national health pandemic that is for the ‘welfare’ of ‘all’ the people .. that is the main reason the constitution was written .. you need to go not farther than the introductory paragraph. Probably my first stmt is incorrect .. as common sense during this pandemic .. sure seems to have flown out the window for all the protestors.

  7. Not fundamental law but random opinion, that is ochlocracy.

    Professor Turley contends that rights, freedoms and immunities in the Constitution are not absolute and may be denied arbitrarily on the basis of the potential for rights and freedoms to cause bodily injury and/or property damage. Americans must be protected from bodily injury and property damage but there must be “probable cause.” One can’t keep and bear arms to shoot a bad neighbor as the discharge of arms will cause bodily injury. It is known that various types of flu have been causing bodily injury and death for centuries. Currently, the statics show the usual and customary flu is equally as or more lethal than the “Wuhan Flu.”

    “O, what a tangled web we weave when first we practise to deceive!”

    – Sir Walter Scott

    Where do we draw the line in denying constitutional rights? The “Wuhan Flu” is going to kill a certain percentage of the population no matter what “preventive measures” are taken. The “Wuhan Flu” will make multiple passes through America. Many people have contracted and recovered from the “Wuhan Flu” back in October and November of 2019. Many are asymptomatic. Does the right of a few people to be spared exposure deny the constitutional rights of all Americans? Who makes that decision? In fact, the Constitution does not address the denial of constitutional rights other than allowing the arrest of people and the denial of a court date only in a condition of rebellion or invasion. 40,000 people die on highways annually. Many victims of automobile wrecks have absolutely no idea or forewarning, for example, that the whole family is going to die or in a head-on collision on the way to grandma’s house. Does America prohibit driving? We know bad things are going to happen on the highways, right?
    ________________________________________________________________

    There is no rebellion or invasion.

    Article 1, Section 9

    The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
    _______

    People who play with fire know the risks. People who take the risks accept them. People who want to commit suicide must know and accept the “risks.” It is not clear that suicide is unconstitutional or that a law precluding it could or should be written. Cruise ship bookings are up for 2021. People who embark on cruise ships or go to a church full of an infected congregation must have some defective thought process but the remedy for their hazardous acts is specific and particular quarantine.

    Abraham Lincoln was allowed to deny constitutional rights. He gladly seized more and more power, ultimately placing America on the progressive road to communism by first eliminating classes from society per Karl Marx (Marx 1849, Lincoln 1860), Lincoln’s mentor. There is little in the Communist Manifesto that remains to be implemented in America. Central planning, control of the means of production (regulation), redistribution of wealth and social engineering have nullified and replaced the Constitution and Bill of Rights, the communists having succeeded in “fundamentally transforming” those documents. Communism now holds dominion with an iron grip in the United States.

    Threats to the public must be thoroughly quantified – colds and influenza have been discomforting Americans for a very long time.

    Tyrants and dictators will take a mile, given an inch.

    Rights, freedoms and immunities are provided by the Constitution, not denied by the Constitution.

    1. Don’t be confused .. those protesting rules .. stay at home orders or wearing of masks or social distancing to protect the safety of all .. they are not protesting their freedom to live .. the are protesting their freedom to kill people. This pandemic is like no other .. we are over 85,000 deaths in less than 2 months .. anyone wanna guess what the number will be at the end of the year if you stubborn freedom fighters keep doing this to endanger everyone else’s lives. Do you think the laws regarding drinking and driving take away your freedom? .. it’s my car .. my choice .. let me drink and drive .. my feeling .. your life .. #DrunkDriversForTrump .. good grief.

      2. The average age the coronavirus kills people, is 80.
        The average life expectancy is 80.
        How is the virus any more dangerous to the public than old age?

  8. I live in a town in northeastern Kansas — population around 100,000.

    We have four Dillon’s (Kroger), one Hy-Vee, one Sprouts, two Walmart, one Target Super Store and one Checkers. Also a Natural Grocer and a local food co-op called the Merc for the NPR crowd. (Merc is an ancient native American word meaning “to overcharge for no reason.” At any given time there are DOZENS of cars in the parking lots of those stores.

    Attending a church service should not be considered more dangerous than shopping for groceries if those services are handled correctly.

    For instance: if you number the pews and only seat people in odd number pews while maintaining proper distancing that solves one problem.

    Secondly, instead of one service you schedule two or three or more depending on congregation size with spots at each service requiring a reservation.

    I could go on but you get the idea.

    1. Try Mexico. They shut down everything including schools except for a few big chain food stores that can get product but the kids in the schools using their computer based system started going to school on line – on their own.

