There is no First Amendment right to endanger others during pandemic

legal_scales.pngAs President Trump opportunistically encourages religious organizations to violate legitimate state limits on the size of assembled groups, Mathew Goldstein reminds us that there is no constitutional right to endanger the lives of others.


/By Mathew Goldstein/ Religious free exercise is one of our first amendment legal principles. There are multiple different legal principles and they sometimes conflict with each other, which is why legal principles are not absolute. Religious freedom is not a shield that protects criminal activity. Claiming that God wants you to seize someone’s property is not a sufficient argument for legalizing theft.

Government stay at home policies that restrict the size of public gatherings, or require wearing face masks, or require maintaining some distance from other people, to protect the health and economic welfare of the local community from a contagious disease, are not unconstitutional or tyrannical because they interfere with religious free exercise. Many religious worship congregations acknowledge their communal responsibilities and some have moved religious services online or outdoors with distancing. But too many of the governments within the United States have risked the health and economic welfare of their citizens by carving out exemptions for religious institutions so that those institutions can continue to operate with few restrictions while similarly situated non-religious institutions cannot.

Maryland is an example of this. Governor Hogan has declared that “Social, community, recreational, leisure, and sporting gatherings and events of more than 10 people (“large gatherings and events”) are hereby prohibited at all locations and venues”. But he then singled out religious facilities for an exemption (as of May 15), legal_scales.pngdeclaring that “ churches, synagogues, mosques, temples, and other similar religious facilities of any faith ... may open to the general public“ with a fifty percent each capacity limit.

Both Prince George’s and Montgomery Counties, in contrast, are currently not discriminating between religious and non-religious facilities. The state and county wording are identical except that the state omits “religious” and “spiritual” from its list of gatherings that are limited to ten people. County Executives Angela Alsobrooks and Marc Elrich both declared (as of May 14 and May 15 respectively) “... social, community, spiritual, religious, recreational, leisure, and sporting gatherings and events ("large gatherings and events") of more than 10 people are hereby prohibited at all locations and venues ...”.

Laws designed to protect public health and safety are constitutional when they are applied neutrally, across the board, without favoritism between competing religions and  religious and anti-religious orientations. Thus, if plays, concerts, sporting events, lectures, etc., activities are restricted, then religious services posing similar negative risks may, and should, also be similarly restricted. A virus doesn’t discriminate between someone reciting a prayer or giving a lecture. Government officials should respond to a non-discriminatory virus with a non-discriminatory application of the same policy to all non-essential gatherings, religious and non-religious. Insofar as counties have leeway to set their own policies they should consider not following the Governor’s lead with respect to setting different standards for religious and non-religious gatherings.

We want to return as soon as possible to a normal life while minimizing disruptions and sacrifices. Our return to a normal life, however, is being made more difficult by some clergy, who are resisting bans on large gatherings, and by some elected officials, who are defining government policies to allow larger gatherings for risky religious activities than for equally risky non-religious activities.

Another weakness with these policies is that they tend to be incomplete, specifying only the conditions triggering the phase out of the precautionary policies without specifying the triggering conditions for re-applying the precautionary policies. Contagious diseases exhibit a tendency to wax and wane over time. Weakening a policy that is effective in inhibiting the spread of a disease will tend to hasten the spread of the disease. A good policy to manage a contagious disease would be a better policy if it were defined to self-adjust in both directions.

Mathew Goldstein is chair of the Secular Coalition for Maryland. He lives in Bowie.