Stanford law professor: Government should not decide whether religious worship is ‘essential’

Written by William C. Duncan

May 28, 2020

“It is none of the state’s business to decide that religious worship is not important.”

-Michael McConnell, director, Constitutional Law Center, Stanford University Law School

Why is this statement so significant?

Michael McConnell, besides directing the Constitutional Law Center at Stanford Law School, is also a former judge on the U.S. Court of Appeals for the 10th Circuit (the region covering Utah).

On May 13, McConnell participated with Archbishop Salvatore Cordileone of the Archdiocese of San Francisco in a fascinating webinar discussion called “The Church, the State and the Pandemic.” The meeting was hosted by the Benedict XVI Institute and moderated by its director, Maggie Gallagher.

The webinar focused on legal restrictions on religious worship enacted during the COVID-19 pandemic.

McConnell’s comment (above) came in the context of his attempt to outline the appropriate rule that should (and that he predicted eventually would) determine the respective roles of church and state in the time of a public health emergency. Specifically:

[T]he state must make sure that it is regulating with respect to comparable risk and not with respect to comparable benefit. It is none of the state’s business to decide that religious worship is not important, it is the state’s business to decide whether particular forms the religious worship might take may be dangerous to public health.

Preventing government overreach

We are used to thinking of the two religion clauses (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) in the First Amendment as separate – one providing protection for religious practice and the other precluding government from endorsing a particular religion, but they are linked by an underlying theme – that churches and the government both have valid, but separate, roles.

McConnell’s point is an example of how this works in the context of the pandemic. The state has a crucial role in protecting public health, but it must confine itself to that role rather than taking on roles that belong to others, like determining what status religious worship will have in a time of significant challenge.

Keeping government in its own lane

We all benefit when the government stays in its own lane and resists the tendency to drift.

For the Framers, other examples were clear – the state must not jail religious dissenters, the new national government could not establish a new Church of the United States. These would prove to be the easy cases.

Sometimes, though, the lanes seem narrow and not as clear. Restricting religious services to protect public health may be an appropriate exercise of a clearly valid role to protect public health. Deeming religious services nonessential is not, but it’s unlikely that state and local governments meant to do so.

It is, however, essential to carefully ensure that government does not drft from its lane and it is heartening that as restrictions begin to ease, we have begun to assess the earlier decisions so we can get everyone back in their own lane.

That is why McConnell’s expertise is so valuable and why it is encouraging that he (and others like him) are sharing it.

Practical application (in a legal context)

What McConnell shared has implications in other contexts as well.

Take a recent decision from the U.S. Court of Appeals for the First Circuit. An immigrant challenged the practice of allowing new citizens to include the phrase “so help me God” in the oath of naturalization. She had been given the options of a private ceremony where the oath is not used or to just not use the phrase in the public ceremony. These options were unsatisfactory to her and (represented by the attorney who had unsuccessfully tried to have the Pledge of Allegiance declared unconstitutional) she sought to have the phrase banned entirely.

As one of the judges explained, her argument was that “the government impermissibly subjected her to a government-endorsed religious message merely by permitting others to complete the citizenship oath in her presence with the words, ‘so help me God.’”

The court declined, holding that because the practice is longstanding and does not discriminate against anyone because of their beliefs, it did not violate the Constitution.

Here the rule is that the government cannot coerce someone to declare a belief, but an individual or group cannot preclude others from doing so. The Constitution, by allowing an oath or an affirmation when the president is sworn in, is a cleaner way of drawing that line, but the importance of staying in respective lanes is what’s essential.

Line drawing, lanes, roles – however we describe the practice, it is essential that we have clarity about who is to decide what in the area of potential church-state conflicts. McConnell’s insight will be a critical foundation for that clarity – government must play its role, and churches must assert theirs.

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