The antiviral lockdowns have banned most large gatherings: baseball games, sales conferences, college graduations, and religious services.
Religious services are governed by the same rule as other large gatherings. They are neither specially targeted nor specially exempted. Justice Antonin Scalia explained the justification for applying general rules to religious groups in a 1990 Supreme Court decision:
We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.
But over the past three weeks, some conservatives have argued louder and louder that the failure to exempt religious services from the general rules during the coronavirus pandemic constitutes an anti-constitutional attack on religion.
On April 8, the Fox News host Tucker Carlson lamented: “It’s possible that in five days we will see something that we never imagined in this country: Easter celebrations broken up by the police. Of course, you can still go to the grocery store and the pharmacy; you could still have Communion in the produce aisle at Safeway. But churches? We’ll find out if that’s allowed.”
On April 10, a pastor appeared on Carlson’s show to accuse the city government of Greenville, Mississippi, of anti-Christian harassment because it did not allow drive-in church services.
Senator Rand Paul on April 10 tweeted an attack on Kentucky’s warning that people who attended large services on Easter could face tickets and quarantine orders: “Taking license plates at church? Quarantining someone for being Christian on Easter Sunday? Someone needs to take a step back here.”
The Fox News host Jeanine Pirro on April 15 praised Michigan protesters who resisted an unnamed “them” who “want to keep us away from churches and synagogues.”
On April 18, Donald Trump retweeted this complaint about Easter restrictions:
Let’s see if authorities enforce the social-distancing orders for mosques during Ramadan (April 23–May 23) like they did churches during Easter.
At a press conference that day, Trump was invited to explain himself, and he did:
I am somebody that believes in faith. And it matters not what your faith is, but our politicians seem to treat different faiths very differently, and they seem to think, and I don’t know what happened with our country, but the Christian faith is treated much differently than it was, and I think it’s treated very unfairly.
He added: “They go after Christian churches, but they don’t tend to go after mosques.”
All of this might seem performative victimhood as usual, but on April 27, Attorney General William Barr issued a directive to the 93 U.S. attorneys and the civil-rights division of the Department of Justice to be “on the lookout” for state regulations that discriminate against religious institutions and religious believers.
The sense of persecution that pervades conservative talk has jumped to sway federal law enforcement.
It needs to be stressed at the outset that almost all faith groups in the United States have voluntarily and responsibly complied with public-health restrictions. Two dozen Muslim groups signed a statement on the eve of Ramadan urging Muslims to celebrate the holy month in rituals at home, not in mosques or Islamic centers. The Church of Jesus Christ of Latter-day Saints suspended all services worldwide on March 12. Catholic churches likewise suspended public Mass. Cellphone records confirm that the large majority of Christian worshippers marked Easter at home.
But human nature being what it is, people will predictably resist even sensible rules for their health. Hundreds of New Yorkers crowded together to watch a hospital ship dock, which would seem about the ultimate in self-defeating behavior. Police in many states have issued warnings and fines to enforce social distancing. People have been arrested for hanging out on Brooklyn street corners in too large numbers. People have been fined for gathering in large groups on Los Angeles beaches. (California Governor Gavin Newsom is warning of even stricter enforcement if rules are broken over this warm weekend.) And people have faced sanctions, including fines and arrest, for defying rules against religious assemblies.
It’s not discrimination when the same health and safety rules are applied equally to all. When states enforce rules against such gatherings, they are not singling out “religious observance.” They are including religious observance on a list defined by the most neutral of possible terms: risk of infection. Churches are bound by fire codes, just like other institutions, and the same principle articulated in Scalia’s 1990 opinion in Employment Division v. Smith applies here.
It’s especially not discrimination to apply universal health and safety rules to religious assemblies when there is ample evidence that religious assemblies—much more than beaches or parks—have proved capable of spreading the virus. An outbreak in Georgia traces to a church funeral in Dougherty County, one in Louisiana to a megachurch that ignored social distancing.
It’s striking that nearly a month after conservative media began complaining, the Justice Department still cannot identify any instances of unfair treatment of worshippers beyond the wish of some megachurches to keep operating as usual in a time of pandemic. Indeed, the only documented instance of anti-religious bigotry in recent weeks is Trump’s own accusation that Muslims were benefiting from special treatment denied to Christians.
But the purpose of the Trump administration and Barr’s Justice Department is not to defend genuine religious liberties from real-world threats. It is to stoke cultural resentment for political purposes. They are out to get you because they care more about alien Muslims than about authentically American Christians.
As MSNBC’s Joe Scarborough has aptly said, you cannot fight a culture war against a virus. The virus will always win.
But the Trump administration is not fighting the virus, not primarily anyway. Its priority is to fight an election—and to incite fights against governors who are making Trump look bad in comparison as a tactic in that election.
Inviting people of faith, and especially evangelical Protestants, to imagine themselves as victims is today’s incitement. Tomorrow there will be other incitements. And at every turn, public health will be sacrificed—and the people Trump supposedly champions will end up as the victims of the plague that Trump did not start, but that Trump is making so much worse than it had to be.
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