Freedom of the church will need urgent attention
May 14, 2020
It is a great hardship that currently most Catholics cannot attend Mass in person and receive the Eucharist. Some of my friends, frustrated with laws restricting public gatherings, have asked: Doesn’t the First Amendment protect religious freedom? Why don’t church leaders file suit against these unconstitutional laws?
One answer is that church leaders themselves are rightly concerned about the life and health of their flock, including members who are especially vulnerable to the deadly potential of COVID-19. Precautions are justified by respect for human life, even if the civil law did not require them.
But there is also a legal answer. It’s important to understand this, so we’ll realize how precarious is our hold on what the U.S. bishops have called “our first, most cherished liberty.”
The First Amendment to our Constitution, rejecting laws that prohibit free exercise of religion, has often been interpreted broadly by our Supreme Court: A religious exemption from a government policy should be allowed unless the policy serves a compelling governmental interest – a difficult test to meet – and that interest cannot be advanced in a way that infringes less on religion.
That changed in 1990, with the case of Employment Division v. Smith. Smith was denied unemployment benefits after being fired by the state of Oregon for “misconduct,” namely for using peyote, a small, spineless cactus with hallucinogenic properties. He filed suit, claiming that his use of the illegal drug was part of a religious ritual of the Native American Church.
Ruling against Smith, the court weakened some past interpretations of the First Amendment: Laws cannot specifically attack religion, but they need not exempt religious behavior from neutral laws applying to everyone that serve a legitimate governmental interest, a relatively easy test to meet.
Ironically, the majority opinion was written by Justice Antonin Scalia, a devout Catholic. He warned that allowing each person to be “a law unto himself” would lead to “anarchy.”
There was a backlash against this ruling. In 1993, Congress overwhelmingly approved the Religious Freedom Restoration Act and President Bill Clinton signed it into law. As its name implies, it restored an earlier strict test for overriding a religious objection. (The Supreme Court had not forbidden lawmakers to enact stronger protection for religion than the Constitution requires.) But the Supreme Court later ruled that this federal law applies only to federal policies, not state or local laws.
Thus a state policy equally restricting both secular and religious gatherings, to serve a legitimate state interest like public health, is very likely to withstand constitutional scrutiny. A law that prohibited church gatherings while allowing comparable gatherings at sports arenas, theaters and such would be another story.
States can pass their own laws like the 1993 federal law. And we can hope for a richer understanding of religious freedom by our judges. Some Supreme Court decisions have given great deference to that freedom when its exercise involves another fundamental right, like freedom of speech or freedom of association.
And some Supreme Court justices have acknowledged that religious bodies deserve especially strong protection as “critical buffers between individuals and the power of the state.”
What the Second Vatican Council’s Declaration on Religious Freedom called “the freedom of the church” – its right and obligation to call people to a higher moral authority than government can claim – deserves more recognition in our laws.
When the need to protect life and health from the coronavirus becomes less of a public health emergency, vigilance in defense of that freedom will need renewed and urgent attention.
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.