There are several religious freedom issues in our responses to the coronavirus pandemic. One is restricting access for chaplains, among others, to health care facilities and homes for the elderly. But the most contentious issue has been some outright government bans on most religious gatherings, as in the UK, or restrictions to groups of less than ten people. In South Korea, over half the cases are connected to the semi-cultic Shincheonji Church of Jesus, and hundreds of Protestant churches held services last Sunday despite government orders against large public gatherings.
Some have argued that such restrictions are a violation of religious freedom, while others have argued that they are responsible and legitimate government action. I believe that both positions are, or can be, correct.
Are These Restrictions Limits on Religious Freedom?
On the first issue, whether these are restrictions on religious freedom, we can define such freedom in two (very probably many more) ways. One is to define religious freedom normatively as a freedom that, like all freedoms, is inherently subject to many restrictions—such as others’ rights to life or health. Here religious freedom is defined as a freedom that is, like all others, necessarily restricted by other freedoms, and also by the duties that we all must follow.
This is similar to the position taken in Article 18 of the International Covenant on Civil and Political Rights: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”
Authoritarian governments often misuse such limits as a pretext for repression, but this does not mean that they are in themselves wrong. Every right is always related to other rights and may be balanced by them. If we take this approach, and if we believe that most current democratic governments’ actions are proper, then we would conclude that restricting larger religious gatherings does not violate religious freedom.
An alternative is to define religious freedom in very broad terms without including any possible restrictions in the definition. But we could then add that religious freedom may legitimately be restricted in certain circumstances but that we need to call a spade a spade and call these restrictions what they are: actual (if justifiable) limits on religious liberty.[i]
In the first position, we would say that if government actions are proper then they are not a real restriction of religious freedom. In the second position, we would say they are restrictions on religious freedom but that they are justifiable.
There are risks in each of these positions, but they often lead to the same practical conclusion. Many of the differences may be largely semantic. Here, the major need is to be clear about what we actually mean: several of our disputes about religious freedom stem simply from using the term in these different ways.
Are These Government Restrictions Legitimate?
On the second matter, about whether government action is legitimate, the key question is not whether such restrictions limit religious freedom per se, but whether these restrictions are just, proper, and constitutional.
Those who object to enforced government restrictions usually maintain that they assert the power of the state over the church and other religious bodies, and are therefore both normatively wrong and, in America, violate the First Amendment.
However, churches and states are nearly always and inevitably intertwined. In the US, people often use the non-constitutional metaphor “the separation of church and state” as shorthand for the First Amendment itself. It is usually a simple if naïve restatement of the respective different authorities of these bodies, ultimately reflecting Pope Gelasius I’ description of the two swords in his AD 494 letter to the Emperor Anastasius:
There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power… If the ministers of religion, recognizing the supremacy granted you from heaven in matters affecting the public order, obey your laws, lest otherwise they might obstruct the course of secular affairs by irrelevant considerations, with what readiness should you not yield them obedience to whom is assigned the dispensing of the sacred mysteries of religion.
But at times the loaded word separation is taken in a literal sense to mean that these two bodies can somehow be sealed off from one another, and neither has any authority over the other. But church and state are not two atoms that never touch: they interact with each other according to their own jurisdiction. As Gelasius noted, the emperor has supremacy in temporal matters, which members of the church should follow, and the church has authority in the “sacred mysteries of religion,” which the emperor should follow.
Each has authority according to their respective missions. For example, churches have criticized and denied communion to politicians whom they believe are violating church teachings, and it is not, so far, in dispute that a church can decide for itself who may receive communion. This is an authority over politicians, not the power of the sword but a discipline over the sacraments. Our secular age may regard this as minor opprobrium, but many politicians with eyes on polls may take it more seriously. It is the power not of the sword but of the word.
On the other side, a government may legitimately close buildings, including church buildings, if a fire marshal properly pronounces the structure unsafe. Even in actually constructing church buildings, churches do and must follow government fire and building codes. They accept proper government restrictions on the nature of their sanctuary.
Church and state have legitimate authority over each other in their respective spheres as long as they do not seek to usurp the proper role of the other. A church cannot try to take over governmental power or use physical coercion. A government cannot dictate a church’s doctrine or mission.
Governments internationally, and federally within the US, have imposed widely varying restrictions, and there can certainly be arguments about the range and prudence in each particular case. But, as a matter of principle, I believe that in Western democracies most of the disputed government actions around the coronavirus are necessary, somewhat like the fire marshal writ large. Such restrictions are for a limited time, even if we do not now know what that time limit is. They also do not single out the church—these are rules to be applied to almost any gathering. And they do not seek to usurp church teachings or mission.
Each individual case needs prudential judgment but, in principle, I believe that restrictions on religious gatherings are legitimate government actions, and that churches and others should as a matter of conscience follow them.
Paul Marshall is Wilson Professor of Religious Freedom at Baylor University, a senior fellow at the Hudson Institute and the Religious Freedom Institute, and a contributing editor of Providence.
[i] Article 18 of the International Covenant on Civil and Political Rights can be read to support this position also.