Constitutional scholar: States have precedence on church opening decisions


WJHL – When President Donald Trump said on May 22 that churches should reopen with in-person services regardless of any states’ mandates prohibiting or limiting such services, did he have any Constitutional ground on which to stand?

The 10th Amendment of the U.S. Constitution gives the states clear power to police activity in the pandemic, including whether and how churches can open, a constitutional scholar said.

Stewart Harris, a professor at Lincoln Memorial University and host of the syndicated podcast “Your Weekly Constitutional,” said that fact doesn’t prevent a president from having influence over society’s actions at times such as this.

States must also be careful in not misapplying those 10th Amendment powers, particularly when it comes to the freedom of religion enshrined in the First Amendment.

The powers not delegated by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

10th Amendment of the united states constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

First Amendment to the United States Constitution

“The free exercise clause essentially means the government needs to stay out of religion and doesn’t need to be telling people how to worship,” Harris said.. “That’s the one that’s most implicated these days because a number of pastors and a number of very sincere believers think that the restrictions that are placed, especially on in person meetings at churches, violate their right to freely exercise their religion. Boy, they’ve got a point, don’t they?”

That free exercise can take second place to public health and safety in the case of a pandemic like COVID-19, Harris said. The so-called police power reserved to states “is the inherent power to protect the health and the welfare of its own people,” Harris said.

That’s been the basis of a variety of restrictions placed by governors on everything from gatherings for sporting or music events to non-essential shopping to allowing children to use playgrounds, which are common touch points.

Churches, Harris said, are places of close contact, with passing of the peace during greeting time, singing (which is thought to project aerosols even further than normal interactions) and communion.

“So it’s a clash of constitutional concepts, isn’t it?” Harris said.

Neutral application the key

There are two main requirements for imposing restrictions that can be difficult to bear, including for people wishing to meet with fellow believers. First, sufficient evidence must exist for the necessity of police limitations on normal activities — in this case, to prevent spread of the virus.

Additionally, Harris said, the power must be applied in a neutral manner.

“When you talk free exercise, the general rule is this. If the government is enforcing a law that’s neutral, that is, it’s not aimed at any particular religion, and is generally applicable, that is everybody has to obey it, well then religion does not get any special exception.”

Trump’s protestations notwithstanding, states are on solid ground in keeping reasonable and neutrally applied limits or even prohibitions in place, Harris said. He can’t specifically override governors and have the weight of law behind him.

If that’s what he wishes to say he may certainly do so, but in terms of actually having the power to countermand if you will a governor’s or a state’s order to not have in-person religious services, he has no such power,” Harris said.

Trump does, however, have the proverbial “bully pulpit” used to good effect by many presidents through the years.

“People take their cues from him,” Harris said. “The fact that he’s saying these things will probably embolden a number of very well-intentioned ministers, preachers and others all around the nation to go ahead and do what they want to do, which is have their in-person services, because after all ‘the president said I could.’

“Even though … the president’s word had no legal effect and these people could still be cited and arrested for doing this, they’re probably much more likely to go forward.”

And when it’s not neutral?

Harris mentioned one other issue. States sometimes misstep, and then they can bump up against the Constitution or other laws, he said.

“For example, drive-in church services…Why not let the church have a bunch of cars in the parking lot, look at the pastor up on the church porch, perhaps with a speaker system or a local FM transmitter?”

Indeed, both Louisville, Ky. and Chattanooga, Tenn. saw their bans on drive-in church challenged in court. A judge in Louisville granted a restraining order in favor of the church, while Chattanooga reversed course after a suit was filed.

“Now you no longer look like you’re being neutral, you look like you’re singling out churches. You can’t single out religion and hold it to a higher standard than you do Walmart, or the Sonic Drive-In or whatever else.”

That’s the way it should be, Harris said.

“When you exercise any governmental power, you can’t act arbitrarily, you can’t be capricious — you’ve got to exercise that power in a reasonable fashion, and sometimes it doesn’t happen.

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