Freedoms, protecting against virus must be balanced
Whether public officials can require churches and other houses of worship to close religious services is an issue that has resulted in significant litigation nationwide in at least 15 states — but not Ohio, where the governor’s orders did not apply to churches. Moreover, in cases from California and Illinois, the Supreme Court refused to overturn such limitations.
As the COVID-19 pandemic sweeps the world, public officials certainly have the authority to take reasonable steps to protect public health and safety. Yet, disagreements have arisen over the reach of government officials because, as U.S. Attorney General William Barr said, “constitutional rights don’t go away in an emergency.”
Questions about the permissible limits of state power when protecting the public welfare have emerged as an order of the mayor of Louisville, Kentucky, classified commercial activities, notably the operation of shopping malls plus drivethrough restaurants and liquor stores, wherein individuals were not complying with social distancing norms, as essential services. Yet, the same order classified church services wherein worshippers sat in their cars with their windows rolled up, observing social distancing guidelines, listening to sermons on their car radios even on Easter Sunday, as nonessential, making them subject to limitations. This situation led a federal judge in Kentucky, striking down the order prohibiting worshippers from parking in church lots to listen to services on their radios, to muse that “if beer is ‘essential,’ so is Easter.”
The key point to keep in mind that is because religious freedom is a fundamental right enshrined in the First Amendment, if public officials wish to restrict believers from exercising their rights, they must demonstrate compelling interests that their policies achieve their goals by the narrowest possible means. This means that governmental limits must go only so far as is necessary to achieve their stated objectives.
Thus, it may be constitutionally permissible for public officials to forbid or limit in-person religious gatherings due to legitimate concerns about preventing the spread of the COVID-19 virus. However, the failure of officials in Kentucky to articulate why activities such as the sales of beer were essential while church services meeting social distancing guidelines, with believers sitting in closed vehicles, were nonessential, rendered this policy unconstitutional.
As state officials carefully balance the public welfare against individual and group constitutional rights, they must do so cautiously because Americans retain interests in reducing the potential for governmental overreaching, especially in times of crisis such as the present. At the same time, Americans
need allow the government to curtail their rights if doing so is necessary to protect the general welfare.
Undoubtedly, most governmental policies aimed at controlling the spread of COVID-19 are constitutionally permissible because they properly balance the general welfare against individuals’ freedom of religion. It is essential, though, to protect the fundamental rights of religious freedom by expecting public officials and the courts, to follow the rule of law in carefully balancing competing interests.
If Americans are not mindful of protecting their individual rights such as religious freedom when balanced against community health interests, what seem to be minor encroachments might imperceptibly creep beyond today’s justifiable limitations to impact other rights such as freedom of speech and assembly. Without vigilance, Americans may find themselves in the position of the proverbial frog in the pot of tepid water who could not jump out before it boiled and cooked the frog to death. If we fail to pay careful attention to the risks we face, we, too, may find ourselves in a place of danger from which it is too late to escape.