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De Blasio’s Church Threat Is Unconstitutional

Banning public gatherings in a crisis is constitutional. Keeping them closed afterward is not.

There have been accusations of First Amendment violations in orders that prohibited church gatherings due to Coronavirus. Some have claimed that those orders violated religious freedoms because they included churches. Those people were wrong, but now New York Mayor Bill De Blasio has gone a step beyond what the law allows.

In a televised address, De Blasio told New Yorkers, “A small number of religious communities, specific churches and specific synagogues, are unfortunately not paying attention to this guidance even though it’s so widespread. I want to say to all those who are preparing for the potential of religious services this weekend: If you go to your synagogue, if you go to your church and attempt to hold services after having been told so often not to, our enforcement agents will have no choice but to shut down those services.”

De Blasio then said that law enforcement had been instructed “if they see worship services going on they will go to the officials of that congregation and they will inform them that they need to stop the services and disperse. If that does not happen, they will take additional action up to the point of fines and potentially closing the building permanently.”

To be clear, quarantines and orders limiting public gatherings are both legal and constitutional. The understanding of the need for quarantines goes back beyond the understanding of germ theory. The CDC notes on its site that the word “quarantine” dates back to the Middle Ages and literally means “40 days,” which coincidentally, is about how long it’s going to take to slow the spread of COVID-19.

In early American history, quarantines were instituted by both the colonial governments and the fledgling government of the United States. Federal action today is justifiable under the Interstate Commerce Clause, the General Welfare Clause and the Public Health Service Act. Though modern Americans have not had to deal with a situation like the Coronavirus pandemic, quarantines and other restrictions were common in our history as our forefathers fought diseases such as smallpox and yellow fever.

In the past, however, many quarantine actions were undertaken by state and local governments. In the current health crisis, we see a similar pattern as governors and city leaders take the lead on restricting movements to slow the infection. In fact, states have much broader quarantine powers than the federal government. Vox has a good explanation of quarantine law and a rundown on various state laws here.

New York Mayor Bill De Blasio is one of these local leaders. To be clear, De Blasio is within his authority and is doing the right thing to ban public gatherings. As David French and Sarah Isgur discussed on the Advisory Opinions podcast two weeks ago, if the government issues a blanket ban on public gatherings in an emergency that includes but does not single out religious gatherings, it is not a violation of the First Amendment or religious freedom.

A popular meme going around the internet says that quarantines only apply to sick people. This is also incorrect. Quarantines apply to people who might be infected. Sickness is not required.

Where De Blasio crosses the line is with his threat to permanently close churches and synagogues. Once the emergency is over, the city would have no authority to keep houses of worship open. If the City of New York tried to enforce such an unconstitutional order, it would lose.

Until the outbreak is stopped, however, De Blasio does have the authority to shut down religious services and fine those who flout the order. I hope that he does use these powers because the situation in New York is beyond the pale. Christians should have more consideration for their fellow man than to risk the deaths of thousands simply because they insist on meeting in person.

That does not mean that the faithful can’t continue to worship in small or virtual groups. Online services have become the norm around the country over the past few weeks as Chris Queen wrote two weeks ago.

When the plague has subsided, many Americans will rejoice and thank God in churches around the country. There will be more Americans alive to do so if churches and businesses don’t act stupidly in the meantime.

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