First Amendment protects worship, too
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
— First Amendment to the United States Constitution
Millions of citizens across our country have recently exercised their First Amendment right of the people to peaceably assembly. In our state, Gov. Andrew Cuomo has supported the protesters — though the governor is quick to separate protesters from rioters — and encouraged them to exercise their First Amendment right to protest. He also, however, is quick to admit that doing so will likely lead to a spike in COVID-19 infections and encourages all protesters to get themselves tested.
The governors are right. Protestors — including those who assembled peaceably in Keene, Saranac Lake and Tupper Lake — have a right to raise their voices in a peaceful manner. Those who have assembled should be commended, particularly those who practiced appropriate social distancing and wore masks.
Why, though, is there an incongruous handling of another right enumerated in the First Amendment? The right to peaceably assemble, after all, isn’t the first right enumerated in the First Amendment. That honor belongs to religion. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” the amendment begins.
Governors are encouraging people exercising their right to protest while placing limits on those same people’s rights to exercise their religious beliefs.
There should be rules for worship services, of course. We realize that religious events have been vectors for spreading the coronavirus; well-noted examples in Westchester County and South Korea led to numerous infections. Also, many religious gatherings involve singing, sharing bread and wine, and other things that can spread viruses in saliva droplets. But in-person worship services could be allowed with restrictions specific to those things rather than being shut down entirely, as they have been since March.
Granted, that changes this weekend, when New York will allow in-person religious services at 25% of a place of worship’s capacity. It’s worth noting, however, that restaurants and bars will be allowed to reopen at the same time at 50% capacity. Viruses could spread just as easily there.
That discrepancy makes little sense. Nor, frankly, does the U.S. Supreme Court’s decision on Friday in which the court rejected a request from a church in California to block enforcement of state restrictions on attendance at religious services. Justices Clarence Thomas, Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh noted dissents. Kavanaugh’s, though, is interesting.
“The state cannot,” Kavanaugh wrote, quoting from an appeals court decision in a different case, “‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.'” Later, Kavanaugh noted, “The church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices.”
That logic makes sense. Governors are trusting people to be responsible in any number of situations, including exercising their right to peaceably assemble. In our view, governors should give the same deference to the first right enumerated in the First Amendment — the right to worship.