The is the first installment of a three-part blog series on Religious Freedom, the topic of NT-NL’s Fall Convocation. This entry focuses on the current debate regarding religious liberty and stay-at-home orders that limit in-person worship. The second installment will explore how rights, including religious liberty, are best employed to protect the existence of the weak rather than the prerogatives of the powerful. The third will present a Lutheran perspective on the nature of freedom itself.
Religious freedom has taken center stage in how the United States is responding to the COVID-19 coronavirus pandemic. Religious liberty, as we also call it, has become a central feature of concerns regarding “reopening.” Along with that entire debate, the conversation is deeply partisan. A path through this thorny thicket must be discerned.
I am passionate about these questions, so I’m thrilled that this year’s NT-NL Fall Convocation will focus on religious freedom. The topic has become surprisingly relevant; we will be enriched by the presence of Dr. Stephen Stookey, Dean of Religion at Wayland Baptist University.
In this series of blog posts, intended to identify some themes to discuss during our Convocation, I will address some aspects of religious liberty in the United States along with resources for Lutheran Christians addressing these foundational questions. These are vital questions touching on mutually constructive relationships between religions and states (not just the “separation” of “church and state”). The nature of freedom is itself a deeper topic that touches on themes highlighted by this crisis, including care for the neighbor.
These are political questions. They have to do with the polis and the demos, the city and the village. Because faith (and religion) shapes how one acts in the world, no exploration of faith is without political consequences. They are political, but they are not necessarily partisan. Critique of the state itself is distinct from endorsing of this or that political party or leader.
On Friday, May 22, President Trump announced that houses of worship are “essential” and that he intended to override any state governors’ orders indicating otherwise. Apart from the question of whether or not the President of the United States has the legal authority to override governors’ directives, the President’s move was an attempt to appropriate the defense of faith into his ideological horizon.
Public health directives—often called “stay at home orders”—have been put in place to control the spread of the COVID-19 coronavirus. They directly affect people’s lives and livelihoods by closing places where the virus can easily spread. Multiple studies and reports (here, here, and here, among others) have indicated that worshiping communities are prime locations for viral spread.
Some people argued that stay-at-home orders limiting possibilities for worshiping communities were a violation of the US Constitution, which states, as part of the First Amendment, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
With others, I have argued that, in the midst of a pandemic crisis, the First Amendment is not absolute. Just as the same Amendment’s prohibition of any law “abridging the freedom of speech” does not allow one to shout “Fire!” in a crowded theater, public safety and health provide a clear rationale for limiting in-person worship. Under Bishop Gronberg’s guidance, our synod has strongly and repeatedly adhered to this perspective.
Along with just about everything else related to the US response to this pandemic, “religious freedom” has become a partisan issue. Under Attorney General William Barr’s direction, the US Department of Justice has filed briefs in several states with Democratic governors, indicating its opinion that “there is no pandemic exception to the U.S. Constitution and its Bill of Rights.”
Such “strict constructionist” readings of the US Constitution help explain why public protests against stay-at-home orders often involve the display and brandishing of firearms. This sort of reading ties the First and Second Amendments together in absolutist terms, engendering political cultures of paranoia and conspiracy.
President Trump has encouraged this “culture war” by linking anti-lockdown protests with the Second Amendment and condemning “governors [who] have deemed liquor stores and abortion clinics as essential but have left out churches and other houses of worship.”
In a time when even epidemiological guidance is made to run a partisan gauntlet, any discussion of “religious freedom” is skewed by political bias. The question of when and how to reopen worshiping communities and related institutions is complicated enough without injecting partisan rancor.
There is an argument to be made that any US law concerning religion that leads to “prohibiting the free exercise thereof” should be considered invalid. But there are equally compelling arguments for other interpretative approaches. When, for instance, governmental directives are aimed at the whole of society and not religious communities alone, the intent of those policies is not solely bound up with limiting religious practice. Moreover, no system of faith was outlawed (as in the former Soviet Union); only certain culturally conditioned norms of practice were challenged as harmful to the greater good of public safety.
A strict constructionist reading of the Constitution does not locate the word “pandemic” in the document; but neither does it find the words polygamy or child marriage, biblically sanctioned practices prohibited by US law.
My point is this: interpretation (legal and otherwise) is not robotic. Instead, jurisprudence involves prudence, the practice of wisdom.
What are religious leaders to do in this politically charged moment?
Religious communities have a lot at stake on both practical and theoretical levels. On the practical level, we do not wish to be vectors of viral spread and must not allow ourselves to be appropriated to any one partisan or ideological agenda. On the theological and jurisprudential level, we must resist illegitimate governmental encroachment into the religious sphere. Determining what is legitimate and illegitimate is no simple matter.
We are pressured on all sides as we consider opening our spaces for in-person gatherings. In addition to the pressures common to all businesses and institutions wishing to respond to their constituencies and achieve sustainability, religious communities respond directly to people’s social needs and spiritual wellbeing. We are on the frontlines, responding to effects of this pandemic, both direct and indirect.
In this context, the least prudent thing religious leaders can do is adopt a political ideology or, worse yet, fleeting political rhetoric, as a foundation for discerning the best practices for protecting the health of our worshiping communities and our surrounding neighbors.
We must instead draw from the best within our traditions in order to guide our people through a deeper process of discernment. As we read in Ephesians, “We must no longer be children, tossed to and fro and blown about by every wind of doctrine, by people’s trickery, by their craftiness in deceitful scheming” (Ephesians 4.14).
It is on these questions that Lutheran Christians have a particular perspective, a particular word deeply relevant to the present. Early in his efforts to reform the church, Martin Luther provided a theological and intellectual foundation for mutually limiting states and religions from interfering in the proper spheres of each.
As John Witte has argued, the Lutheran Reformation helped shaped the foundations of modernity itself, providing the intellectual basis for the American experiment known as the United States. This idea of the “two spheres” or “two kingdoms”—developed through Luther’s theological reflections on the dual nature of law—was the foundation for modernity’s concept of the “separation of church [or, more inclusively, religion] and state. Without this intellectual achievement, there would be no concept of “religious freedom.”
On the whole, Lutherans seek a healthy relationship with the State (any governmental system, not just the United States, and not just the federal government). Part of that healthy relationship is the state’s responsibility to ensure that religious practices do not endanger its citizens, especially those who are vulnerable. Another part is the church’s responsibility to critique the state when necessary, when it is creating too much or too little law, or when protections under the law are unequally applied. Outside of these things, it is important that neither institution—religious or civil—interfere in the processes and functions proper to each.
Luther argued that both the church and the state are instituted by God to seek the welfare of the people, though with different spheres of responsibility. The relationship is dynamic and situational, changing in different times and contexts. As our speaker for the 2020 Tri-Theological conference, Michael DeJonge, has argued, Dietrich Bonhoeffer relied on these Lutheran principles in order to critique and, eventually, directly resist the Third Reich.
Lutheran principles can contribute to arguments on either side of the religious freedom shutdown debate. That’s one of the elegant aspects of our tradition, with its refusals of simplistic either/or arguments and recognition of dialectical tensions. Given this rich tradition, we have the strength to not be easily swayed by the announcements or tweets of this or that politician, especially in the midst of election season.
In the next installment of this blog series, I will explore the nature of “rights” and their protection of minority groups.
The Rev. Robert O. Smtih, PhD, directs Briarwood Leadership Center (Argyle, Tex.).