By: John Daniel Davidson – thefederalist.com – 22, 2020
On Friday, President Trump said churches and houses of worship are “essential”and called on governors nationwide to allow them to open this weekend. If they don’t, Trump said he would “override” governors, citing forthcoming guidelines from the Centers for Disease Control and Prevention.
In remarks Thursday, the president criticized some governors who have “deemed liquor stores and abortion clinics as essential” but not churches. “It’s not right. So I’m correcting this injustice and calling houses of worship essential.”
Trump is right, but churches are already taking action on their own. This week in Minnesota, thousands of Catholics and Lutherans will gather in their churches in defiance of the governor, whose plan for reopening the state relegates churches and houses of worship to the status of tattoo parlors and hair salons.
It’s about time. Democratic Gov. Tim Walz is plainly violating the Constitution with his order, which limits attendance at religious services to 10 people, inside or outside. Meanwhile, places like Walmart and Home Depot and a host of other types of businesses deemed “essential” by the governor’s office are allowed to operate at half-capacity.
On its face, that’s discrimination against religious exercise, and it’s illegal. Someone should tell Walz that you can’t just issue edicts that treat churches differently than other entities and expect to get away with it.
Minnesota Archbishop Bernard Hebda and Rev. Lucas Woodford, president of the Minnesota South District of the Lutheran Church-Missouri Synod, as well as dozens of smaller evangelical churches across the state, are unquestionably correct in their view that the governor has no authority in law to prevent them from gathering. (These churches, it’s worth noting, plan to comply with all social distancing and other safety guidelines, including limiting their churches to one-third capacity—going above and beyond what’ required for malls and other retail stores.)
Hebda and Woodford aren’t taking this lightly. The Becket Fund for Religious Liberty, a non-profit law firm representing the churches, has noted that the churches have had “extensive correspondence” with the governor’s office in hopes of negotiating a compromise. The decision to open in defiance of the order was made only after those attempts failed.
Eric Rassbach, vice president and senior counsel at Becket, told the Washington Post that the churches are not waiting to file a legal appeal because Walz’s order treats churches unequally and is therefore illegal. “If it’s illegal, you don’t have a duty to follow it,” he said.
Churches In California Also About to Defy Their Governor
Rassbach is right—and the point about unequal treatment is no less true elsewhere in the country than it is in Minnesota. Last week, thousands of pastors in California signed a letter—a “declaration of essentiality”—addressed to Gov. Gavin Newsom declaring their intention to reopen their churches on May 31, with or without the governor’s consent.
Under Newsom’s reopening plan, churches are placed in the same category as hair salons, gyms, and other places deemed to be high-risk. The governor’s office has offered no plausible explanation for why churches are included in this group, likely because there is none.
The California churches have been buoyed by a letter last week issued by the U.S. Department of Justice to Newsom warning that the governor’s planned reopening “facially discriminates against religious exercise. California has not shown why interactions in offices and studios of the entertainment industry, and in-person operations to facilitate nonessential ecommerce, are included on the list as being allowed with social distancing where telework is not practical, while gatherings with social distancing for purposes of religious worship are forbidden, regardless of whether remote worship is practical or not.”
The letter goes on to say that although the Justice Department “does not seek to dictate how States such as California determine what degree of activity and personal interaction should be allowed to protect the safety of their citizens,” it is nevertheless “charged with upholding the Constitution and federal statutory protections for civil rights,” and that, “Whichever level of restrictions you adopt, these civil rights protections mandate equal treatment of persons and activities of a secular and religious nature.”
Religious Freedom Is the Bedrock of U.S. Constitutionalism
Setting aside the fact that broad lockdown orders are no longer constitutionally justified, there’s no excuse for governors and mayors to target religious worshippers as they have from Mississippi to New York City over the course of the pandemic.
That so many governors and mayors have done so betrays a dangerous ignorance, or perhaps indifference, about the place of religious freedom and freedom of conscience in our constitutional system. That indifference is best captured in the infamous line last month from New Jersey’s Democratic Gov. Phil Murphy after he allowed arrests at religious services, that the Bill of Rights is above his “pay grade” and that he “wasn’t thinking of the Bill of Rights when we did this.”
He certainly wasn’t, but he should have been. The Bill of Rights is the bedrock of our system of government. Protecting it and upholding the Constitution is included in the pay grade of every single elected official in the country, from the White House to City Hall.
The right not to be discriminated against because of your religious beliefs, or lack thereof, is indispensable to our civic life, pandemic or not. At the end of Thomas Jefferson’s life, in typical Jeffersonian fashion he designed his own tombstone and wrote his own epitaph: “Author of the Declaration of American Independence / of the Statute of Virginia for Religious Freedom / and Father of the University of Virginia.”
It’s easy to see why Jefferson included the Declaration, which gave birth to a new nation, and the University of Virginia, which was—and is—a monument to his genius. But why include a state statute for religious freedom?
Because Jefferson understood what Walz, Newsom, Murphy and others have forgotten or rejected: that “our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to God.”