Commentary: Why governments should not be deeming in-person worship essential

(Francisco Kjolseth | Tribune file photo) Imam Shuaib Din of the Utah Islamic Center in Sandy holds 10-minute prayers with increased spacing for the first time on Friday, May 8, 2020, since closing down for the coronavirus pandemic. President Donald Trump has declared that all religious services are "essential."

On Sept. 19, 1796, a couple of months before the election that would choose his successor, President George Washington used his farewell address to convey what has become a proof text for those who argue that religion must play a big role in American public life:

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. ... And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

Leaving aside for a moment who Washington may have meant by “minds of peculiar structure,” his statement is the ancestor of the prepared remarks that Donald Trump delivered at an unscheduled news briefing on Friday:

“Today I’m identifying houses of worship, churches, synagogues and mosques as essential places that provide essential services. Some governors have deemed liquor stores and abortion clinics as essential but have left out churches and other houses of worship. It’s not right. So I’m correcting this injustice and calling houses of worship essential. I call upon governors to allow our churches and places of worship to open right now.”

Asserting that these were “places that hold our society together and keep our people united,” Trump wrapped up by declaring, “In America, we need more prayer, not less.”

Trump is entitled to his opinion, of course, but in the United States neither presidents nor governors should be deciding whether houses of worship are (or are not) essential.

The question for civil authorities should be to what extent does their responsibility for public safety empower them to limit people’s religious free exercise. It should make no difference whether liquor stores or abortion clinics or beauty salons or movie theaters or anything else is deemed essential. Houses of worship are, or should be, treated as a thing apart.

Unfortunately, the Supreme Court has required them not to be. Writing for a 5-4 majority 30 years ago in Employment Division v. Smith, Justice Antonin Scalia established a new First Amendment doctrine when he declared that as long as a law is “neutral” and “generally applicable,” you can’t go to federal court and claim that your free exercise right has been violated.

Under Smith (and a subsequent decision, Church of Lukumi Babalu Aye), what you have to show is that your religious practice has been singled out for unfavorable treatment, either because the law in question is not in itself neutral or because it has not been applied neutrally — i.e., not applied to your religious practice or institution the same way it is applied to other practices or institutions.

As a result, in the cases that have been popping up around the country protesting prohibitions or limits on religious gatherings, the assertion is that it is unfair not to treat these gatherings the same way as other places where people are allowed to go. Or, as the Justice Department put it in a letter to California Gov. Gavin Newsom last week, “Laws that do not treat religious activities comparable with nonreligious activities are subject to heightened scrutiny under the Free Exercise Clause of the First Amendment.”

A reasonable case can be made that indoor religious gatherings should be permitted on free exercise grounds as long as they are conducted on terms that assure public safety. On Monday, California issued mandatory guidelines that aim to do just that.

But their legality should not be dependent on their being neutral and generally applicable. That just invites endless litigation over comparability and essentiality — i.e., over whether gathering for communal worship is more like eating in a restaurant or going to a movie theater.

To be sure, Trump’s remarks had little to do with the legalities and everything to do with the politics of motivating his base and painting his Democratic enemies as anti-religious in an election year. But the ancestral precedent applies there, too. Washington’s remarks on the place of religion in national life were in fact ghosted by Alexander Hamilton, who was at the time deeply involved in Federalist efforts to prevent the election to the presidency of his archenemy Thomas Jefferson.

In the 1796 campaign, which he lost by a small margin to John Adams, the famously learned Jefferson was repeatedly accused by Federalists of being an atheist. It is fair to assume that his was the mind of “peculiar structure” that Washington’s farewell address targeted for believing that national morality could prevail in the absence of religious principle.

Editor’s noteThe views expressed in this opinion piece do not necessarily reflect those of Religion News Service.