How free is religion?

The framers of the Constitution wisely built into the document a certain amount of ambiguity. The strict constructionists, who now seem to dominate America’s courts, suggest that every case must be decided not on the basis of any historical development, but only on what the framers originally meant. That might work had the framers been more precise, but they were not.

Among the less well-defined precepts, their slipperiness appears in the first amendment. It reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

In all the years following the Constitution’s adoption, the courts have struggled to define both the establishment clause and the free exercise clause. Often the Supreme Court’s political makeup has determined how it interpreted these clauses. My guess is that the framers purposely opted for the undefined language and left precise interpretation up to later generations. So much for “original intent.”

Let’s take examples generated by the omnipresent coronavirus. In state after state there are prohibitions about public gatherings larger than ten individuals. Larger gatherings, including religious ones, were said to be in violation. Nevertheless, they let the state or the local jurisdiction define the precise meaning of the prohibition. As devastating as the pandemic has been, our commitment to social distancing has saved thousands of lives. While many of these closed areas have slowly been opened, it appears that others must legally remain closed for the foreseeable future.
Most religious bodies responded to the order to remain closed, and yet through the wonder of streaming and other electronic tools, services have taken place in empty churches or in living rooms, presided over by solitary figures. But there were a few religious groups that maintained their traditional gathered practices.

As far as I know, none of these pastors, priests, rabbis or imams has been arrested or charged. When confronted with their violation of the law, the response has centered on the “free exercise” language of the Constitution. One minister has spelled out his position by declaring that, “public worship is a right that government cannot prohibit.” When the authorities commanded the disciples to cease their public disturbance, Peter responded “We must serve God rather then men.”(Acts 5:29). I used that biblical defense during the civil rights days when a mixed racial group demanded to be served in an all-white restaurant. While we violated the local law, we did so in the name of a higher law, and knowingly paid the price the lower law had stipulated.
Two hundred Hasidic Jews gathered in a Brooklyn park to pay their respects to an honored rabbi who had died. The New York City mayor called in the police to disperse the crowd. In this case, the Constitution’s freedom of religion clause did not apply. What did apply was the public good, and when religious practice is in conflict with the public good it seems to me that the latter must prevail.

Consider a brace of fictional absurd examples. 1. The Rev. Mr. Righteous tells members of his congregation to take from grocery shelves what was needed for a religious observance, without paying. Of course, they were arrested. 2. The gods had decreed that each year a virgin be sacrificed. The priest wielded the knife. Despite what any holy book declared, he would be tried for murder.

Now I am not a legal scholar and have not dug that deeply into the legal evidence, but I do have a modicum of common sense. If my religious tradition jeopardizes either the public good or any individual’s human rights, the freedom of religion has crossed a line. I don’t know if it has ever appeared in any judicial finding, but somewhere there must be the law of common sense.

When a religious body does something endangering either its own members or the general public, it seems reasonable for the rights of the community to prevail. Until some government authority declares public gatherings to be acceptable, even the Constitution’s freedom of religion clause must take a back seat. I’ll leave it to legal scholars to define just how this conflict between religious practices and the public good must apply. In the meantime I suggest that even the most pious should be governed by the larger good.