April 30, 2020
The COVID-19 pandemic is, as many are saying, a stress test. It is placing stress on many sectors of the economy, families, civic institutions and even the very foundations of American freedom, including the rule of law and religious freedom.
In a medical context, a stress test examines the function of the heart while experiencing stress (typically induced through physical activity) to help doctors and patients learn about health problems and suggest solutions.
The comparison of a stress test to the novel coronavirus pandemic makes sense. Many aspects of society are being asked to function under stressful conditions, and we are learning something about our health in the process.
How well, for instance, are the basic principles of civics working? When restrictions were being put in place, Sutherland pointed to an important principle: the consent of the governed. Stringent social distancing guidelines adopted by many states and communities appeared to have the consent of the governed – people largely adapted their lives to meet the restrictions.
Citizens are more likely to consent to government directions if they believe these have been decided on consistent with the general principle of the rule of law. When we say we are governed by the rule of law, we typically mean that government decisions are made consistent with pre-established conventions rather than being arbitrary edicts from a single person or group.
Our sense that we are being protected by the principle of the rule of law is enhanced when we perceive that government rules are reasonable and consistent, that their application is predictable, and that there is accountability for those who make them.
Let’s examine one example of how the rule of law has been tested by pandemic conditions: the strain caused by limitations on religious gatherings.
There have been some highlighted instances of religious groups dissenting from the general pattern of acceptance of the pandemic restrictions.
Most faiths appear to have adapted to restrictions out of a sincere concern for public health, but some pastors and parishioners are as concerned about their spiritual health as their physical health. They feel that freedom to attend worship services is essential, especially during a stressful time.
Perhaps the anger comes not so much from skepticism about risks, but from skepticism about the rule-makers, or a sense that the rule of law is not properly working.
The entire enterprise of dividing businesses into essential and nonessential can have the same problem.
Worship services may be labeled as “nonessential” when that is not how people of faith see them. Faith is essential. It is critical for sustaining adherents in challenging times and in motivating acts of service and good citizenship, including pandemic relief efforts.
Of course, there are some jobs that clearly are essential and few would argue with allowing their workers to continue, but without clear communication of the rationale for them, the division can create a perception of inconsistency and unpredictability.
So, for example, it can be galling for people of faith to see tattoo parlors, bars, liquor stores and abortion clinics still operating as “essential businesses,” when the nurture of their spiritual well-being has been deemed “nonessential.” This differential treatment, even backed by a rationale, raises the specter of inconsistent application or of unpredictability.
The other challenge is that perceptions of fairness are not limited to the literal details of a particular directive. For example, citizens could accept, in theory, the need for public health regulations. But they may bristle at them because of a perception that during prior controversies, they were treated in a high-handed way.
Those who feel that religious freedom is threatened by regulations like the contraception mandate might be inclined to see a restriction on gathering as unfair to believers. Not so much because of the restrictions themselves, but because of suspicion that they are likely to be singled out for unfavorable treatment based on past experience.
The pandemic “stress test” of the principle of the rule of law as applied in the context of religious gatherings points to some lessons for government:
- clear explanations for promulgated rules are essential
- government must be sensitive to others’ perceptions of consistency, along with their own views of consistency
- simplistic labeling (i.e., essential or nonessential) encourages suspicion of arbitrariness
Much of what we are learning through the pandemic experience can be positive, but we must also let these kinds of lessons sink in and change how the government functions going forward. The ability to properly mitigate the current pandemic – as well as any future iteration – may depend upon it.
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