At any given moment and place in this crisis, there is no clean line between the constitutional right to freely exercise faith and the moral mandate to protect lives. In a close call, however, and in any genuine crisis, the first obligation of government is to safeguard public health when it is endangered by a deadly threat.
A small number of faith leaders have bridled at the strictures against gatherings for religious services imposed by governors and local leaders. Some, splitting the difference, have convened church parking lot services, where congregants are expected to remain in their socially distanced cars — potentially a workable solution, providing the faithful follow the rules. Others have taken refuge in hyperbole, such as the pastor of a Christian megachurch in Florida, Rodney Howard-Browne, who was charged with unlawful assembly and violating a stay-at-home order after holding Sunday services with hundreds of congregants. He finally shuttered the church and bowed to a threat arising, he said, “not from the virus but from a tyrannical government.”
In fact, the constitutional guarantee of civil liberties is not absolute, and its abridgment is not necessarily an act of tyranny. Dangerous speech — falsely shouting “fire” in a theater and causing panic, in Justice Oliver Wendell Holmes Jr.’s pointed example — is no more protected than dangerous assembly. And right now, in most communities, traditional religious assemblies are dangerous petri dishes that enable the transmission of a deadly virus.
The United States faced a similar tension between civil liberties and a different (but still potentially lethal) threat to public safety in the aftermath of the terrorist attacks of Sept. 11, 2001. In that instance, the public’s support for safety over freedom was greatest at the outset of the crisis, when the danger seemed most palpable. The balance subsequently shifted as the peril seemed to recede.
That may happen in the coming months, assuming the rate of new infections and the death toll dwindle. Already, there is mounting political pressure, especially among conservatives, to return to “normal” life, with a premium on pre-pandemic patterns of mobility, assembly and work. In many states, protesters, flouting social distancing guidelines, have gathered in state capitals to denounce stay-at-home orders. If any individual wants to put herself at risk, some said, that is her inalienable right.
That facile reasoning crumbles against the rock-hard reality of coronavirus transmission. In this pandemic, the reach of an individual’s freedom to be foolish ends an inch away, where the next individual is entitled to protection against the peril posed by the fool’s heedlessness. Hence the closure of concert halls, sports arenas, restaurants and gyms. For now, the same rationale justifies and requires closing the doors to churches, synagogues, mosques and other traditional venues of worship.