Trump’s demand to open churches during COVID-19 pandemic is misguided and dangerous

President Trump’s effort to open religious institutions for worship services has no basis in law or medicine. Once more, it is his effort to play to his political base without any consideration of the public health implications.

On Friday, May 22, President Trump declared: “The governors need to do the right thing and allow these very important, essential places of faith to open right now for this weekend.”

“If they don’t do it, I will override the governors,” he added. “In America, we need more prayer, not less.”

To begin with, President Trump has no legal authority to override any closure orders by governors, whether for religious worship or anything else. Under the Constitution, state governments have the police power and the ability to take actions necessary to stop the spread of communicable diseases.

A president may act only if there is a constitutional or statutory authority. No constitutional provision gives the president the ability to override state closure orders; there is no emergency presidential powers clause in the Constitution.

Opinion

Nor does any federal law give the president this authority. The Public Health Service Act gives the Department of Health and Human Services the power to act to stop the spread of communicable diseases among the states and from entering the country. But ordering the opening of places of worship is obviously not intended to stop the spread of communicable disease. Moreover, the Public Health Service Act is explicit that it does not preempt an action taken by state and local governments.

President Trump can exhort state governors to change their closure policies, and some likely will follow his lead. But contrary to his repeated assertions, he has no power to change them.

Nor do the religious institutions have a viable claim that closure orders violate their constitutional rights so long as they are treated the same as private secular institutions. In 1990, in Employment Division v. Smith, the United States Supreme Court held that the application of a general law does not violate the free exercise of religion, no matter how much the government is burdening religious freedom.

That case involved Native Americans in Oregon who wanted a religious exception to using peyote in their rituals. The court, in an opinion by Justice Antonin Scalia, ruled against the Native Americans and held that there is no basis under the First Amendment for giving religious institutions exceptions from general laws.

Thus, a government order that prohibits assemblies of more than 10 people is constitutional even if it prevents gathering for religious worship. On Friday, May 22, the United States Court of Appeals for the Ninth Circuit, followed this reasoning and ruled against the South Bay United Pentecostal Church in Chula Vista, which had challenged Gov. Gavin Newsom’s stay-at-home orders. The court explained, “where state action does not infringe upon or restrict practices because of their religious motivation and does not in a selective manner impose burdens only on conduct motivated by religious belief, it does not violate the First Amendment.”

There is no doubt that the government can prevent people from assembling, whether for religious worship or protest or any other purpose, to stop the spread of COVID-19. There have been many instances where the spread of the disease can be traced to people gathering for religious worship.

For example, according to the United States Centers for Disease Control and Prevention, of 92 attendees at a rural Arkansas church during early March, 35 (38 percent) developed laboratory-confirmed COVID-19, and three persons died. An additional 26 cases linked to the church occurred in the community, including one death.

Butte County Public Health officials announced that a person who tested positive for the coronavirus attended a California religious service on Mother’s Day, exposing 180 other people to the novel coronavirus, according to local health officials. People who attended the service were notified about their exposure and received instructions from health officials to self-quarantine.

President Trump’s effort to reopen religious worship in the midst of a pandemic is the worst form of political pandering. He is doing this so he can rally evangelical voters who are a key part of his political base.

It is not simply that he is wrong about the law and about medicine, but that he is putting people’s lives in serious danger. Some people will listen to him and think it is safe and appropriate to gather in large groups for religious services. Some who do so will needlessly become seriously ill and die.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu