Paul L. Caron

Sunday, May 17, 2020

If Liquor Stores Are Essential, Why Isn’t Church?

New York Times op-ed:  If Liquor Stores Are Essential, Why Isn’t Church?, by Michael McConnell (Stanford) & Max Raskin (NYU):

CoronavirusChurches and synagogues were tragically empty [last month], among the holiest days of the year for America’s Christians and Jews. With few exceptions, the nation’s faithful found solace via computer screens and in solitary prayer, acquiescing to restrictions on their constitutional liberty that would have seemed unthinkable a few months ago.

But many are asking: How long must this go on? America was founded in no small part so that people of every creed and conviction could worship without hindrance, in accordance with conscience and tradition. ...

[I]n the days ahead, religious leaders and public health officials will need to find new ways to deal with the novel conundrums forced on us by this novel coronavirus. Fortunately, these new arrangements can be fashioned with some very old materials: the centuries-old principles of the First Amendment.

Three time-tested principles of the First Amendment stand out as guideposts for navigating the competing demands of religious exercise and public health in a time of contagion.

First, separation of church and state does not give religious communities immunity from regulation that is necessary for the common good. ...

The second principle is that government can regulate religious activity only through what the Supreme Court calls “neutral” and “generally applicable” laws. ...

Third, both sides must seek what the courts call “reasonable accommodations.” ...

Reasonable accommodation is the most important principle as we emerge from the first phase of this crisis. Government officials must continue to be vigilant about realistic public health dangers from religious practice, but they must identify “less restrictive” means for achieving their purposes. For instance, Jewish ritual baths, called mikvahs, are permitted to operate in the tristate area, but are doing so with stricter rules and regulations, including enhanced disinfection and cleaning, and they are visited by appointment only. Similarly, priests in New York City hospitals designated by the Catholic Archdiocese are permitted to enter patients’ rooms to give communion, so long as they wear all necessary protective equipment. These accommodations require a bit of trust on the part of the government and will need to be verified, potentially with clergy attesting to compliance with certain rules. But such trust is also required when California and Colorado deem marijuana dispensaries essential businesses.

Religious leaders and congregations will have to remember that the First Amendment is not an exemption from law applicable to all. And government officials must not forget that religious exercise is at the apex of our national values. Mass is not a football game, a minyan not a cruise. Worship cannot shelter in place indefinitely.

Coronavirus, Legal Ed News, Legal Education | Permalink


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