During trying times such as these, it is understandable that people who believe in a higher power would want to lean into their faith and meet with their faith communities. That makes the public health orders around the country barring people from gathering, including for religious services, all the more difficult – but still necessary.
“We appreciate the difficulty that these public health orders pose for all of us, including those who find solace in religious services during such challenging times,” said Rachel Laser, president and CEO of Americans United, in a statement yesterday. “But this virus doesn’t discriminate – it endangers people whether they gather for religious or secular purposes, and it puts entire communities at risk. … We applaud the faith communities who are finding creative new ways to worship together virtually. We will get through this crisis together, even if not in person.”
Unfortunately, as we noted yesterday, some misguided religious leaders are resisting stay-at-home orders issued by state and local officials, arguing that they have a constitutional right to meet for religious services, even in the face of a pandemic.
Among them are Pastor Rodney Howard-Browne of Florida’s River at Tampa Bay Church, who has been arrested because he refused to stop holding religious services even though an order had been issued requiring people to stay home except for essential trips, and a band of clergy in Harris County, Texas, who are opposing an order there that curbs large gatherings.
In both cases, extremist voices are arguing in favor of the churches. In Harris County, the pastors are working with Steven Hotze, a medical doctor known for his anti-LGBTQ activism. Hotze has been on Americans United’s radar screen for a long time and has a history of activism in the most radical Christian nationalist circles, while Howard-Browne has retained Mat Staver, an attorney who runs the Religious Right legal group Liberty Counsel, an organization the Southern Poverty Law Center considers to be a hate group, to represent him.
Predictably, Staver has been making wild-eyed claims on his group’s website, asserting, “America is in the fight for her life right now – not against a virus that has so far caused fewer deaths worldwide than car accidents or tuberculosis – but against the anti-Christian, petty tyrants who, unable to steal YOUR freedom in the good times of broad daylight, now seek to use panic and fear to force you into compliance.”
Hotze and Staver are ignoring the extraordinary nature of these times. Normally, a church’s worship activities would be of no interest to the government. But, normally the government would not be interested in banning people from gathering for secular purposes either. In the face of a public health crisis, that can change. Restrictions on gatherings can be put in place as long as they are neutral and applied equally to religious and secular entities. (If you’re of a legal bent, you can read more about these arguments in AU’s brief in the Harris County case. The situation there is in flux, as Gov. Greg Abbott has since issued a statewide executive order that allows houses of worship to meet as long as social distancing is practiced.)
When the health and well-being of the population is at stake, and public officials have a duty to take steps to protect it. This is not a new idea. In 1905, the U.S. Supreme Court heard a case called Jacobson v. Massachusetts, which upheld the right of states to fine residents who refused to get mandatory vaccinations. The plaintiff in the case, Henning Jacobson, refused to get a smallpox vaccination even though an epidemic was under way in his town of Cambridge. Jacobson was a member of the clergy but did not raise a specific religious objection to the vaccine; rather, he argued that forcing him to receive it was “an invasion of his liberty.”
The high court, ruling 7-2, disagreed.
“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” observed Justice John Marshall Harlan.
Seventeen years later, the Supreme Court affirmed its ruling in the Jacobson case when it ruled in Zucht v. King that the public schools of San Antonio, Texas, could refuse admission to students unless they were first vaccinated against smallpox.
Since then, several lower federal and state courts have issued similar decisions specifically rejecting the idea that parents have a religious freedom right to ignore vaccination requirements for children.
As Americans United has noted repeatedly, religious freedom doesn’t grant anyone the right to expose others to harm or take away their rights. Hotze, Howard-Browne, the Harris County pastors and others who are trying to undermine stay-at-home orders are threatening the health and well-being of not just their congregations but of their larger communities. Neither common sense nor the law is on their side.