By: Marc Zarlengo, Esq.
Editor’s Note: The following article was published on the website of The Catholic Esquire. It has been rep-published with permission from the author Marc Zarlengo, Esq.
Regardless of whether or not you believe the Coronavirus/COVID panic currently sweeping across the fruited plain of the United States is an overblown media-hyped creation or is a real, deadly concern we must respond to on a world-wide scale, the impact of the stay-at-home orders issued by state and local authorities in response has sparked some very serious and grave constitutional questions—especially concerning the First Amendment’s supposed guarantee of the free exercise of religion.
More specifically, the question often raised by many Americans staring at an unprecedented level of restrictions on a vast array of liberties in the name of “flattening the curve” is how can the government prohibit religious gatherings of people, such as attending Mass on Sundays, when the Constitution prohibits infringement on the free exercise of religion? Isn’t a prohibition on attending church an obvious infringement on the exercise of religion?
The simple answer is of course it is an infringement on the exercise of religion, that’s not even disputable. The real question that Catholics and others of faith must ask from a constitutional perspective is why isn’t the government required to make an exception in these state and locally ordered stay-at-home orders for attending religious worship services on Sundays?
The answer to this question is because the United States Supreme Court (SCOTUS) said the government is not required to make exceptions (although they can) in laws to accommodate religious practices so long as the governmental restrictions are generally applicable to everyone, and does not single out religion itself.
For practicing Catholics, this issue not only impacts our ability to participate in in the Sacrifice of the Holy Mass and to receive sacraments, but very much could impact the final destination of eternal souls! So, we need to understand how we got to this point by looking at the key 1990 SCOTUS case of Employment Division v. Smith. By understanding this case, we can understand why “freedom of religion,” as supposedly enshrined in the First Amendment of the Bill of Rights, is nothing more than an open invitation for governmental control of religion and the Catholic faith to such an extent that it constitutes a rejection of the social kingship of Christ. And then we can ask, what should our response be?
Employment Division v. Smith (1990)
The Smith case involved two Oregon men, Alfred Smith and Galen Black, who were fired from their jobs at a drug rehab center because they were caught ingesting peyote (a spineless cactus plant with psychoactive properties) for religious purposes at a ceremony sponsored by their Native American church. Use of peyote was considered a criminal act under Oregon law. Smith and Black applied for unemployment benefits with the state and were denied because the Employment Division found they were fired for work-related “misconduct”, which disqualified them under Oregon law for unemployment benefits.
Smith and Black appealed the denial of benefits on the grounds that the State of Oregon infringed on their First Amendment right to freely exercise their religion because peyote was an important ritual and authentic religious practice. The case ultimately ended up before the Supreme Court. Its opinion, authored by Justice Antonin Scalia (surprisingly to some), concluded that Oregon’s prohibition on the use of peyote did not infringe on Smith and Black’s rights under the Free Exercise clause in the First Amendment.
What’s important to understand about the Smith decision is not only that the State of Oregon was found to have the constitutional authority to restrict the religious practices of members of a Native American church, but the reasoning behind the decision. Now that Catholics (and other Christians) are facing extensive restrictions on religious gatherings under stay-in-home orders, the analysis contained in the Smith opinion exposes the reality that the free exercise of religion results in nothing more than a grant of power to the secular government over religion!
Interestingly, none of the Court members rejected the idea that government could restrict certain religious practices. The legal question was whether the government had to first show a “compelling interest” before doing so, or whether the government simply had blanket authority to do so. The Court ultimately agreed with the latter position and determined that
In other words, so long as a law applies to everyone generally and does not single out religion for a restriction, then the fact it may affect the ability of a citizen to practice his religion does not relieve him from complying with the law.
What the Smith decision on a practical level means for Christians of all stripes is that when your religious practice conflicts with a generally applicable civil law, then the civil law trumps your religious belief and you have to obey the government command. The government doesn’t even need to provide a compelling civic or public safety reason to infringe on your religious belief—it just can. For Smith and Black, Oregon didn’t have to show peyote ingestion was a dangerous practice, all it had to show was that it criminalized peyote use for everyone.
