It is rare that the Constitution affords people an absolute right. I tell this to my students when I am introducing the “free exercise” of religion clause because it is one of those rights. Well, sort of.
Under the “free exercise” clause, people have an absolute right to believe whatever they want. I illustrate this with my students by grabbing the nearest object (usually my trusty white board eraser) and telling them that I have an absolute right to believe that the object is God. As long as it is just a thought and is wholly within my head, I can believe this and the government cannot legally stop me from doing so.
Now, what if the eraser-god started to tell me to do things? Let’s say it tells me to take my classroom scissors and cut off my students’ hair as a sacrifice to celebrate the great nothingness that my benevolent eraser-lord provides. The government should still leave me alone, up to the point when I pick up the scissors with the intent of snipping some hair. This is because, while freedom of belief is an absolute right, freedom of practice is not.
So, like most rights, the courts have held that religious practice can be limited, but of course determining when religious practice should be limited can be difficult terrain to navigate.
In many “free exercise” cases, the issue comes down to whether it is more important to protect the right to practice religion or whether it is more important to protect others who might be affected by that practice. In other words, my freedom to practice my religion extends up to the point that your (or my students’ in my example) rights are infringed.
This brings me to the recent decision by the Supreme Court in Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York. The case stems from an executive order made by Cuomo in New York that limited attendance at religious services depending on the severity of the pandemic in that area.
For example, in “red” zones (worst areas of COVID-19 spread), only 10 people could attend live religious services, while in “yellow” zones up to 50% of usual capacity is allowed. The court had to decide whether this policy is an unfair intrusion upon religious practice, or a policy that is necessary to protect the health of the community.
The majority held that the executive order infringed too much on the right to practice religion. In his concurring opinion, Justice Neil Gorsuch said, “Government is not free to disregard the First Amendment in times of crisis . . . unless they are pursuing a compelling interest and using the least restrictive means.” Here, Justice Gorsuch stated the test often applied by the courts for similar questions. Is the reason that religious practice is being limited good enough, or “compelling,” and if so, is the policy the best way to accomplish the goal with the smallest intrusion (“least restrictive”) on the religious practice?
In her dissent, Justice Sonia Sotomayor argued that there is a compelling reason and that reason is to stop the spread of COVID-19. She also argued that restricting the number of people is necessary because of the nature of religious services. These typically involve speaking and singing in groups, which has been shown to spread this airborne virus. In the end, she would rather health officials decide what steps are necessary to contain the virus as she stated, “Justices of this Court play a deadly game in second guessing the expert judgment of health officials.”
It strikes me that both Justice Gorsuch and Justice Sotomayor are trying to protect religious communities. Gorsuch is most concerned about protecting the right of those communities to gather to conduct religious rituals together. Sotomayor is concerned for the health and safety of that same group of people.
So, we have a decision from the court on this one policy in New York, but what does that mean for religious services going forward?
I teach my students that understanding and following the law is crucial for a stable and functioning society. However, we should not always expect the law to be a complete guide for all societal issues. For example, I have previously written about civic virtue, which is the idea that sometimes you should work for the good of society even if not directed to do so by the government and even if there is individual cost.
People of faith benefit tremendously from being part of a community. Thinking about what that means, and how we as members can best preserve it during a pandemic, is challenging, as the opinions of Justice Gorsuch and Justice Sotomayor demonstrate. Even so, I hope we don’t need to wait for a governor or a court to tell us that we should do our best to protect the other members of such a cherished community.
I think, perhaps, religion itself might be a good guide here. I am no religious scholar, but I believe that most, if not all, major religions embrace the concept that you should do right by your neighbor.
In the Gospel of Matthew is the famous phrase “Love thy neighbor as thyself.” The Dalai Lama has said, “If you can, help others; if you cannot do that, at least do not harm them.” The Quran quotes the Prophet as saying, “There shall be no infliction of harm on oneself or others.” Judaism tells us “whatever you wish that others would do to you, do also to them.”
In the end, regardless of how the government approaches the practice of religion during this pandemic, I hope you will have the good of your community in mind. Perhaps it will comfort you to remember that whatever changes are made to your religious practice, it will not change your faith or your beliefs. You have an absolute right to them and they will remain your own.
(Dan Marcus teaches Civics at John Stark Regional High School. He lives in Concord.)