    2. You need to discontinue hymn singing and handshaking.

  9. The whole thing is a sham. So far, only .17% of Americans have been diagnosed with or tested positive for a virus that in most people is no worse than the common cold. (That’s right, seventeen HUNDREDTHS.) There is ZERO proof that “social distancing” is having any effect whatsoever on the virus, which is caused by CONTACT, not breathing molecules. (The idea that the infection MIGHT be airborne is fairly recent in the history of the outbreak and was originally thought to be very close distancing such as medical personnel leaning over a patient.) The fact is that except for New York City, the number of actual cases in the United States is miniscule. I live in a county that, by all rights, should have tens of thousands of cases because it is (1) diverse, (2) sees wide travel and (3) is in close proximity to the fourth largest metro area in the nation but we have only some 580 reported cases of which more than 60 are recovered, with a dozen deaths (all of which were elderly people with underlying conditions.) Politicians, nearly all Democrats and most either county judges or governors, are using the virus as an excuse to exert powers, the Constitution be damned.


    1. semcgowanjr says:
      April 13, 2020 at 11:43 AM

      The whole thing is a sham. So far, only .17% of Americans have been diagnosed with or tested positive for a virus that in most people is no worse than the common cold. (That’s right, seventeen HUNDREDTHS.) There is ZERO proof that “social distancing” is having any effect whatsoever on the virus, which is caused by CONTACT, not breathing molecules.

      You don’t know what you’re talking about.

    2. Just like AIDS… we heard “the truth” for years, until we didn’t hear it anymore.
      Then we heard more lies.
      Then California said give it to anyone premeditated who cares.

      Now that last line is the one the big lib powers are counting. They have society so divided, we are guaranteed it occurs.
      Thus, the cowards are on the tyranny march.

  10. These churches would convert the free exercise clause into a suicide pact of sorts. The interpretation not only puts the faithful at risk of infection but also their communities. No constitutional rights are truly absolute. Rights such as free exercise of religion and free speech can be overcome with a sufficiently compelling purpose of state and the least restrictive means of achieving that purpose. There is nothing more compelling than battling a pandemic, and limiting gathering size is the only effective deterrent to the coronavirus (Chapel Hill NC/Commie Flu) spreading until a (Bio-Weapon) vaccine can be made available.

    ****

    If I see JT’s opinions correctly, we are now nothing more then Slaves to Commie/Nazis govt’s latest “Compelling Purpose”, Medical Industrial Complex Tyranny.

    And I’m guessing under JT’s & too many others opinion on this issue then George Washington should have shut everything down during the revolutionary war when Small Pox “Panicdemic” broken out in our Army. Should they to been afraid to die?

  11. A certain aspect of born again Christianity thrives on railing against the government for infringement on their ‘right to worship’ as they fit. Always have. Ignorance of public health policy be damned. That will hold true whether they’re talking church services or governmental ability to limit magazine size.

    Maybe the best that could be hoped for is, as in your posting from a week or so back, insurance refused to back the pastors…, let a Covid + outbreak group sue the pastor just as a group of victims at a mass shooting should be able to sue a firearm manufacturer.

    Also, these pastors should be forced to do community service at a local hospital in a Covid + ward. Possibly attendees should get ankle braceleted and fined for leaving the house afterward.

    1. If you’re looking for who to blame for so many ignorant people you only need to look into a mirror.

    1. There exists no rebellion or invasion in America.
      ______________________________________

      Article 1, Section 9

      The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
      ___________

      Merriam-Webster

      INVASION noun

      in·​va·​sion | \ in-ˈvā-zhən
      \
      Definition of invasion

      1 : an act of invading especially : incursion of an army for conquest or plunder
      ______________________________________________________________

      PANDEMIC noun

      pan·​dem·​ic | \ pan-ˈde-mik

      Definition of pandemic (Entry 2 of 2)

      : an outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population : a pandemic outbreak of a disease

      1. You can’t rely on the morons of the modern media age:
        A virus has invaded our lands !
        We are at war with the invisible enemy !
        Our shores have been breached, stench the flow, stop the boat and planes !

        (you see, they get what they want and tell themselves and everyone else it is just)

  13. “Similarly, Pastor Tony Spell of the Life Tabernacle Church in Louisiana was arrested for holding large services. Spell declared his intention to hold large Easter services and insisted that he will never yield to this “dictator law.” Even more chilling was his statement that “true Christians do not mind dying.”
    *******************
    The, of course, there’s Greenville, Mississippi pastor Charles Hamilton, Jr. who invited his flock to a “drive-in” service where he would preaching in an open field and the faithful would stay seated in their cars safe from the deadly virus that kills .66% of those infected. Tut, tut said the Governor. It violates my ̶t̶y̶r̶a̶n̶n̶i̶c̶a̶l̶ executive order and “you’re rights are suspended.”

