For two reasons, it pains me to see churches on the news violating stay-at-home rules. First, like almost everyone, I'm horrified by the potential impact on people's health and lives, put at risk utterly unnecessarily. Through the Bible, God calls on people to worship together, as a body, e.g. Hebrews 10:24-25. At the same time, as author Jon Meacham told Stephen Colbert in a terrific recent interview, during Passover and in anticipation of Easter, "Being willfully stupid is not part of the Christian tradition."
This might be an especially authentic Easter, Meacham suggested, in the sense that early Christians met in homes, e.g., Acts 12:12, and the disciples, if together, sought refuge behind locked doors after the Crucifixion, John 20:19. Moreover, I've written previously about the biblical precedent for quarantine.
Second, these stories on the news are man-bites-dog coverage; what's being reported is aberrational, not normal. And the truth about churches and other places of worship in this crisis could not be more poorly represented. My church is the norm. To protect congregants, the elders suspended our live worship service and other on-campus meetings before the law required. We had Easter services on a live feed, and we're having classes, prayer, and meetings on Zoom. Most importantly, we encourage and support one another, Romans 14, notwithstanding social distance. In the absence of coordinated leadership and a functional social safety net from government, communities of faith are filling the gap, keeping people sound of mind and body. That's the real religion story of the crisis (see also, e.g., NYT Wehner op-ed, Apr. 10).
Seeing authorities in Kentucky and Louisiana effecting arrests and citing drivers at live religious ceremonies that defy government orders, I started to worry what damage these aberrational observances might do to our jurisprudence and tradition of free religious exercise. Would this be yet another instance of #RuiningItForEveryone? That is, if courts start making rulings that approve authoritarian government controls over even ludicrous assertions of religious freedom, the unintended consequence might be to water down religious freedom for all of us—however much I try to remain cognizant of the First Amendment's critical function in anti-majoritarianism.
A Methodist preacher on Deal Island, Md.,
probably the Rev. Joshua Thomas in the 1830s.
From Adam Wallace, The Parson of the Islands93 (4th ed. 1872).
George Scoville, Nashville attorney and adjunct professor in political science at Belmont University, has written an excellent analysis of the present landscape in religious freedom law amid the lockdown, including explication of a recent federal court ruling in the Western District of Kentucky, and the potential application of the U.S. Supreme Court jurisprudence on Native American peyote use. He writes:
As an initial matter, nobody contests that, under the structure of our
Constitution, states have always had plenary police power to regulate
the health, safety, welfare, and morals of their citizens–the simple
requirement being, at least after the 1860s, that people receive due
process of law before a state-sanctioned deprivation of life, liberty,
or property. On the religious liberty question, my gut reaction is
that, generally speaking, “safer-at-home” or “shelter-in-place” orders
that prohibit gatherings of people larger than some discrete number, or
which require that people maintain a proper social distance of some
discrete number of feet, are not per se constitutionally
problematic. Rather, these orders, like the criminal prohibition on
peyote use that applied to all Oregonians, apply to everyone.
However, As Scoville explains, there might be room for a challenge where the due process thread of the religious freedom argument intertwines with the equal protection thread. Thus the court in Kentucky entertained the argument that disallowing drive-through worship while allowing drive-through liquor sales was constitutionally problematic.
[UPDATE, April 26, 2020: Attorney Scoville has authored an op-ed for The Tennessean in which he additionally considers the potential impact of mini-RFRA litigation amid the pandemic.]
[UPDATE, May 15, 2020: The Sixth Circuit has issued an injunction allowing live church services despite the Kentucky Governor's orders.]
In a civil rights case involving the freedom of religion, the Massachusetts Appeals Court today denied qualified immunity to public officials who prevented the employee-plaintiff from going to church for Christmas, even without a plain prior case on similar facts. The decision has important implications across the field of qualified immunity and "constitutional tort," because civil rights plaintiffs routinely claim violations of fundamental rights that officials should know trigger strict scrutiny in constitutional law.
Teresa Krupien was working at the Soldiers' Home in Chelsea, a veterans' healthcare facility. Another employee reported that Krupien injured the other's wrist when the two were moving a patient into a wheelchair. After investigation, and upon mixed conclusions among officials, Krupien was issued a "stay-away directive," barring her from the home premises. Krupien promptly informed officials that the directive would prevent her from attending Christmas services at the chapel, her "spiritual home," and alleged in her civil rights complaint that the directive in sum barred her from church services for 37 days. Officials for that time refused to modify the directive.
The trial court dismissed claims under the Massachusetts civil rights act on grounds of qualified immunity, and the Appeals Court reversed. Qualified immunity pertains when (1) a plaintiff complains of a public official's violation of statutory or constitutional rights, (2) the plaintiff's right was clearly established at the time of the alleged violation, and (3) a reasonable person in the shoes of the defendant would have understood that plaintiff's rights were clearly violated. Qualified immunity is an important defense in the law of "constitutional tort," because torts with public-official defendants usually must rise to the level of civil rights violations in order to overcome sovereign immunity, which is absolute unless waived.
