News and discussion about COVID-19 has come to overshadow every other topic lately. Thus it is that the annual BYU Religious Freedom Annual Review conference held (virtually) last week at the BYU Law School was titled “Religion and Religious Freedom in the COVID-19 Era: Finding Community and Hope.” Elder Bednar of the Twelve gave the introductory talk for the conference, which is summarized at the Newsroom with the title “COVID-19 Crisis: A Wake-Up Call for Religious Freedom.” There’s a link in that post to the video of Elder Bednar’s talk. Let’s talk about the talk. Maybe you like it. Maybe you don’t.
Note: I’m not sure the summary at the Newsroom really did the talk justice. If you have the time, watch the 30-minute talk as well as reading the Newsroom piece.
What Elder Bednar Said
If you don’t like what Elder Bednar said, what you probably don’t like is his frustration with the idea that some governments have limited or temporarily abrogated the ability of religious communities to meet in large groups. He obviously does not object that such temporary limits were unwarranted — the Church imposed its own suspension of Sunday church meetings about the same time government measures started going into effect and the Church did so worldwide. His central point seems to be unhappiness that this episode has set a precedent whereby the government can exercise that power and limit church gatherings and events, not that governments have abused that power in the current COVID-19 situation. He claimed:
COVID-19 has alerted us to the importance of defending the borders between personal liberty, constitutional rights, and governmental authority. COVID-19 has alerted us to many attacks on the freedoms of religion, speech, and assembly.
I’m not sure his suggestion that recent government action has improperly infringed on personal liberty or constitutional rights (much less suggesting there have been recent attacks on religion) really makes sense. State and local governments have broad power to institute laws and regulations to protect citizens, often to protect them from themselves. They may be standing regulations or they may be temporary measures due to a short-term crisis, like evacuation orders for certain areas if a hurricane is approaching. Health and safety laws and regulations are just part of life, and few people object to that power on principle. You have to wear a seat belt and obey speed limits; if you don’t, you may be cited and have to pay a fine or face other sanctions. You may want to go 55 in a 35, but that puts other citizens at risk. You may want to have a religious revival with 500 people or a Sunday meeting with 200 people in the midst of the pandemic, but that puts those attending and other citizens (who would be exposed to those who get infected at the religious gathering) at risk. Religious freedom as a general principle and a constitutional norm does not give religious communities a blanket exemption from particular government safety regulations, whether building codes, fire codes, or health orders of the kind we have experienced lately.
Now I should note that governments cannot enact and enforce regulations that target religious practice or a particular denomination’s practice; it’s only general laws and regulations that can properly be applied to religious communities. In his talk, Elder Bednar stated that some governments “banned communal worship” as part of their COVID response. That is misleading and inaccurate. Governments could likely not ban religious meetings in particular while allowing other large gatherings (that is, courts would likely deem unconstitutional and void a law that targeted only religious gatherings while allowing other similar secular gatherings, even in the face of a crisis like COVID). What governments did was ban large gatherings of all kinds. The impact on religious gatherings was an incidental burden, not a specific measure directed at religion, so it is proper.
It’s more likely that what Elder Bednar is really upset about is the idea that pet stores and liquor stores and your local cannabis shop were sometimes deemed “essential services” while religious gatherings, apparently not so essential, were required to be suspended. He referred to this in his talk. He described the various governmental responses, however reasonable and well-intentioned in the circumstances, as “a profound devaluing of religion.” I think if pet stores sponsored a weekly gathering of 200 dog owners (who sing songs to each other and pass a group snack around that everyone touches and breathes on), that risk would outweigh getting fancy dog food for Fido and or kitty treats for Cuddles, and pet stores would be closed, too.
I’m sure LDS leaders don’t like the idea that church services are unessential enough that life goes on fairly well without weekly church meetings. I’m sure LDS leaders *really* don’t like the fact that lots of mainstream Latter-day Saints are making the surprising discovery that life goes on fairly well, even better, without weekly church meetings. Honestly, do you know anyone who really misses Sunday meetings? Imagine a meeting of the Big 15 where the LDS Social Media Monitor puts up a slide with some Facebook quotes from a few Molly and Peter types with comments like, “Wow, Sundays are a lot more relaxing without church meetings.” Or, “It wasn’t until the lockdown that I realized how much I didn’t like going to church.” You get the idea. No wonder Elder Bednar is upset.
Maybe you like the video that is part of Elder Bednar’s talk. It was sort of a riff on The Lorax, expressing hope that the COVID crisis will somehow lead to environmental renewal and everybody being kind to one another. Hey, at least it made traffic in Seattle better. Maybe it will make people nicer, too.
I wonder if a modified form of this address might become Elder Bednar’s talk at the next General Conference.
What Elder Bednar Didn’t Say
There is a parallel set of issues that Elder Bednar did not address: the conflict between personal liberty and the institutional right or duty of the Church to protect its membership. Will the Church (or a local congregation) require masks? Or allow individual members to exercise their “personal liberty” to not wear a mask?
Another issue: Will the Church (or a local congregation) require members to disclose a positive COVID test to their bishop? If so, will that bishop let other ward members know so they can make an informed decision about whether to attend Sunday meetings? Or will individual members be allowed to keep private their own medical and health conditions? This one is a tough issue, putting one’s personal right to keep medical information confidential into conflict with everyone else’s interest in knowing that someone in the congregation who chooses to attend Sunday services tested positive and might be contagious. And this also raises the related question of the duty of the Church (or a local congregation) to protect attending members from known risks. Will any local units institute temperature checks at the door and bar those whose temp is over 100?
Another issue: Will the Church continue giving broad discretion to local areas, stakes, and wards regarding how they structure resumed meetings and what measures they require, recommend, or prohibit? There is going to be a couple of months where various stakes and wards try out a wide variety of plans and procedures. I’m thinking that at some point the Church is going to recognize that some plans and procedures work better than others, and send out a set of guidelines or requirements that tighten up what local units can or should do.
The bottom line: I don’t think the COVID crisis has raised any new constitutional issues for freedom of religion. If anything, it has confirmed the wisdom of the standing constitutional doctrine, announced in Employment Division v. Smith (1990), that valid, neutral, and generally applicable laws extend to religious organizations as well as secular ones. I think the conflicts that are going to arise between personal liberty and institutional duty are going to be at the congregational level between members and the congregation or between the members and the bishop.