Over 1,000 Catholics marched together yesterday to protest laws restricting the amount of people allowed to attend mass in San Francisco, California. The march was lead by Archbishop Salvatore Cordileone and spanned from the City Hall, all the way to the local Cathedral of St. Mary of the Assumption, about one mile away. During their procession, they “sang hymns” and shouted “We are Essential, Free the Mass.” Local Catholics believe their government representatives have failed to treat them equally to other businesses. Churches in California allow 50 people to attend outdoor services and up to 25% of their maximum occupancy to gather inside. Where they believe they are being discriminated against is because of the fact that supermarkets can have as much as 50% of their maximum capacity filled at any one time. Due to this discrepancy, they believe that churches are not being looked upon as “equal under the law” when compared to other organizations. Even “despite the mockery to which we are being subject,” Cordileone urged his fellow Catholics to abide by the law as it stands.
The salient issue that is being called to everyone’s attention with regard to this instance is the free exercise clause of the First Amendment. It states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” People have a right, in this great country, to practice their religion uninhibited, provided that their customs and traditions are not in violation of the law. We know from cases like Sherbert v. Verner and Braunfeld v. Brown that the First Amendment is subject to restriction when considering issues of compelling state interests and public goods. What then constitutes a compelling state interest? The establishment of strict criteria for this phrase has remained elusive in the many cases in which it has been invoked. However, it may be helpful to view this idea within the context of laws that assist in the maintenance of the general wellbeing of the public. In the case of Adell Sherbert, the South Carolina Employment Security Commission discriminated against her for her religious views. It was her duty to keep the Sabbath according to her beliefs as a Seventh Day Adventist and because of this, could not find an employer willing to make an exception for her. She was left without a job and not permitted to collect unemployment benefits. The Supreme Court ultimately ruled that the denial of benefits, for Ms. Sherbert, hindered her ability to freely exercise her religion.
The two questions that came of this case and are pertinent to the current issue of constraints on social gatherings are: Is there a compelling state interest to restrict attendance to mass? If so, what are the least restrictive means to achieve this interest? Is the government being neutral with regard to these restrictions?
A government has an obligation to protect its people from foreign threats. One could certainly argue that an ongoing global pandemic that has resulted in the deaths of nearly one million people should serve as sufficient reasoning for a government to restrict its citizens rights in order to preserve their health. I do not think that there is any question of the fact that the federal government has a compelling interest to protect its people. However, this begs the questions of what constitutes the least restrictive means of doing so. Should people be allowed to meet at all? Should churches only operate at 25% capacity? Why not 10% or 30% or 70%? Are all of these percentages just arbitrary? How about if everyone just wore masks? Why not also make everyone wear gloves? Should you track everyone and mandate testing before they participate in public activities? Where is the line? It does not seem apparent where the buck needs to stop, but what might be helpful is evaluating whether or not everyone is subject to the same laws.
Grocery stores are allowed to operate at 50% capacity. The maximum occupancy of a Walmart is roughly 3,500 people. That would mean that a typical Walmart could have up to 1,750 people in a store at one time, not including employees. They are also open for business every day, including Sunday and have stayed open for up to 24hrs at a time in some locations. The maximum seating of the Cathedral of Saint Mary of the Assumption is 2,400 people. When operating at 25% capacity, they can have around 600 people present in the church. I presume they are open every day to the public and for confession. They likely hold a Vigil on Saturday, and regular mass once or twice on Sunday. From this, we gather that the church is open less often and to less people. Is the government being neutral in its application of the law? Are these restrictions fair? I don’t think so. The only argument left it seems is to propose that church attendance isn’t essential, to which I would offer two rebuttals. The first is that Catholics have an obligation to mass, meaning it is required of all the faithful to attend, given they are able. The second is that violent crime and deaths of despair have seen an acute increase during the countrywide lockdown for COVID-19. Opening up churches is a small provision that may prove helpful in preserving the spiritual and emotional wellbeing of the public.
8 comments:
I agree with your argument that the state does clearly have a compelling interest to protect the public in this case and scenario, so I agree that the primary question is whether or not the state is using the least restrictive means to do so and whether the churches are being treated equally. While I do appreciate your argument that churches are open for less time and allow less people to visit, I believe that this difference is because grocery stores are essential to survival at its purest definition. While important is crucially important to many citizens, I do not think that it can be classed as completely necessary for survival. However, I do agree that it is likely that the state is not using the least restrictive means necessary to protect the citizens. Where I think this could become difficult and scatterbrained and potentially cause a slippery slope is if different churches are treated differently. If Catholics are able to operate at 50%, given they follow other additional precautions, because their faith requires them to attend mass but Jewish synagogues and other Christian religions still only operate at 25%, then there would be the issue of the Establishment Clause benefitting certain religions. Overall, I agree with your argument about the state's interest and that the state is likely not using the least restrictive means, but I hesitate to state that the government is not being completely neutral in its application.
