Religious Freedom Ruling Still Misses the Point

In late October, U.S. District Court Judge Daniel D. Domenico ruled in favor of two Colorado churches and against the state of Colorado, exempting the churches from emergency-ordered occupancy and masking requirements. This ruling, which under equal protection must apply to all Colorado churches, found that churches could not be treated differently than other establishments where people congregate (stores, for example). While this was a clear victory for Colorado’s churches, the ruling missed the mark in terms of the actual legal protections afforded churches. In his ruling, the judge wrote:

The State rightly argues that during a public-health emergency, courts must be particularly mindful of the complex interaction between constantly evolving scientific understanding and policymaking…”

“The First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors.”

The judge also granted a preliminary injunction against the requirement for face masks in churches, stating that “the Constitution does not allow the State to tell a congregation how large it can be when comparable secular gatherings are not so limited, or to tell a congregation that its reason for wishing to remove facial coverings is less important than a restaurant’s or spa’s.”

With all due respect to the judge, this injunction misses the point. The Constitution of the United States does not read, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, unless such laws are in keeping with similar regulations governing businesses.” Simply, the first amendment recognizes the right to free exercise of religion, and disallows any law that would prohibit it. In a Christian church, gathering is a required part of religious practice, absent symbols or legalisms like face coverings.

What is being disallowed by force of law is not some crazy human sacrifice ritual – it is the normal gathering of believers to worship. This is the exact behavior the Constitution protects. The Constitution makes no such explicit allowances for businesses, although the right to peaceably assemble certainly should allow stores freedom to welcome groups of shoppers.

Even if the Colorado executive orders limiting free were law (they are not), the incorporation doctrine (through which the Constitution is made applicable to the states by way of the 14th Amendment) subjugates such state laws and renders them by definition unconstitutional. To be fair to the judge, he does discuss the normal unconstitutionality of the suspension of Constitutional rights, and references Justice Robert H. Jackson’s dissent in the famous Korematsu v. United States case of 1944, who stated:

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here, he is not law-abiding and well-disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

The Korematsu decision was (basically) struck down a mere two years ago, validating Jackson’s defense of Korematsu’s Constitutionally-guaranteed liberties. We can imagine the exact same text applied to Korematsu in 2020 but in the context of coronavirus restrictions. While the specifics of the 1944 case dealt with the military restricting the rights of Japanese-Americans in an emergency simply because they might be dangerous, the exact same Constitutional principles apply to citizens harmed by Colorado’s (and other states’) coronavirus restrictions. The government has not been able to demonstrate criminality or threat from individual citizens, yet has presumed to strip them of their rights.

Unfortunately, the temporary injunction finds primarily on the basis of the disproportionate treatment between churches and businesses, but it should have found on the basis of the first amendment Constitutional protections for freedom of religion.