Attacking the four dissenters in the July 24 Supreme Court decision refusing relief to the chapel that sued Nevada for imposing more restrictive indoors assembly numbers on churches than on casinos, New York Times reporter Linda Greenhouse accused them of pursuing a religious “crusade.” We all know that crusades are led by sectarian ignoramuses whose zealotry ignores science, relying on evidence such as the “well-documented role of religious services in spreading the virus.” Unlike those religious zealots, however, Greenhouse is willing to give much broader—in fact, practically unlimited—scope to a governor’s discretion, all in the name of “public health.” In his dissent, Justice Alito said that the governor claimed “virtually unbounded power to restrict constitutional rights during the Covid-19 pandemic.” The sole difference was that Alito found this problematic, whereas for Greenhouse it was no problem at all.
Greenhouse was willing to allow almost unlimited scope, in the name of “public health,” to politicians and their technocrat staffs (who can presumably find the numbers to provide the “data” fig leaf for just about anything) to combat pandemics.
Her present readiness to yield to politicians in this area contrasts sharply to that of much of her career. She has criticized Korematsu v. United States, the Supreme Court decision permitting the internment of Japanese Americans in World War II. She even invoked Korematsu to appeal to the courts not to repeat that historical blot by failing to expand the “rights” of detainees in Guantanamo.
One has no doubt that Greenhouse would certainly not have countenanced politicians (regardless of what “data” their technocrats provided) who would use COVID-19 to ban abortion under a wider restriction on elective surgery. No doubt she would call it a “TRAP” (targeted regulation of abortion providers, a pejorative term pushed by Planned Parenthood) regulation camouflaged as public health policy to abridge a woman’s right to abortion. She would undoubtedly argue that abortion is “safe” and that its “safety record” shows it poses no major burden to the public health system, and, in any event, women cannot put their rights and lives on hold as the pregnancy clock ticks.
She nevertheless believes that worship is not safe and that its “well-documented” record as a vector of contagion threatens an already overburdened public health system, and, in any event, worshippers can put their rights on hold by accommodating them to virtual or on-line prayer. Just close the door and pray.
What’s the difference between these two “rights,” one of which is explicitly found in the Constitution while the other depends on a constant Supreme Court assurance that “it’s in there”? Why are the rights of Korematsu, Guantanamo detainees, and pregnant women sacrosanct but those of worshipers not?
Perhaps the issue is mortality—mine—or at least its threat.
In a culture of death, mortality is generally not an issue in the third person but becomes acutely important in the first person. The paradox is that restrictions on abortion—in a time of Covid or not—would save lives. The only problem is that we have decided to pretend those lives are not lives. (And if they are, it doesn’t matter.)
My mortality, however, seems to presuppose the most protective public health regimes possible, even if they truncate your rights. “Flattening the curve” is a political decision for the common good. In Greenhouse’s view, churches are just another special interest whose special interest claims—like those of other special interests—are reviewed and adjudicated by elected officials and their advisors. Once they have adjudicated those competing claims, the responsible public interest, and this includes churches, should pray (at home, not in church), pay (for the abortifacients and contraceptives of others at home), and obey (Caesar).
Behind this entire problem is that of risk.
One factor we have so far managed to kick down the road during the Covid pandemic is risk. As several commentators have noted, our current posture operates on the assumption, wish, hope, thought, or prayer that a Covid vaccine will be available by year’s end. One prays that it will be. But if it’s not, our society will have to reckon with the discussion President Trump has occasionally raised but which has been deferred: how do we manage risk? We have to address that question, because we cannot continue—economically, religiously, politically, socially—under lock-down indefinitely. Can we imagine 2021 as a continuation or reprise of 2020?
At the same time, our society has grown risk-averse. We start early. Our children “play” under the supervision of “helicopter parents.” They do not so much play “with” as much as “alongside” other children. Later, amidst the risk of competition, we provide “show up” and “participation” awards. Later still, confronted by intellectual challenge, we package books with the equivalent of prescription inserts, i.e., “trigger warnings” that set out the intellectual contraindications of thinking.
Is this society ready for reckoning with mortal risk?
I am not sure that the Church is either. Our response to Covid, introducing moratoria on public Mass from sea to shining sea and, in some places, even banning the sacraments in periculo mortis, says that we are as risk-averse as our secular counterparts. The governor may deny Americans their right to worship in church; the bishop denies Catholics their right to receive the sacraments. I’m sure both tell us it’s for our own good. The fact that even where the phased reintroduction of public Mass has not generated a discussion in dioceses about the wisdom of the initial policy suggests that we don’t want to address those issues.
Physical life has a value; for this I have self-quarantined for months. But so does spiritual life, and that is a value that Caesar cannot evaluate, weigh, or decide about. But because he cannot evaluate, weigh, or decide about it does not mean it does not exist or is unimportant.
Caesar cannot say that the religious person’s need for spiritual life in community is unimportant or subordinate to public policy considerations. That makes the right to free exercise of religion meaningless—a constitutional paper tiger toothless in practice.
But if our current Covid-19 challenges persist, we will have to tackle those risk issues. Our right to “free exercise” has already been attenuated. Many politicians in recent years have abandoned the constitutional phrase, preferring “freedom of worship.” The motive was simple: stay in your sacristies and burn some incense, but don’t tell us you won’t pay for abortifacients or celebrate our redefinitions of marriage and sexuality.
Now, even staying in your sacristies is a danger, and so Caesar wants to shrink the “right to worship” even further to a “right to believe.” You can believe whatever you want—in your room or in your head. You can even “worship” on-line. But don’t dare claim that your “worship” involves a qahal, an ekklesia, or a minyin. Caesar can regulate that, for he sees it as a threat.
Well, Caesar has always seen free exercise of religion as a threat, going back to when Nero lived in Caesar’s palace. Nihil novi sub sole. The question is, in the name of risk, will religious Americans acquiesce in that vision.
[Photo credit: Alfredo Estrella/AFP via Getty Images]