Wednesday, May 20, 2020

No legal privilege to spread COVID-19

By Mathew Goldstein

Religious freedom is one of our first amendment legal principles. There are multiple different legal principles and they sometimes conflict with each other, which is why they cannot be absolute. Religious freedom is not a shield that protects criminal activity or authorizes harming people. Claiming that God wants you to seize someone’s property is not a valid defense for theft. 

Government stay at home policies that restrict the size of public gatherings, or require wearing face masks, or require maintaining some distance from other people, to protect the health and economic welfare of the local community from a contagious disease are not unconstitutional or tyrannical because they interfere with religious exercise. Many religious worship congregations acknowledge their communal responsibilities and some have moved religious services online. But too many of the governments within the United States have risked the health and economic welfare of their citizens by carving out exemptions for religious institutions so that they can continue to operate while similarly situated non-religious institutions cannot.

Maryland is an example of this. Governor Hogan has declared that “Social, community, recreational, leisure, and sporting gatherings and events of more than 10 people (“large gatherings and events”) are hereby prohibited at all locations and venues”. But he then singled out religious facilities for an exemption (as of May 15), declaring that “ churches, synagogues, mosques, temples, and other similar religious facilities of any faith ... may open to the general public“. Prince George’s County, in contrast, is not discriminating between religious and non-religious facilities. The state and county wording are identical except that the state omits “religious” from its list of gatherings that are limited to ten people. County Executive Angela Alsobrooks declared (as of May 14) “... social, community, spiritual, religious, recreational, leisure, and sporting gatherings and events ("large gatherings and events") of more than 10 people are hereby prohibited at all locations and venues ...”.

Laws designed to protect public health and safety are constitutional when they are applied neutrally, across the board, without favoritism. Thus, if plays, concerts, sporting events, lectures, etc., sponsored by non-religious non-profits are shut down, then religious services may, and should, also be shutdown. A virus doesn’t discriminate between someone reciting a prayer or giving a lecture. Government officials should respond to a non-discriminatory virus with a non-discriminatory policy that similarly restricts all non-essential gatherings, religious and non-religious, or none.

No one likes the current situation. We all want to return as soon as possible to a normal life. Our return to a normal life is being made more difficult by some religious institutions that are resisting bans on large gatherings and by some elected officials who are creating government policies allowIng large gatherings for religious activities that they are unwilling to grant for non-religious activities.

Free exercise offers religious practices additional protection against being victims of government targeting. Judges evaluate whether government actions that interfere with religious practice are doing so incidentally within a context of conducting a properly justified government function, or because of popular or governmental resentments or prejudice against the inconvenienced religion(s). Free exercise should not automatically grant all religious practices an exemption from government policy interference.

Another weakness with these policies is that they tend to be incomplete, specifying only the conditions triggering the phase out of the precautionary policies without specifying the triggering conditions for re-applying the precautionary policies. Contagious diseases exhibit a tendency to wax and wane over time. Weakening a policy that is effective in inhibiting the spread of a disease will tend to hasten the spread of the disease. A good policy to manage a contagious disease would be a better policy if it were defined to self-adjust in both directions.

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