How did Justice Scalia and the rest of the Court’s majority reach this conclusion? The reasoning was quite simple and logical given the principles upon which the United States was founded. If it was any other way, according to Scalia, the government and its courts would have to engage in the next to impossible and inappropriate task of reviewing and analyzing the nature and importance of a claimed religious practice in relation to whatever religion was at issue. Scalia went on to state,
There is the reasoning—because we in the United States believe in a diversity of religions and are opposed to the idea of government interference or review of individual religious practices, of which there could be an infinite variety, we cannot expect the courts to assume otherwise valid civil laws to be invalid because anyone can make up any religion and claim it as “their” religious practice. That indeed would seem to make governing for the civil authorities impractical if not impossible.
At the risk of putting words into Justice Scalia’s mouth, he also seems to be saying that getting into the business of determining legitimate versus non-legitimate religious practices violates a fundamental principle of freedom of religion or interference from government in a nation that prides itself on diversity. The consequence of not having an established religion, such as Roman Catholicism, is that ALL religions have to be presumed valid, regardless of how evil or destructive they are. That is why as a practical matter, all claimed religions are bound to follow the civil, secular laws if law and order is going to be maintained. The trade-off is that while all religions are allowed to exist and operate to some extent, including Catholicism, they must subordinate themselves to the civil authorities on some areas of conflict in order for everyone to live in peace and harmony. That’s the theory anyway, and it was an idea most of the Founding Fathers agreed with.
A Catholic Response to the Smith Case
The problem from a traditional (and authentic) Catholic point of view with all of this, is that the underlying premises accepted by the Court are fundamentally flawed and necessarily result in the rejection of both the divine and natural law as expressed in Christ’s social kingship.
First of all, as Catholics we believe there is only one, catholic and apostolic Church founded by Jesus Christ Himself, that can be historically traced back to Christ, and that there is no salvation outside of the Church. Therefore, we cannot support a system that seems to promote or support the idea that God wills the diversity of religions, nor that a valid civil authority can be structured on any teachings contrary to the will of God.
Of course, other religions may say the same thing. But from a Catholic perspective, it doesn’t matter what the other religions believe in this regard. WE have a duty to Christ and to follow His commands and teachings while attempting to convert those who do not believe.
Given what Americans have been taught about fundamental “American principles” that value a diversity of religions, pluralism, and separation of church and state, the Smith decision would seem inevitable and reasonable. However, we know from both Holy Scripture and Holy Tradition that God does not favor a diversity of religions or the separation of His Church from the civil state in the way protestant and enlightenment political theorists conceived of it.
Secondly, Catholics cannot in good conscience agree to put the law of the state above the God’s laws when they are in direct conflict.
While I am not going to attempt a full and complete treatment of the social teaching of the Church with respect to Church-state relations, it is sufficient to state here that there has always been a recognized division of authority between the civil (temporal) state and the Church, and yet both the state and Church are subordinate to Christ as King.
We see this clearly in Christ’s response to the pharisees when He tells them to “repay to Caesar what belongs to Caesar and to God what belongs to God.” (Matthew 22: 17-22). Clearly, there is a sphere of power belonging to the Church and another one belonging to the state. Saint Paul explains that civil authority, i.e. the power of the state, indeed does and should command obedience from its citizens. He explains this is because the power or authority the civil ruler holds is given to him by God: “Let every person be subordinate to the higher authorities, for there is no authority except from God, and those that exist have been established by God.” (Romans 13:1).
This is important to remember when we consider Christ’s social kingship: ALL authority, including both civil and ecclesial, ULTIMATELY comes from God. Christ reminds His followers that “All power in heaven and on earth has been given to me.” (Matthew 28:18). Christ is the “the King of Kings, and Lord of Lords.” (Apocalypse 19:16).
Because all authority ultimately comes from Jesus Christ, He is the ultimate “Law Giver, whom obedience is due” says Pope Pius XI. And while His kingdom is a spiritual one, Pius reminds us that
We learn from St. Thomas Aquinas that Christ’s authority takes the form of Divine Law, natural law, and ecclesial law. The civil (or positive law) is man created law but because all authority comes from God, justice will not allow for any conflict between the civil law and God’s laws. At the end of the day, should there appear to be a conflict between civil commands and God’s laws, the citizen is justified in defending “their own rights and those of their fellow citizens against the abuse of this [civil] authority within the limits of the natural law and the Law of the Gospel.”( CCC para. 2241, citing to GS 74, § 5.)