    1. mespo – the DOJ said they would be looking into these church suppressions.

        1. mespo – I read that the Grand Jury in DC is working overtime. 😉

          1. Paul,

            What was it, DC voted like 95% for Hillary?

            I don’t think there’s a chance in hell the US’s citizens interest being represented by the DC foxes in the citizens hen house.

            Hope so but we’ll .

            1. Oky1 – supposedly they have enough evidence that even DC would have to convict.

                1. Hutom – if you had been following the “real” news, you would agree with me. However, I just know what the FISC has reported, the IG has reported and the new emails Judicial Watch has been getting. I heard they ran the Grand Jury on Good Friday, so they are not wasting time.

    2. Yes, I heard about this one. I live in upstate NY and amazingly, our local drive in theatre had an in car Easter service.

  14. When did Turley become an expert on anything other than law.?
    He certainly doesn’t know the Bible, and his history is a little shaky.
    Pilate had never heard of Christianity at the time of the Last Supper…..nor had the disciples.
    Christianity didn’t begin until after Jesus had been crucifued, and had risen from the dead. Even then, it was years before it was called “Cristianity”.

    1. Turley is Catholic, that’s why. Up until about a half century ago, Catholics were forbidden from interpreting the Bible. Only the priest could interpret it’s words.

    2. Absolutely right, Lucy! At best the followers of Jesus were just the first Reform Jews.

  16. Whether or not any voice in this continuing cacophony makes sense will easily be told by the spike (if any) in virus cases in the 2 weeks following church services. Yes, services will be held despite any governmental edicts, and there will always be those who believe they have the right to holler “fire!” in a crowded theater. Some view this ignorance couched in biblical terms as simply following the edict of “Let them go forth and multiply.”

    1. “Whether or not any voice in this continuing cacophony makes sense will easily be told by the spike (if any) in virus cases in the 2 weeks following church services.”
      *****************************
      You have a keen misunderstanding of immunology to go along with your other deficits on specialized areas of knowledge.

  17. the argument about the Constitution not being a suicide pact isn’t your strongest. People have indeed gone willingly into death to uphold those rights. You say that this would only follow if the danger were limited to the actors. Again I don’t think that WII was limited in any way to the soldiers. Everyone was in danger.

    But weaker still is the false climes you base your main argument on: that “limiting the gathering size is the only effective deterrent to the coronavirus spreading ” I had to read that statement several times to make sure you weren’t quoting someone else. You must be wary of statements that include the word “only.” I defy you to produce scientific or even statistical evidence (not computer models please!) that suporrt that claim. To that end none of the statements made by public health officials are backed by evidence – there is only the shred of evidence that 6 feet is somehow the distance that droplets can extend from one person to another. As a lawyer I think your evaluation of admissible evidence would make you laugh at just about every edict that appears. We have almost 0 evidence for this virus. Fact. It is simply too new. We have not even shown conclusively that it is spread by humans.

    Again the cuirent CDC directives include social distancing of 6 feet, hand washing, and now the comical cotton mask. So your “only ” is inadmissable, Counselor. Ignorance and panic, lack of critical reasoning or reasoning, do NOT constitute “compelling state interest.”

    1. princemyshkin:

      “the argument about the Constitution not being a suicide pact isn’t your strongest.”
      ************************
      You’re right. That was the Declaration of Independence and the bill never came due.

  18. The Kansas Supreme Court opinion does not address the constitutional issue. It never came close. Instead the Court decided the case strictly on a legality that rests with a technical oversight in the law that was intended to give the Kansas Legislative Coordinating Council (LCC) authority to revoke executive orders. I have great respect for Professor Turley but he needs to drill further down on this one.

  19. Kentucky is having cops go to church parking lots to give tickets to people in cars. I think it is unConstitutional and you are wrong on this one Jonathan.

  20. The article is long. Will cut to the chase. If you believe in God and go mass up with others to praise the lard then accept what God hands out to each of you.
    The problem is that these mass goers take the virus home and spread God’s punishment on the rest of us.
    Get it right. God spulled backwards is Dog. Ask your dog. He or she will advise you to stay home and avoid nitwits.

      1. Kansas is distanced from virus people. They won’t let you in if you have a crown on your head.

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