At the outset of the pandemic restrictions the near-unanimous answer to that question was no. I shared that view.
Obviously a state directive to close a church and suspend the sacraments, to that end alone, would be a violation of religious liberty. An unjust law, it would not bind a citizen in obedience.
But the pandemic restrictions were not like that. It was the gathering that was banned, not the religious purpose. It applied to everyone, not just religious gatherings. One might consider them analogous to building codes or fire safety regulations. The civil authority might close a church on those grounds, but it would not be a religious liberty issue.
“No one right is utterly absolute, that includes religious freedom,” said Archbishop William Lori of Baltimore, the leading American Catholic voice on religious liberty issues. “It’s always been recognized that sometimes there is an overriding concern on the part of the government and that people of faith have to take note of that and abide by it.”
That was March. It is now June. And what was a widely held position has shifted.
In early May, the Italian bishops heavily criticized the government’s re-opening plan for not including worship in churches.
“It should be clear to everyone that the commitment to the service of the poor, so significant in this emergency, arises from a faith that must be able to nurture itself from its sources, in particular sacramental life,” the bishops said.
Rebuked by the bishops, the Italian government then made an agreement with the bishops’ conference which allowed public Masses to begin on May 18.
On May 28 in Australia, Archbishop Anthony Fisher of Sydney blasted government guidelines that favoured pubs and cafes over churches, saying that he was standing up for religious freedom “when I see so many double standards being applied to people of faith.”
The next day the government revised its position. Public Masses were permitted in Sydney as of June 1, with a maximum of 50 people, the same regulation applied to pubs and restaurants.
On Pentecost Sunday, Cardinal Vincent Nichols of Westminster questioned the double standards being applied by the British government, noting that car showrooms and shops are opening.
“We are told that these openings, which are to be carefully managed, are based on the need to encourage key activities to start up again,” Nichols said. “Why are churches excluded from this decision?”
Archbishop John Wilson of Southwark, the archdiocese which covers the parts of London south of the River Thames, went further, noting a “growing frustration that churches remain closed.”
“At stake here are two paramount principles,” Archbishop Wilson said. “The first is freedom of religion and the second is basic equality and justice. Total church closure was justifiable in the initial weeks of the pandemic. However, to enable non-essential shops and services to open, while keeping churches closed for individual prayer, is an infringement of both religious freedom and equity.”
In Milwaukee, Wisconsin, Archbishop Jerome Listecki, opened his churches for Pentecost at 25 per cent of capacity, despite a civic order limiting all gatherings to 10 people.
Next door in Minnesota, all the Catholic bishops, along with the Lutheran bishops in the state, announced on May 20 that they would open their churches on May 26 at 33-per-cent capacity despite state orders to the contrary. The bishops noted that shopping malls and big box stores were permitted to have hundreds of people in them, but churches were limited to 10 people.
Citing religious freedom, the bishops said they would simply defy the state order. Four days later the governor revised the order, permitting worship at 25-per-cent capacity.
Cases often take years to reach the U.S. Supreme Court. Yet last week it already rendered its first coronavirus verdict, 5-4, upholding California restrictions on churches. The case had been brought on religious liberty grounds by a Protestant church. It was considered urgent enough to warrant an emergency hearing, even if the judgment went against the church.
Local situations are complex and it is not possible to simply transfer principles and practices from one place to another. Yet it is noteworthy that the consensus in March that pandemic restrictions did not violate religious liberty has fractured, as double standards are applied to the detriment of houses of worship.
(Fr. de Souza is editor-in-chief of Convivium.ca and a pastor in the Archdiocese of Kingston.)