Trump is not the Pope and it's not the Middle Ages Anymore

            President Trump orders governors to open up the churches.  Churches defy governors and seek to open.  Someone needs to remind both the president and religious institutions that the Middle Ages are over and Modernity won.

            President Trump and many religious institutions are pushing arguments reminiscent of those found in the Medieval Christian Europe where secular authority was subservient to the Pope and Church Law.  Then the Pope claimed that he received his authority from God and princes and secular governments received their authority from the Church.  Myths such as the Donation of Constantine, Pope Gelasius I’s Doctrine of Two Swords, or the biblical injunction “ "Render to Caesar the things that are Caesar's; and to God the things that are God's" (Romans 13:1) endorsed the supremacy of Church over State.  The Church excommunicated disobedient rulers, and in 1076 King Henry IV suffered in snow on the road to Canossa, seeking absolution from Pope Gregory VII.  Those were the glory days for the Christian church.

            Yet beginning with Edict of Nantes (1598), the English Glorious Revolution of 1688, and John Locke’s A Letter Concerning Toleration, (1689), the hallmark of Modernity in the West has both been the separation of church and state and equally important, the primacy of secularism and limits on the ability of religious institutions to enforce their doctrines with civil implications and penalty.  Neither should the government enforce religious doctrine nor religion impress itself upon anyone beyond its membership.  This balance is captured in the First Amendment to the US Constitution which guarantees free exercise of religion but also bars the government establishment of religion.

            Individual rights are important, but as former Supreme Justice Scalia points out in District of Columbia v. Heller, no rights, be that in the Second or First Amendment, are unlimited (595).  There may be an individual right to own guns but the courts have ruled that felons and minors may be denied a right to possess or use, and the types of  arms may be regulated.  Free speech is a cornerstone of  a free society, but it does not entail  the right to advocate imminent lawless behavior and engage in true threats to others that threaten their health or safety. The same is true for the free exercise of religion.

            In general, individual rights are subject to limits under extraordinary circumstances.  To limit a right (not eliminate it ) the government must show a compelling governmental interest that is narrowly tailored and which is the least restrictive means of securing that interest.  Phrased otherwise, the government  must show a reason so important to limit a right and that there is no other way to accomplish it except by the action it  wishes to take.  This is called the strict scrutiny test. Restricting rights is supposed to be difficult and when strict scrutiny is employed, as legal scholar Gerald Gunther once said,  “it is often fatal in fact,” meaning seldom do or should the government win.

            Over time the Supreme Court has rightfully struck down many laws regulating free exercise of religion.  But it has held that neutral regulations that do not specifically target religion may be upheld.  These include  mandatory vaccination laws, required medical treatment for minors, laws regulating polygamy and illegal acts, and the use of illegal drugs.   Moreover, while Title VII of the 1964 Civil Rights Act authorizes churches, synagogues, and mosques exemption from the law's prohibition on religious hiring discrimination when it comes to hiring for their own organization,  the law did not give them carte blanc to discriminate.  Nor has the Court ruled that there is a general religious exemption from civil rights laws, and it has ruled that giving religious organizations a veto over some local laws is unconstitutional. These are all cases where the practice of religion may impact the health or safety of others and in some cases neutral secular laws promoting the health, safety, and welfare of the people prevail.  Wrongly the Court has opened up the ability of religious belief to impact the health and rights of women in  Burwell v Hobby Lobby, emboldening  some to think there  is a broad right to defy laws to protect the public.

            This is the situation here when it comes to religious institutions claiming  veto over  laws limiting the scope of religious services during a Covid-19 pandemic.  These laws are not specifically targeting religion and there are not banning religious services from occurring.  They are reasonable laws aiming to protect the public.  Effectively this is what the Ninth Circuit Court of Appeals said in refusing to enjoin a California executive order restricting religious services during the pandemic.

            In Minnesota and across the country churches and other religious institutions are asserting their right to defy the government and open.     This is not the same as the historical role of Christian  civil disobedience where the order from secular authority was to disobey God or a law clearly in violation of God’s laws.  Covid-19 restricts are not prescribing religious orthodoxy, they aim to prevent public harm.  Those who assert a religious “get of jail free” card to do whatever they want  wrongly seem to think that they can live by their own set of laws and rules.  For those who fear Sharia law as overriding secular US law, the same  principle applies here. Government cannot target religious practice, and religion does not have a free pass from all government regulation.

            The Middle Ages was all about asserting religious authority over secular institutions.    Last I knew, Modernity won.