The argument in qualified immunity usually centers on the second element, with an assist from the third, the two forming something like a "reasonable belief" test. Public officials, who bear the burden of proof of immunity, invariably argue that they were clueless about any clear violation because never before have the courts had a case quite like this one. Plaintiffs invariably respond by saying that of course this has never happened before, but come on, a lot of cases just like this have happened. Where element two is hard on plaintiffs with its clarity requirement, element three gives plaintiffs an assist by testing officials' denial objectively. Many a commentator has noted that the odd yet defensible effect of this rule is to give public officials a pass on a kind of civil rights offense once--but only once.
True to form, defendants here argued that no precedent provided clear guidance to officials on how to handle Krupien's desire to go to church. Nevertheless, the court opined, ample precedents demonstrate that struct scrutiny applies to claims of free religious exercise. And strict scrutiny, a public official should know, tests for narrow tailoring to achieve a legitimate state interest. Officials here had no evidence that Krupien's attendance at church would jeopardize anyone's safety. It would have been a simple matter to narrow the order and let her attend worship services.
The appeals court pointed to an oft-cited lamentation of renowned jurist, sometimes-"consummate ass," advocate-for-the-downtrodden-whilst-né-Circuit-JudgeRichard Posner, in which he pointed out that the lack of case law spelling out the impermissibility of selling a child into slavery cannot mean that a defendant gets one free pass to do so. Wrote Judge Posner in full:
Our job is the humbler one [than Congress's, in extending or abolishing immunity] of applying the immunity doctrine. We begin
with the elementary proposition that it would be improper to deny
immunity to a particular defendant on the ground that his conduct could
be subsumed under some principle of liability in force when he acted.
That approach would shrink immunity to trivial dimensions, since it is
always possible to find a principle of comprehensive generality (such as "due process of law"). But the immunity doctrine as it has evolved goes
much further than this to protect public officers. It is not enough, to
justify denying immunity, that liability in a particular constellation
of facts could have been, or even that it was, predicted from existing
rules and decisions, even though law, as Holmes famously remarked, is a
prediction of what courts will do faced with a particular set of facts.
(Maybe it is more than that, but it is at least that.) Liability in that
particular set must have been established at the time the defendant
acted.
It begins to seem as if to survive a motion to dismiss a suit on
grounds of immunity the plaintiff must be able to point to a previous
case that differs only trivially from his case. But this cannot be
right. The easiest cases don't even arise. There has never been a
section 1983 case accusing welfare officials of selling foster children
into slavery; it does not follow that if such a case arose, the
officials would be immune from damages liability because no previous
case had found liability in those circumstances.
Murphy ex rel. K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (paragraph break added). The Massachusetts Appeals Court here sought to fine-tune that balance between the general principle, religious freedom, and the specific distinction between one strict-scrutiny case and the next.
The case is Krupien v. Ritcey, No. AC 17-P-870 (Sept. 26, 2018). The opinion was authored by Associate Justice Vickie L. Henry. A graduate of Wellesley College and Boston University Law, Judge Henry left a lucrative commercial litigation practice with Foley Hogg in 2011 to serve as senior staff attorney and youth initiative director for Gay & Lesbian Advocates & Defenders (GLAD). In that capacity, she appeared in the consolidated cases that became Obergefell v. Hodges (U.S. 2015), establishing the federal constitutional right of gay marriage. Judge Henry was appointed to the bench by Governor Baker in 2015.
The U.S. Supreme Court ruled this morning in favor of the church
in the religious freedom case about public subsidy of playground
surfacing materials. The Court held that Trinity Lutheran (Mo.) could
not be excluded from the program to provide recycled tire rubber only because it is a church.
There is some strong religious freedom language in the majority opinion. From The Washington Post: <<Chief Justice John G. Roberts Jr., who authored the opinion, wrote, “The
exclusion of Trinity Lutheran from a public benefit for which it is
otherwise qualified, solely because it is a church, is odious to our
Constitution … and cannot stand.”>>
The vote was 7-2 with Justices Ginsburg and Sotomayor in dissent.
The majority found the case rather easy, because Trinity Lutheran was excluded from a public program only because of its status
as a church. A discrimination on that basis alone can be supported only under the most exacting scrutiny, which Missouri could manage. The Court left open the possibility that government
discrimination against a church might be permissible, upon a much lesser
burden, if a public benefit were to be converted to a religious use.
Justice Gorsuch
I
point this out--and mention the case at all, as much more able commentators will opine in droves in the hours and days to come--only to highlight an intriguing (and telling?)
paragraph in a separate opinion by new Justice Gorsuch, concurring, joined by Justice Thomas (citations omitted):
[T]he
Court leaves open the possibility a useful distinction might be drawn
between laws that discriminate on the basis of religious status and religious use.
Respectfully, I harbor doubts about the stability of such a line. Does a
religious man say grace before dinner? Or does a man begin his meal in a
religious manner? Is it a religious group that built the playground? Or
did a group build the playground so it might be used to advance a
religious mission? The distinction blurs in much the same way the line
between acts and omissions can blur when stared at too long, leaving us
to ask (for example) whether the man who drowns by awaiting the incoming
tide does so by act (coming upon the sea) or omission (allowing the sea
to come upon him)....
I
don’t see why it should matter whether we describe that benefit, say,
as closed to Lutherans (status) or closed to people who do Lutheran
things (use). It is free exercise either way.
In contrast, in another concurring opinion, Justice Breyer would have sharply limited the case to its facts.
The full decision and opinions in Trinity Lutheran Church of Columbia, Inc., v. Comer (no, not Comey, but a Missouri official, Comer) are available online.
