There are several religious freedom issues in our responses to the Coronavirus pandemic. One is restricting access for chaplains, among others, to health care facilities and homes for the elderly, but the most contentious issue has been some governments outright bans on most religious gatherings, as in the U.K., or restrictions to groups of less than ten people. In South Korea, over half the cases are connected to the semi-cultic Shincheonji Church of Jesus, and hundreds of Protestant churches held services last Sunday despite government orders against large public gatherings.
Some have argued that such restrictions are a violation of religious freedom, while others have argued that they are responsible and legitimate government action. I believe that both positions are, or can be, correct.
ARE THESE RESTRICTIONS LIMITS ON RELIGIOUS FREEDOM?
On the first issue, whether these are restrictions on religious freedom, we can define such freedom in two (very probably many more) ways. One is to define religious freedom normatively as a freedom that, like all freedoms, is inherently subject to many restrictions—such as others’ rights to life or health. Here religious freedom is defined as a freedom that is, like all others, necessarily restricted by other freedoms, and also by the duties that we all must follow.
This is similar to the position taken in Article 18 of the International Covenant on Civil and Political Rights where “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”
Such limits are often misused by authoritarian governments as a pretext for repression, but this does not mean that they are in themselves wrong. Every right is always related to other rights and may be balanced by them. If we take this approach, and if we believe that most current democratic governments’ actions are proper, then we would conclude that restricting larger religious gatherings does not violate religious freedom,
An alternative is to define religious freedom in very broad terms without including any possible restrictions in the definition. But we could then add that religious freedom may legitimately be restricted in certain circumstances but that we need to call a spade a spade and call these restrictions what they are: actual (if justifiable) limits on religious liberty.[i]
In the first position, we would say that if government actions are proper then the result it is not a real restriction of religious freedom. In the second position we would say they are restrictions on religious freedom but that they are justifiable ones.
There are risks in each of these positions but they often lead to the same practical conclusion, and many of the differences may be largely semantic. Here, the major need is to be clear about what we actually mean: several of our disputes about religious freedom stem simply from using the term in these different ways.
ARE THESE GOVERNMENT RESTRICTIONS LEGITIMATE?
On the second matter, about whether government action is legitimate, the key question is not whether such restrictions limit religious freedom per se, but whether these restrictions are just, proper, and constitutional.
Those who object to enforced government restrictions usually maintain that they assert the power of the state over the church, and other religious bodies, and are therefore both normatively wrong and, in America, violate the First Amendment.
However, churches and states are nearly always and inevitably intertwined. In the U.S. people often use the non-constitutional metaphor of “the separation of church and state” as shorthand for the First Amendment itself, and usually as a simple if naïve restatement of the respective different authorities of these bodies, ultimately reflecting Pope Gelasius’ description of the two swords in his 494 AD letter to the Emperor Anastasius:
“There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power…. If the ministers of religion, recognizing the supremacy granted you from heaven in matters affecting the public order, obey your laws, lest otherwise they might obstruct the course of secular affairs by irrelevant considerations, with what readiness should you not yield them obedience to whom is assigned the dispensing of the sacred mysteries of religion.”
But at times the loaded word “separation” is taken in a literal sense to mean that these two bodies can somehow be sealed off from one another, and neither has any authority over the other. But church and state are not two atoms that never touch: they interact with each other according to their own jurisdiction. As Gelasius noted, the emperor has supremacy in temporal matters, which members of the church should follow, and the church has authority in the “sacred mysteries of religion,” which the emperor should follow.
Each has authority according to their respective missions. For example, churches have criticized and denied communion to politicians who they believe are violating church teachings, and it is not, so far, in dispute that a church can decide for itself who may receive communion. This is an authority over politicians: not the power of the sword but a discipline over the sacraments. Our secular age may regard this as minor opprobrium, but many politicians with eyes on polls may take it more seriously. It is the power not of the sword but of the word.
On the other side, a government may legitimately close buildings, including church buildings, if a fire marshal properly pronounces the structure unsafe. Even in actually constructing church buildings, churches do and must follow government fire and building codes. They accept proper government restrictions on the nature of their sanctuary.
Church and state have a legitimate authority over each other in their respective spheres as long as they do not seek to usurp the proper role of the other. A church cannot try to take over governmental power or use physical coercion. A government cannot dictate a church’s doctrine or mission.
Governments internationally, and federally within the U.S., have imposed widely varying restrictions, and there certainly can be arguments about the range and prudence in each particular case. But, as a matter of principle, I believe that in western democracies most of the disputed government actions around the coronavirus are necessary ones, somewhat like the fire marshal writ large. Such restrictions are for a limited time, even if we do not now know what that time limit is. They also do not single out the church—these are rules to be applied to almost any gathering. And they do not seek to usurp church teachings or mission.
Each individual case needs prudential judgement but, in principle, I believe that restrictions on religious gatherings are legitimate government actions, and that churches and others should as a matter of conscience comply with them.