Contrast these principles to those set forth in the Smith case described above. They are inherently incompatible. The Smith opinion, without making any distinction or exception for the teaching of Christ or the Church, held that a civil (man-made law) of general applicability must be obeyed even if such law restricts the ability of the citizen, i.e. Catholic Christian, to engage in religious worship. According the Supreme Court, the civil law trumps religious law—for the Church, God’s laws trump civil laws when in conflict.
Application to Stay-At-Home Orders
Putting all this together, and circling back to the original question of the validity of stay-at-home orders, we can conclude that although it is the opinion of the Supreme Court and many “constitutionalists”, including politically conservative ones, that there is no legal problem with ordering Catholics to stay away from Mass and receiving sacraments, faithful Catholics should not comply with the civil authorities in the event the civil authority issues an order that contradicts God’s laws.
While the Church itself certainly has some authority over how the sacraments are administered, many believe the ability to access the sacraments and attending Mass, the highest form of worship, is in fact a matter of divine and natural law which cannot be abrogated by any civil authority. Some canon lawyers have opined that even Bishops cannot prohibit attending Mass or reception of sacraments on an open-ended, general basis.
If someone challenged the stay-at-home orders in court based on a violation of the Free Exercise clause, he would likely lose because the government will claim the order are not intended to single out religious worship but apply to the public generally. This would follow from the Smith decision.
But even if the stay-at-home orders are laws of general applicability, which I would argue they are not because of the numerous exceptions contained in them including for abortion clinics and liquor stores, as faithful Catholics we are bound to give due honor and worship to God as a matter of justice. That is, we owe God proper worship in the matter He provided to us through centuries of tradition handed down. We also must take care that our souls and those of our family members receive the graces they need for eternal salvation. These are matters of divine and natural law. The secular government does not get to decide who and when we receive graces or worship the Lord, regardless of whether they think Mass attendance will pose a public danger. That is a matter reserved to Christ and His Church authorities to decide after careful consideration and prudential judgments.
Sadly, this situation will arise more and more as American jurisdictions and their leaders become more secular, atheist and divorced from Christian influence. Many of the secular authorities desire as much as any religious sect to impose their will and beliefs on others through government because their secularism is their religion. We are facing this in a way never seen before now as stay-at-home orders are preventing Catholics from attending Mass and receiving sacramental graces.
[Yes, legalists, I know God is not bound by the sacraments, but WE are bound by the sacraments, and we should never presume upon God or take it upon ourselves to dispense with the need for sacraments because some atheist governor tells us to.]
As Catholics, and especially the shepherds of the Church, we should know our duty is first and foremost to Christ, regardless of the opinion of the Supreme Court, mayors, governors or health boards. In light of Supreme Court precedent and these civil orders resulting in the systematic destruction of all types of civil liberties, including religious ones, this world-wide crisis seems to provide an opportunity for all of the faithful to learn about Christ’s Kingship and reconsider with a skeptical eye some of our “founding” American civic principles that have set the stage for the current crisis.
Editor’s Note: The following article was published on the website of The Catholic Esquire. It has been rep-published with permission from the author Marc Zarlengo, Esq.
Regardless of whether or not you believe the Coronavirus/COVID panic currently sweeping across the fruited plain of the United States is an overblown media-hyped creation or is a real, deadly concern we must respond to on a world-wide scale, the impact of the stay-at-home orders issued by state and local authorities in response has sparked some very serious and grave constitutional questions—especially concerning the First Amendment’s supposed guarantee of the free exercise of religion.
More specifically, the question often raised by many Americans staring at an unprecedented level of restrictions on a vast array of liberties in the name of “flattening the curve” is how can the government prohibit religious gatherings of people, such as attending Mass on Sundays, when the Constitution prohibits infringement on the free exercise of religion? Isn’t a prohibition on attending church an obvious infringement on the exercise of religion?
The simple answer is of course it is an infringement on the exercise of religion, that’s not even disputable. The real question that Catholics and others of faith must ask from a constitutional perspective is why isn’t the government required to make an exception in these state and locally ordered stay-at-home orders for attending religious worship services on Sundays?
The answer to this question is because the United States Supreme Court (SCOTUS) said the government is not required to make exceptions (although they can) in laws to accommodate religious practices so long as the governmental restrictions are generally applicable to everyone, and does not single out religion itself.
