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.