Paul Marshall is Wilson Professor of Religious Freedom at Baylor University, a senior fellow at the Hudson Institute and the Religious Freedom Institute, and a contributing editor of Providence.
[i] Article 18 of the International Covenant on Civil and Political Rights can be read to support this position also.
Comment by JR on March 26, 2020 at 3:13 pm
These bans are not on ‘religious gatherings’.
They are on gatherings, period. In the US, that would be the right of assembly being impacted.
None of this – NONE of this – is targeted against religion, and none of it is treating religion any different than any other gathering (like a sporting event).
You’ve gone off the rails here.
The government edicts are agnostic in their application.
That first link, from the BBC? Religion isn’t even mentioned – not even as a case example of a gathering.
Comment by paul on March 26, 2020 at 5:53 pm
I’m puzzled. As far as can see you are agreeing with me that the restrictions are proper and “do not single out the church—these are rules to be applied to almost any gathering.” But you seem to think you are disagreeing.
Also, the BBC article refers to bans “including weddings, baptisms and other ceremonies” Most weddings and all baptisms are religious (you need to scan down below the break)
Comment by Bright Bazuaye on March 28, 2020 at 1:10 pm
The ban is not on religious freedom. I agree with you. The need to safeguard public health informed the ban. The restrictions would have been problematic if it was selective. Religious freedom is guaranteed in most constitutions and pertinent international instruments. As with other freedoms they come with limitations. In an emergency the limitations are very important pending a return to normalcy. Going by the reactions so far, it would appear that states have successfully appealed to the sensibilities of many religious leaders, who have accepted the reality of the existential pandemic. Clearly, in the face of religious freedom possible backlash states can reason with religious organizations and leaders towards arriving at what would be in the best interest of all.
Comment by Bradford Fisher, esquire on March 27, 2020 at 12:38 pm
These restrictions are an obvious impact upon the “Free exercise of religion”. Although there is a U.S. Supreme Court case which held that “Laws of neutral application may be applied to churches without violating religious freedom” (such as building codes, making Peyote illegal, etc. and thus need only a “rational basis”, the Religious Freedom Restoration Act and STATE Constitutional guarantees (these restrictions occur under state authority) are still “compelling government interest” by the “least restrictive means.” While the restrictions could be justified short-term– such as in a hurricane, or with downed powerlines, or a war zone– their justification rapidly diminishes the longer it goes on. Free exercise of religion is not limited to “Freedom to Worship”, and gathering as a group is a central tenant of most faiths. It is also not clear that a flat ban on religious gatherings is the “least restrictive means” to avoid spread of the COVID-19 virus, particularly when it is unclera what the actual penetration rate of the virus is, or its mortality rate, and so on. The burden is on the government to justify applying laws such as this one to religious gatherings, not the faith to explain why gathering is “necessary.”
You’re also asking for civil unrest and disobedience at some point.
Comment by Bright Bazuaye on March 28, 2020 at 12:33 pm
Religion comes first in the lifestyle of many. Normatively, its vitality and utility is enduring. Nevertheless, overriding public interest has its place and cannot and should not be ignored in the face of a pandemic. Religious freedom would continue to hold sway, and should only be circumscribed in times of crises. It is important to note that religious activities blossoms after a return of normalcy. For normalcy restores confidence, particularly when restriction on the freedom is a reflection of the common good. In the the face of Covid 19, this is salutary. Not to be ignored is place of modern state. The state is for all religions, and should determine the common good in my humble opinion.
Comment by Diane on March 29, 2020 at 12:50 am
Ah, the right to practice one’s religion. Most of the churches in my community are not having in-person worship or gatherings.
The most powerful witness to the ongoing practice of religion, however, is right before our eyes – among those sewing diy face masks for healthcare providers, shopping and checking in with the elderly and homebound, contributing to food banks. And first responders and healthcare providers who are putting their lives on the line are practicing true religion! Who says we’re restricted or denied our practice of religion? We might not gather in person, but we can still practice religion.
Personal story: Only four are reported as testing positive for COVID-19 in my small southern community. I personally know two of them – a lesbian couple who’ve returned from a cruise. No one who practices religion in this town through regular gathering in a pretty church has reached out in ministry to them. Now that this couple is quarantined in their home, it’s been lgbtq folks (who don’t have a church home, but certainly have Jesus) who are grocery shopping for the couple and leaving the groceries on their steps, preparing meals for them & leaving them at the door, running to the pharmacy and delivering their meds,
contacting them daily to learn their needs, offering love, companionship, thoughts and prayers.
The government can rightly limit religious assembly during a pandemic – but the government can’t limit God. God will be where God will be. The practice of religion is in the eye of the beholder as we serve one another. Good time for all of us to discern “who is my neighbor?” and whether our religiosity has caused us to pass by those whom our “religion” self-righteously condemns?
Let us not think we can’t practice religion in a pandemic. It’s quite possible to practice religion without gathering together in person.
Comment by Kevin on April 9, 2020 at 10:30 am
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.