The Washington PostDemocracy Dies in Darkness

Opinion I told fellow believers our liberties would be protected in the pandemic. The court proved me wrong.

A woman prays before speaking at an Easter drive-in service at the International Church of Las Vegas in April. (John Locher/AP)
Comment

Matthew T. Martens is a partner in the Washington office of WilmerHale. He is also a seminary graduate and former U.S. Supreme Court law clerk who has litigated religious liberty cases arising out of the pandemic.

For 47 years and nine months of my life, attending church services was a weekly part of my routine. Since birth, I have attended worship services several times for several hours a week. I am not unusual in this respect. Millions of Americans, in urban areas and rural communities, whether of my faith or another, worship in similar ways with equal frequency.

That changed in March, when governments urged, and many even mandated, that Americans avoid religious gatherings. Although uncomfortable with these restrictions, I have complied for the past 20 weeks. Since mid-March, I have not attended worship gatherings save for a single service held in a parking lot with rigorous social distancing and a makeshift observance of the Lord’s Supper.

For those who do not share my faith, this may seem a minor inconvenience. In reality, it is a grievous burden. For me, weekly religious gatherings are a matter of deep conviction. The Apostle Paul urged that believers not neglect assembling. Christians believe that in-person interaction is a necessary part of spiritual growth, that the Scriptures were meant to be read in community, that the risen Christ is uniquely present in the physical assembly of believers, and that Christ is present in the sacraments that can properly be administered only by a minister. Online “worship” is, in my faith, no substitute at all.

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I understand that, for those who do not share my understanding of Christianity, these beliefs may seem strange and my grief over their loss overblown. What I have always cherished about America is my freedom to observe my faith in ways that others may not appreciate.

But as months have passed, I have grown increasingly concerned with seemingly arbitrary lines drawn by government officials attempting to address the pandemic. Why can cars congregate in shopping-center parking lots but not in church lots for drive-in services? Why can protesters pack the streets of Washington, but no more than 50 gather for outdoor worship? Nevertheless, I assured my fellow believers that, while judges might not micromanage the closer calls, the courts would protect religious liberty against the most egregious government overreach.

My confidence was dashed last Friday. In a 5-to-4 ruling in Calvary Chapel v. Sisolak, the Supreme Court let stand Nevada’s order allowing gamblers to crowd casinos at up to 50 percent of their capacity, while forbidding worship gatherings of more than 50 congregants. The court’s refusal to intervene was a travesty. The order, by Nevada Gov. Steve Sisolak (D), transparently favored corporate financial interests while discriminating against religious ones.

There is no credible reason for subjecting churches to different capacity limits than movie theaters, or for imposing an arbitrary cap on worshipers, which is completely impractical for large congregations. Calvary Chapel developed a robust safety plan that included shortening its services, altering Communion practices, spacing congregants by family, sanitizing between services, and numerous other steps. The governor offered no medical evidence to support his position because there is scant if any scientific basis to believe that church auditoriums are riskier than gambling halls and movie multiplexes.

And the free exercise clause requires such justification. As Justice Neil M. Gorsuch put it in his dissent, “there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

As a worshiper, I find it hard to overstate the pain the court’s action inflicts. I and millions of other believers are willing to join our fellow citizens and sacrifice cherished rights for the sake of public safety. But we are unwilling to be singled out to bear a burden from which gamblers and movie enthusiasts are exempted. If the science, which we are told is guiding these decisions, has pronounced crowded craps tables and movie theaters safe, then surely socially distanced worship services — without singing, if advisable — are as well.

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Understandably, the Supreme Court does not want to spawn a cottage industry of high-stakes scientific second-guessing of government officials working to control a pandemic. But are there really no limits to what governments can do in an emergency? Is no line too arbitrary and scientifically unsupported for the courts to intervene? Is no favoritism of economic interests over religious ones too transparent for the court to see through?

The court’s inaction stripped me of a needed basis to urge fellow believers to continue observing the government’s mandates. While I again missed church this Sunday, others responded differently. One of evangelical Christianity’s most influential pastors resorted to civil disobedience and resumed mass indoor church gatherings in California. Others will follow suit. And their defiance will predictably be a defiance of not only their governments’ most unreasonable regulations, but also the more reasonable ones. Having lost confidence in both the government’s goodwill and the court’s commitment to the constitution, the faithful will fend for themselves.

Read more:

Henry Olsen: John Roberts strikes again. Conservatives should be furious.

The Post’s View: In-person church services right now are an affront to public health — and morality

David Platt: These days I preach to an empty room. But I see my church clearer than ever.

Mary Vought: With appropriate distancing measures, Virginia churches should be allowed to conduct services

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