Is our nation witnessing a soft form of religious persecution beneath the cloak of public health? I pray and hope that this is not the case and that governments, preventing the free exercise of religion, will reverse course and allow church leaders to reopen their doors to once again proceed with the most essential task of mankind: the universal salvation of souls.

Last Tuesday, California Governor Gavin Newsom unveiled his complex, detailed plan on how the Golden State intends to reopen schools, business, and public spaces. He clarified in his press briefing that the stay-at-home restrictions would be loosened in four phases with the time in between each phase lasting up to weeks, if not months. Dr. Sonia Angell, the state’s leading public health officer, commented that Californians were still in the first phase, meaning that only essential businesses are allowed to operate. The start of the second phase would allow factories, non-grocery retail stores, schools, and child care facilities to reopen.

On May 4, Gov. Newsom announced that the second phase would begin this Thursday, with the major exception of schools. He noted, previously, that schools could potentially reopen for the new academic year as early as July or August. Why such an “early” target date, one should ask? His answer was reasonable and well-informed: reopening schools and child care facilities are deemed critical for students who have experienced “learning loss” over the past few months. No doubt that distance learning, especially for minority groups and working families, is a tremendous strain on students, teachers, and parents alike.

Now, what activity or organization is not worthy of such critical importance in the eyes of the government to be included in the next phase? Religious worship. Only with the enactment of the third phase would in-person religious gatherings, classified as higher-risk business, be permitted again to reopen as well as salons, gyms, movie theaters, and sporting events without a live audience. Concerts, sports with live crowds, and large-scale conventions would reopen as part of the last and fourth phase, which could possibly take up to a year.

Though in-person religious worship is prohibited in California for the foreseeable—albeit lengthy—future, elsewhere in the nation, this is not the case. Since states began issuing stay-at-home orders in March, twelve states allowed religious gatherings to take place while requiring social distancing in services with single-digit attendance. The governors of these states recognized that the free exercise of one’s faith, as guaranteed by the First Amendment, is and ought to be considered as an “essential” service. Arizona, for example, exempted religious worship as essential activity because this sacred act, man’s highest calling, is protected under the First Amendment of the Constitution.

The Catholic Diocese of Las Cruces, New Mexico, was, in fact, the first diocese to reopen its doors and celebrate public Mass once it realized that the public worship of the Catholic faith was reconcilable with the government-mandated social distancing and accommodation limiting measures. For Easter Sunday Mass, Bishop Peter Baldacchino of Las Cruces, served holy communion to about 220 people with the aid of protective covers, gloves, masks, and Lysol wipes in the distribution process.

Due to such strict measures on religious worship, there is an alarming increase in the rate of lawsuits filed against state governments by private citizens and religious organizations who believe their fundamental rights are being encroached upon. Cross Culture Christian Center, a protestant church neighboring the Bay area, pressed a lawsuit against Gov. Newsom for violating their First Amendment rights after Pastor Duncan’s Palm Sunday service was shut down by the local police department.

The pastor’s attorney, Dean Broyles of the National Center for Law and Policy, argued that under the legal review of strict scrutiny, a form of judicial review courts used to determine the constitutionality of laws, the Governor’s stay-at-home mandate prohibiting in-person religious gathering is not “narrowly tailored” as to place the fewest restrictions as possible on First Amendment liberties though it may meet the “compelling governmental interest” criteria. In describing the Governor’s actions, he stated that “the government here appears to be trying to use a sledgehammer to kill a mosquito.”

On the other side of the spectrum, Rachel Laser, president and CEO of Americans United for Separation of Church and State, stated, “What we know to be true is that the Constitution not only permits these government officials to include these religious gatherings in their ban — but it requires them to.” Ms. Laser drew her argument from the non-establishment clause, further pressing: “The [non-establishment] clause says that where lives are at risk, you aren’t permitted to grant special treatment or special exemptions for religious institutions.”

In response, one might ask why abortion mills, liquor stores, or grocery markets are granted so-called “special treatment” but not the church. To seek an answer to this question, the Justice Department filed court documents on behalf of Temple Baptist Church in Greenville, Mississippi, which filed a lawsuit for potential discrimination against religion for placing restrictions on the formerly, but not to freely, unhindered operating businesses. This past weekend, the Department of Justice filed a Statement of Interest on behalf of Lighthouse Fellowship, a Protestant church in Virginia, upon receiving a notice to appear before the court of law for their illegal Palm Sunday service. The list continues to grow.

Attorney General William Barr acknowledged that “the Constitution does allow some temporary restriction on our liberties that would not be tolerated in normal circumstances,” but he added, “even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers.” “Thus,” he concluded, “the government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity.”

As the curve begins its downward trend in terms of both new cases of coronavirus and fatalities from the disease, I am gravely disturbed by the severe still placed on religious gatherings, which in the unfortunate case of California will last for months to come. The sight of the First Amendment being trashed into the dustbins of history, in the almighty name of public health and safety, is painful to witness as someone who took an oath to support and defend the Constitution of the United States. Men and women of all backgrounds sacrificed their lives in the field of battle, from the American Revolution to the invasion of the beaches in Normandy, to defend our way of life, to ensure our “first freedom,” that of religious worship, was secured by the government for the people.

Edmund Burke wrote, “religious persecution may shield itself under the guise of a mistaken and overzealous piety.” Is our nation witnessing a soft form of religious persecution beneath the cloak of public health? I pray and hope that this is not the case and that governments, preventing the free exercise of religion, will reverse course and allow church leaders to reopen their doors to once again proceed with the most essential task of mankind: the universal salvation of souls.

The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.

The featured image is Declaration of Religious and Conscience Freedom in the Diet of Torda (1896) by Aladár Körösföi-Kriesch (1863-1920) and is in the public domain, courtesy of Wikimedia Commons.

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