Nancy Lane/The Boston Herald via AP
Adams Square Baptist Church Pastor Kris Casey waves an American flag after opening his church doors for Sunday service on May 3, 2020, in Worcester, Massachusetts, in defiance of a state order.
COVID-19 has been described as a “disease of the vulnerable.” No doubt it has had its most severe impact on the aged, the immunocompromised, and individuals with underlying health conditions, particularly in low-income black and brown communities.
But to the list of the vulnerable we need to add another group: people who trust Donald Trump and others on the right who first told them not to worry about the virus, then promised phony cures, and lately have discouraged them from wearing masks in public and called for them to return to indoor worship in church. Trump has even threatened to “override” governors who limit religious gatherings.
Some people with a philosophy of live-and-let-live—or in this case, live-and-let-die—may believe that the government has no business interfering with religious groups on matters of public health. But religion is not an exemption from generally applicable laws, especially not from laws intended to limit an infectious disease whose spread through a religious gathering won’t stop with the congregation.
Last week, in an article on why indoor religious gatherings present high risks of transmission of COVID-19 (“When Churches Are Superspreaders”), I cited guidelines for communities of faith that had appeared on the website of the Centers for Disease Control on Friday, May 22. The guidelines included a caution that religious groups should “consider suspending or at least decreasing their use of a choir or musical ensembles and congregant singing, chanting, or reciting during services or other programming, if appropriate within the faith tradition. The act of singing may contribute to transmission of Covid-19, possibly through emission of aerosols.”
By the time my article appeared, however, the CDC had eliminated that language from its guidelines, a reversal I described on Twitter on May 27. The following day, Lena H. Sun and Josh Dawsey reported in The Washington Post that the reversal came directly on instructions from the White House.
Sun and Dawsey also reported:
Officials in Vice President Pence’s office, the domestic policy council and other members on the president’s coronavirus task force were resistant to establishing limits on religious institutions even as the CDC issued detailed road maps for reopening other settings, including schools and restaurants, and as the agency warned of the dangers of significant virus transmission rates at religious events.
The resistance to limits on religious gatherings is being promoted with a false narrative that such rules are a form of persecution and discrimination. If not for Chief Justice John Roberts, the Supreme Court might well have reinforced that view and limited states’ regulatory powers.
In a late-night ruling on May 29, Roberts rejected a challenge from a church in California to the state’s safety and health regulations on religious gatherings. The Court’s four liberal members voted with Roberts but did not sign his statement.
The central issue in the case was whether California’s regulations are consistent with the First Amendment’s injunction against any law “prohibiting the free exercise” of religion. Two questions arise about generally applicable laws that affect free exercise.
The first question concerns what constitutes equal treatment under those laws: What, in particular, are the relevant secular comparison groups for deciding whether religious exercise is being treated equally? The second question has to do with the level of constitutional scrutiny used by the courts and how much deference, if any, they owe to other branches of government.
In his ruling, Roberts said California’s rules were consistent with the First Amendment’s “free exercise” clause:
Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods. (emphasis added)
In a dissent, Justice Brett Kavanaugh (joined by Clarence Thomas and Neil Gorsuch) claimed that California’s rules—specifically, its 25 percent occupancy cap on religious worship services—is discriminatory:
… absent a compelling justification (which the State has not offered), the State may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship.
Kavanaugh here was claiming that California needs a “compelling justification” to group indoor religious worship with what Roberts described as “secular gatherings … where large groups of people gather in close proximity for extended periods of time.” In fact, because of choral and congregant singing and other practices, indoor religious worship may be even more likely than many other large, extended gatherings to transmit COVID-19.
But perhaps the key issue separating Roberts from the other conservatives is the kind of justification—whether “compelling” or only reasonable—the Court would require to uphold state public-health measures. Roberts wrote:
Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake [ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.
In other words, judges should not intercede if the state authorities are acting reasonably.
Justice Roberts has often been said to be concerned about the institutional authority of the Supreme Court. Perhaps in this case he recognized that the Court could jeopardize that authority by blocking precautionary public-health measures and contributing to the spread of the pandemic.
And perhaps what is most striking about the resistance to public-health measures by Trump and other right-wingers is that they are not considering the likely political blowback if they succeed in blocking precautionary measures and set off superspreader events in churches.
The coronavirus has not suddenly given up infecting people. It was entirely predictable that metropolitan areas would be hit first because of their international connections, high density, use of public transit, and high-risk minority populations. But America’s rural areas and small towns have large numbers of people in high-risk groups too. What they have fewer of is large-scale, high-density gatherings. But churches in those communities often do bring large numbers of people into close contact—supplying what is otherwise the missing ingredient for the kind of superspreader events that often produce a cascade of infection in a community.
No one knows the future course of the pandemic. But it will be a cruel turn if the Trump administration and religious conservatives ignite the spread of COVID-19 in the exurban and rural areas where they have had the most support. Faith in Trump has become a health risk.
