The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At the Law & Liberty site, I have an essay on constitutional challenges to state and local bans on religious gatherings. (Eugene has covered these cases here and here). My essay addresses some of the legal issues: whether bans are "generally applicable" under Employment Division v Smith, how courts might weigh the burden on religion against the state's interest in curbing the epidemic, whether less-restrictive means are available, etc. I'd like to follow up here with a couple of additional comments, first, about church services and contagion, and second, about the sort of churches bringing these lawsuits.
First, on the risk of contagion, some evidence now suggests that churches are more like theaters, concert halls, and lecture rooms than grocery stores. Contagion is a function of viral load and time exposed: the longer people are together in an enclosed space, the more likely it is that they will receive a high-enough concentration of the virus to be infected and for the disease to spread. The risk also increases when people sing together, as in a choir. Many church services last an hour or two and involve lots of congregational singing, which could mean a much higher risk of exposure than simply walking through a supermarket.
This point hasn't appeared prominently in court decisions so far. For example, in this past weekend's Sixth Circuit opinion striking down the Kentucky ban on church services, the panel dealt with the point only obliquely. "It's not as if law firm office meetings and gatherings at airport terminals"—which remained legal under the Kentucky ban—"always take less time than worship services," the judges explained, and it would always be possible to limit the number of people attending. That's true, but there may be something about church services, like concerts and lectures, that make them more apt to be sources of viral spread than other gatherings, something that approximates a qualitative difference, when it comes to contagion. And if that's true, it would explain why church services, like movie screenings and concerts and lectures, aren't in the same category as grocery shopping, and, consequently, why the government could curtail the former while allowing the latter. We'll have to see what courts make of this argument, once they fully address it.
Second, about the churches bringing these lawsuits. As I explain in the Law & Liberty essay, so far, all the plaintiffs are Christian, and virtually all of them appear to be Evangelicals. The only example of which I'm aware in which a non-Evangelical church has challenged the constitutionality of one of these orders involves a schismatic (or "irregular") Catholic parish in New Jersey. Although some prominent lay Catholic voices have expressed skepticism about the bans, the Catholic Church hierarchy in this country has so far complied, as have the various Orthodox jurisdictions.
Now this is a puzzle, because in Christian terms (I can't speak to other traditions), Evangelical worship is non-liturgical. It emphasizes the teaching of Scripture, not the sacraments. The main point of Evangelical worship is for people to gather to hear the Gospel truly preached. As a result, Evangelical services can be adapted to the online idiom fairly easily. Something important is lost, of course: the fellowship of other believers. But the faithful can listen to a powerful sermon over the internet, at home.
The main point of Catholic and Orthodox Christian worship, by contrast, is the distribution of Holy Communion, which Catholics and Orthodox faithful hold to be the real Body and Blood of Christ. One cannot distribute Communion online. I know I'm painting with a broad brush and that everything is comparative. I don't mean that preaching is unimportant to Catholics and Orthodox, or that corporate worship is unimportant to Evangelicals. But, in liturgical terms, Catholic and Orthodox churches should be the ones complaining about state-ordered closings, since the closings impinge on their worship much more. Yet they have not. What explains this?
The difference may have more to do with attitudes towards authority than the theology of worship. First, Evangelical churches lack a hierarchical structure. As the heirs of the free-church tradition, they typically are independent congregations that can decide for themselves how to respond to government action. Catholic and Orthodox parishes, by contrast, answer to bishops who can discipline priests and congregations when they go astray—and, so far, the hierarchies have been willing to comply with government orders to curtail services, though that may not continue indefinitely.
Second, Evangelical Christians generally may be more suspicious of state action than are Christians in the Catholic and Orthodox traditions, which have a history of greater interconnectedness with state authority. Finally, there may well be a political component. White Evangelicals overwhelmingly support President Trump, and Trump supporters generally express more suspicion of the public health authorities just now.
To be sure, the number of lawsuits, so far, is very small. Most Evangelical Christians in America have complied with the bans on worship services, just like most Catholic and Orthodox Christians—and just like most non-Christians. And non-Evangelicals may file lawsuits in the future. But the overrepresentation of Evangelicals as plaintiffs at this point is striking, and I doubt it's just a coincidence.