In our effort to curb the spread of COVID-19, we’ve sacrificed many rituals we once took for granted. From work and school to grocery shopping; few aspects of our lives look like they did at the beginning of 2020. These changes are controversial enough as is, but two particular activities have sparked even more pushback: political protests and religious gatherings.
Both activities include some element of risk. Protests, by nature, involve large crowds. Social distancing, although possible, can prove difficult under such circumstances. Religious services may also attract larger crowds, but the greater concern derives from the pairing of their typical indoor locations and their emphasis on singing — which the CDC emphasizes as a key driver for spreading the virus.
Beyond their enhanced risk, protests and religious gatherings are notable for their protection under the constitution — both activities are covered under the First Amendment. This has prompted some to ask: Why are protests the only activity allowed to continue if they both increase the risk of transmission?
The role of the free exercise clause
Reflecting the stark divisions in the discussion on religious gatherings during the pandemic, the Supreme Court handed down a 5-4 decision in a case involving California restrictions on church services.
While explaining the outcome, Chief Justice John Roberts highlighted the state’s approach as consistent with the Free Exercise Clause, which mandates Americans’ rights to freely practice their respective religions. In the Chief Justice’s eyes, California’s restrictions for religious gatherings were no stricter than those applied to comparable secular activities.
Of course, the Supreme Court’s decision occurred prior to the peak of the civil unrest sparked by the killing of George Floyd. Since then, protests have attracted far larger crowds than religious services. Some of those concerned by what they regard as an assault on freedom of religion believe that, if protesters are allowed to gather during the pandemic, the same ability should be extended for religious matters.
As a recent report for the Congressional Research Service points out, the Free Exercise Clause doesn’t technically prohibit all restrictions on religious action. Rather, it prevents government authorities from regulating religious beliefs.
Punishment for religious actions can only be barred if motivated by hostility to a specific religion or the general concept of religious gatherings. Legal precedent suggests, however, that limitations can be imposed in good faith, especially if such actions are deemed “necessary to maintain order.”
The nature of the restrictions
Much of the conflict surrounding comparisons of protests to religious gatherings derives from perceived risks and mitigation efforts related to these activities.
As many protesters point out, the likelihood of transmission can be diminished through the use of masks and social distancing, which are more difficult to enact and enforce within places of worship. Likewise, protests nearly always occur outdoors, where the virus is less likely to spread.
The role of timing must also be considered. Initial limits on religious gatherings were imposed during the early days of the lockdown when similar efforts impacted economic activity and even family gatherings. The protests sparked by George Floyd’s death occurred as several states began to ease up on quarantine rules — and before summer surges in positive cases and hospitalizations led to restored restrictions.
Since then, limitations on religious gatherings have eased, with many places of worship allowed to continue operating at limited capacity. Throughout the pandemic, religious organizations have been strongly encouraged to provide alternative options, such as virtual services.
Concerns surrounding protests and religious gatherings continue to evolve on both a local and federal level. For now, the public can expect some element of restriction, especially for religious services held indoors. In the long-term, the pandemic and protests may shape how we regard constitutional rights and their possible suspension in times of emergency or civil unrest.