January 12, 2021
As the pandemic restrictions were just settling in, Sutherland noted that the situation was an important “stress test” for how the government would treat fundamental rights, like religious exercise. Now that there appears to be light at the end of the tunnel – though still a ways away – what are the preliminary test results?
Religion is essential to well-being
The first lesson is that the division of activities into essential and nonessential is not a helpful approach, and that lesson seems to have been learned. It is rare to hear that distinction anymore. Religious groups and people of faith have repeatedly noted that some services that hardly seem essential in the sense of sustaining life (tattoo parlors, alcohol stores) were permitted while religious services were banned or severely limited.
Most Americans recognize that religious belief and practice are an important part of individual identity. Designating the practices associated with that identity as nonessential is tone deaf at best and offensive at worst. Far more productive is a focus on specific risks associated with particular activities.
Religious freedom demands consistent treatment
The second lesson is related to the first. Not only is religion essential, but the Constitution does not allow the government to treat it as a second-rate interest. A common theme in the judicial opinions on pandemic restrictions on religious practice was the disparate treatment of religion and other activities.
A recent illustration is a decision by the U.S. Court of Appeals for the Sixth Circuit on the closure of parochial schools. The brief opinion enjoined, or prohibited, an Ohio county’s resolution closing all schools. The court’s description highlights inequitable treatment:
On November 25, 2020, the defendant in this case, the Toledo-Lucas County Health Department, issued a resolution closing every school in the county—public, private, and more to the point here, parochial—for grades 7-12, effective December 4. The shutdown’s purpose was to slow the spread of COVID-19. Yet—in the same county—gyms, tanning salons, office buildings, and a large casino have remained open.
The question for the court was “whether the Resolution here treats the [religious] schools less favorably than it does ‘comparable secular facilities.’” Its conclusion was that it did: “In Lucas County, the plaintiffs’ schools are closed, while gyms, tanning salons, office buildings, and the Hollywood Casino remain open. … The Resolution’s restrictions therefore impose greater burdens on the plaintiffs’ conduct than on secular conduct.”
This was also a critical component of the U.S. Supreme Court decision to invalidate New York’s severe restrictions on religious gatherings in New York City.
Even governments can use humility
Finally, government (and all of us) could learn something important from religion – the importance of humility. The nature of the pandemic meant that understanding how the infection was spread and risks of different activities evolved and changed over time. This made categorical statements risky, but unfortunately, not rare.
The need for humility in this type of policymaking environment is obvious. The simplest manifestation would be transparency. When government leaders acknowledge that they are acting on the best information they have while admitting that the information is necessarily provisional, they create trust and make restrictions easier to accept. Indeed, the vast majority of religious groups accepted limitations and acted as good citizens by making adjustments to worship services and by providing critical social services to those affected (in one survey, 81% said their congregations had made modifications or closed altogether in response to the pandemic).
Perhaps government leaders want to speak emphatically so citizens recognize how serious the pandemic is. The risk of overstating, though, is that if those strong claims turn out to be unwarranted, trust in all statements may be undermined.
Another manifestation of humility is trying to understand needs that are not apparent. Some of the most extreme restrictions on religious gatherings seemed to be based on the premise that services could all be moved online. That is true for some religious traditions, but for those who believe tangible sacraments are a critical part of the service, online services were not an appropriate substitute. Government leaders need to be open to learning about and responsive to unique circumstances, particularly of minority faiths.
Transitioning from the “stress test” to the “new normal”
A phrase that is likely to come up with increasing frequency now is “a new normal.” This reflects the period when we try to incorporate lessons learned from the test to a changed context. The new normal for the government’s treatment of religious practice needs to implement the lessons learned in the pandemic stress test.
Religious practice is essential to personal and community well-being. Religious practice should never be treated as less important than other activities. Restrictions should be based on identifiable risks rather than administrative convenience. Policymakers need to be transparent and sensitive in an environment of evolving understanding of risks and needs. If citizens and policymakers apply these lessons moving forward, we will have passed this test of the pandemic.
The basic aim of the Equality Act would be to add two new categories – sexual orientation and gender identity – to the protections of these earlier laws. Isn’t this already the law, though? The answer is … sort of.
Free discussion is key to a functioning republic. And free discussion is often enabled and disseminated through media, so long as freedom of the press is alive and well.
We believe this is an ideal approach to implementing these important measures as it would do so without unnecessarily dictating specifics to the Board of Higher Education or the state’s institutions of higher education.