I agree with both of your questions and your assessments thereof in this case. I don't believe, however, that the state should have the ability to restrict churches more than any other public organizations or businesses. Millions of people across this country feel extreme religious obligations to worship in groups with fellow believers regularly, and I am hard pressed to find any situations in which I support limiting this Free Exercise. A pandemic certainly may be one of these situations, but it would be equally offensive to relatively limit religious gatherings to me, as it would be to stop them entirely in times of peace.
I agree with the argument that the compelling state interest to protect the public in terms of health and safety is enough to serve as sufficient reasoning to restrict its citizens rights. As the Reynolds v. United States case has established in the past, the right to freely exercise is not absolute if it in any way infringes upon the peace and order of society. Part of keeping peace and order within any society is through protecting the health and safety of its citizens, first and foremost, by protecting them from danger and death.
I would only disagree with you in part in regards to the question of whether or not churches are essential. Though my concern about what is essential is specific to churches in this case, the reasons I hold can be used to challenge other types of businesses that the government deems essential. I do not hold this belief in specifically targeting religion or churches- I feel as though the government needs to set a better standard for what should constitute essential businesses. If we consider the idea of essential services to be basic survival needs of people, that should simply include provisions for food, water, shelter, and medical care. I would even go so far as to challenge the ideas that restaurants and liquor stores (which is considered essential everywhere but Pennsylvania) should not be considered essential businesses as those types of business as the safety concerns outweigh the essential needs of the business.
The idea of what is essential and what is not is very confusing especially when it comes to religious institutions. Now, for this particular case all one has to do is make the argument about why Mass is essential for Catholics and whether limiting or closing the churches goes against a Catholics religious freedom. Catholics are obligated to go to Mass every Sunday. However, if they are in a situation such as a pandemic where they are legally forced to be closed or limited then they may be excused for that week. It is certainly an essential for Catholics to go to Mass, but in the most literal term of bodily survival it may not be seen that way. I would then ask, why is it essential for grocery stores to continue to sell non-essentials such as flowers or gum and churches cannot be open for mass? To answer Dom's question; Churches are not treated equal under the law.
While I understand where Ariel is coming from in her comment, I fall more into agreement with Seth on the basis that classifying a church as "non-essential" is unconstitutional. While the case can be made that grocery stores carry items such as food/water/supplies which physically sustain a person, it seems like a conflict of limiting free exercise to decide for an individual that in-person worship is unnecessary to their life. That being said, if the churches want to be treated like other businesses, I find them more similar to restaurants, COVID safety-wise; both patrons are sitting at long lengths of time in the same room as other customers. However, in Southern California, restaurants are only allowed 25% indoor dining capacity; in Northern California, the location of the church, indoor dining is not permitted at all. For these reasons, I think expecting to function at 50% is too high of an ask, and unrealistic for them to expect.
I agree with your assessment of the questions posed by this case and the compelling state interest present here. I do not, however, agree with how you equated the potential risk of exposure in church to shopping at a grocery store. Those two activities are fundamentally different both in the level of exposure and in their function to society. I think instead you could make the case that if protests are allowed, where individuals are probably yelling and interacting in a large group, as you described in the beginning of your post, then how is church different?
In regards to where we draw the line, I agree that this raises many questions, but if the courts and the government decide that the church services are permissible, would the state then not be able to regulate mask wearing at these services? Or social distancing? If the state's interest in preventing the spread of Coronavirus does not allow them to bar indoor services than how much liberty do these churches have and what CAN the state regulate in regards to religion?
I agree with many of Dominic's points and with his overall assertion in the case. This case is not one that is isolated to this particular case, it is a case which is actually up for debate in almost all states with various churches and places of religion. The overwhelming problem with this pandemic and its subsequent closings is that the first amendment of many citizens in this country is being trumped by the state and nations obligation to not only controlling the virus, but also protecting the virus and those at risk and even those not at direct risk of the virus. The country has had to decide whether protecting its citizens trumps the first amendment right that all individuals have within this country.
The real question for me is less if their free exercise is being restricted and more if there is an appropriate argument for religious groups to get an exception, and that's where I can agree with your points about the compelling state interest in enforcing a restriction upon church capacity. Their free exercise is being restricted, there's no question, but the government interest in restricting that free exercise is so important that it's a necessary sacrifice. I do have to break with you when it comes to reopening churches. While for an individual it can be judged as a personally essential weekly ritual, it does not serve a general public good in the same way that a grocery store does, or a gas station. The label of being essential is tied to the functionality of our society; does this given thing make our society run in its most barebones capacity. And while the first amendment does guarantee the free exercise of religion, the government does have the authority to restrict that free exercise in the face of a compelling state interest, and since that interest is urgent, there is no reason that I can find for an exception. They're not saying that a Catholic can't have mass, they just have to change the way it's done. Why can't a congregation meet virtually? Why can there not be an alternative form of worship?
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