By Kristen Waggoner
One could forgive any mayor for being frustrated with those putting the health of others in jeopardy by refusing to engage in social distancing during this global pandemic. But, at a press conference Friday, New York City Mayor Bill de Blasio singled out churches and synagogues, threatening to “permanently” close them if they hold a worship service and don’t disperse.
If the mayor’s threat was a careless exaggeration, he should formally clarify that he will not seek to “permanently” close churches and synagogues. He should also ensure the city applies the same rules to everyone rather than create the impression he has an axe to grind against religious congregations. Otherwise, his threat was both cruel and unconstitutional.
The response to this epidemic has required sacrifices from us all. For many, these efforts have led to social isolation because of the widespread cancelation of the social gatherings that bring joy to life. And for some, regular attendance at religious services doesn’t only bring joy, it also serves as an important component of religious practice. It’s far more than a chance to see friends or have a good time.
In times like these, we must insist that government officials put aside political, ideological and religious differences and work together for the common good. After all, faith helps us weather times like these, and in countless denominations, churches have found resourceful ways to continue to preach and live out the Gospel, spreading love and hope to their communities and to those most in need, without physically gathering.
There are stories of pastors conducting drive-in church services, priests hearing drive-thru confessions, and youth groups delivering groceries and supplies to vulnerable people in self-isolation. Whether by livestreaming religious services, practicing social distancing, or canceling or limiting the size of some gatherings, many churches are doing their part.
Government officials are doing their part when they act to protect their citizens while informed by caution. Churches have willingly cooperated with federal, state and local governments in working to slow the spread of the virus, but officials should not mistake this cooperation for the notion that the free exercise of religion is a right of convenience or a luxury only enjoyed during good times. It’s a fundamental right, necessary to our nation’s life and health, which is why our Constitution’s framers carved out special protections for religion and freedom for churches and synagogues.
The Constitution requires officials to exercise great caution when they attempt to regulate or restrict these freedoms. Our laws ensure that governments only limit religious free exercise for a “compelling interest” of the “highest order,” and even then, only if they do it with the “least restrictive means.” That means, even if the government is taking strong action for an exceptionally important reason, it cannot restrict more religious exercise than necessary to achieve its compelling goal.
That may mean restricting the size of some gatherings in the hardest-hit areas, while merely adding extra precautions in areas where the virus has not widely spread or has nearly subsided. But the U.S. Supreme Court has clarified that governments can never target or specifically disfavor religious entities. And courts will look to whether the government is evenly applying its regulations to everyone when weighing the constitutionality of a government’s actions.
This is why de Blasio’s recent comments should trouble everyone. The organization where I work, Alliance Defending Freedom, advises churches to act prudently in these difficult times. We applaud government officials who have affirmatively recognized that churches need the flexibility to continue their ministry in safe and sensible ways. But we are concerned when government officials go further than necessary.
Neither de Blasio nor any other officials have the constitutional authority to permanently close churches and synagogues. The government cannot permanently ban the practice of fundamental rights — the freedom to exercise religion included. Every one of us has the responsibility to contain the spread of this virus. But using a crisis to permanently curtail religious freedom is unconscionably cruel and does nothing but harm our communities. We must respect the latitude that the Constitution affords religious institutions and not only permit, but encourage, them to help distribute food and care to those who need it most. We need them open, not closed.
Waggoner is senior vice president of U.S. legal division for Alliance Defending Freedom.
This piece was originally published on March 31, 2020 at NYDailyNews.com. It has been republished with Ms. Waggoner’s permission.