by Jeremy Dys, Special Counsel for Litigation and Communications
A global pandemic has gripped the nation’s attention and rightly so. In response, some state officials are imposing restrictions upon the gathering of large numbers of people in one place at a time. While the NCAA, professional sports leagues, and others have voluntarily restricted their gatherings, the leaders of churches and other religious institutions are, understandably, nervous that state-mandated restrictions may violate religious liberty.
They needn’t be. As in times past, the mutual respect and cooperation between church and state can lead to greater calm and help reduce the impact of such pandemics on our communities. We have been through this before.
As World War I drew to a close, the world turned its attention to a more silent enemy: the Spanish flu of 1918. Like the coronavirus, the Spanish flu spread quickly as soldiers returned from the European theater to their home towns across the globe, including Washington, D.C. Between October 1918 and February 1919, the Spanish flu infected 50,000 residents of the nation’s capital. More than 3,000 died from it.
At the peak of the pandemic, District health officials placed restrictions on all public gatherings, including churches and other religious institutions. Local pastors were initially wary of such restrictions, accustomed as they were to the First Amendment’s unequivocal guarantee of the “free exercise of religion” and “right of the people peaceably to assemble.”
A hastily assembled meeting of the area’s religious leaders discussed the matter and concluded they would comply. In fact, according to reports at the time, the resolution indicated that they “do place themselves on record as cheerfully complying with the request,” which they understood “applies to all churches alike.” And, while they could not meet together, a precious conviction of churches throughout history, they encouraged their members to engage in “some form of religious worship remembering in prayer especially the sick.”
Churches were not the only ones impacted by the restrictions. According to the local paper at the time, health officials required the “closing [of] every place of public amusement in Washington for an indefinite period,” which was to include “the regular theaters, vaudeville houses and moving picture shows.”
In the end, these restrictions lessened the impact of the already devastating Spanish flu on the community. It also set the example for future generations — an example we have not needed until this generation — of how church and state may work together, even while in tension over otherwise assumed freedom.
Like the Spanish flu, coronavirus presents a unique situation requiring unusual responses. Like the pastors of Washington in 1918, the leaders of today’s religious institutions are right to be wary of ceding too much to the state. But, like the pastors of old, today’s religious leaders have an opportunity to provide comfort to an anxious society and, in so doing, reduce the overall impact of the coronavirus.
America’s churches and religious institutions have played a central role in caring for their local communities throughout history. They should continue to do so, whether that is through acts of mercy, providing shelter, or simply being a source of encouragement and peace in times of crisis.
But they should understand that temporary, evenly applied restrictions on gathering may be permissible under the governing First Amendment jurisprudence. Government may not substantially burden the free exercise of religion unless it has a compelling reason for doing so, and even then, it must use the least burdensome approach that achieves that compelling interest. Temporary action to reduce the spread of a global pandemic is almost certainly a compelling reason, so long as the government treats religious gatherings with other comparable gatherings.
The Spanish flu is, again, instructive. The action of health officials to prevent large gatherings was applied to churches and all “public amusements.” And, while we do not have many “vaudeville houses” anymore, state officials will help ease the concerns of religious leaders by asking movie theaters and concert halls to join houses of worship in suspending their gatherings for a time.
The reality is, the state is going to need the comfort and selfless care churches are known for during this pandemic. And the church needs the state’s public health apparatus to stem its effects.
As with the Spanish flu, so with our current challenge: Church and state have an opportunity to work together to reduce the impact of the virus on our communities while encouraging calm and preserving liberty.
Originally published in the Washington Examiner, March 29th, 2020
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