For practicing Catholics, this issue not only impacts our ability to participate in in the Sacrifice of the Holy Mass and to receive sacraments, but very much could impact the final destination of eternal souls! So, we need to understand how we got to this point by looking at the key 1990 SCOTUS case of Employment Division v. Smith. By understanding this case, we can understand why “freedom of religion,” as supposedly enshrined in the First Amendment of the Bill of Rights, is nothing more than an open invitation for governmental control of religion and the Catholic faith to such an extent that it constitutes a rejection of the social kingship of Christ. And then we can ask, what should our response be?
Employment Division v. Smith (1990)
The Smith case involved two Oregon men, Alfred Smith and Galen Black, who were fired from their jobs at a drug rehab center because they were caught ingesting peyote (a spineless cactus plant with psychoactive properties) for religious purposes at a ceremony sponsored by their Native American church. Use of peyote was considered a criminal act under Oregon law. Smith and Black applied for unemployment benefits with the state and were denied because the Employment Division found they were fired for work-related “misconduct”, which disqualified them under Oregon law for unemployment benefits.
Smith and Black appealed the denial of benefits on the grounds that the State of Oregon infringed on their First Amendment right to freely exercise their religion because peyote was an important ritual and authentic religious practice. The case ultimately ended up before the Supreme Court. Its opinion, authored by Justice Antonin Scalia (surprisingly to some), concluded that Oregon’s prohibition on the use of peyote did not infringe on Smith and Black’s rights under the Free Exercise clause in the First Amendment.
What’s important to understand about the Smith decision is not only that the State of Oregon was found to have the constitutional authority to restrict the religious practices of members of a Native American church, but the reasoning behind the decision. Now that Catholics (and other Christians) are facing extensive restrictions on religious gatherings under stay-in-home orders, the analysis contained in the Smith opinion exposes the reality that the free exercise of religion results in nothing more than a grant of power to the secular government over religion!
Interestingly, none of the Court members rejected the idea that government could restrict certain religious practices. The legal question was whether the government had to first show a “compelling interest” before doing so, or whether the government simply had blanket authority to do so. The Court ultimately agreed with the latter position and determined that
- “the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
In other words, so long as a law applies to everyone generally and does not single out religion for a restriction, then the fact it may affect the ability of a citizen to practice his religion does not relieve him from complying with the law.
What the Smith decision on a practical level means for Christians of all stripes is that when your religious practice conflicts with a generally applicable civil law, then the civil law trumps your religious belief and you have to obey the government command. The government doesn’t even need to provide a compelling civic or public safety reason to infringe on your religious belief—it just can. For Smith and Black, Oregon didn’t have to show peyote ingestion was a dangerous practice, all it had to show was that it criminalized peyote use for everyone.
How did Justice Scalia and the rest of the Court’s majority reach this conclusion? The reasoning was quite simple and logical given the principles upon which the United States was founded. If it was any other way, according to Scalia, the government and its courts would have to engage in the next to impossible and inappropriate task of reviewing and analyzing the nature and importance of a claimed religious practice in relation to whatever religion was at issue. Scalia went on to state,
- “Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference,’ [citations omitted] and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.”
There is the reasoning—because we in the United States believe in a diversity of religions and are opposed to the idea of government interference or review of individual religious practices, of which there could be an infinite variety, we cannot expect the courts to assume otherwise valid civil laws to be invalid because anyone can make up any religion and claim it as “their” religious practice. That indeed would seem to make governing for the civil authorities impractical if not impossible.
At the risk of putting words into Justice Scalia’s mouth, he also seems to be saying that getting into the business of determining legitimate versus non-legitimate religious practices violates a fundamental principle of freedom of religion or interference from government in a nation that prides itself on diversity. The consequence of not having an established religion, such as Roman Catholicism, is that ALL religions have to be presumed valid, regardless of how evil or destructive they are. That is why as a practical matter, all claimed religions are bound to follow the civil, secular laws if law and order is going to be maintained. The trade-off is that while all religions are allowed to exist and operate to some extent, including Catholicism, they must subordinate themselves to the civil authorities on some areas of conflict in order for everyone to live in peace and harmony. That’s the theory anyway, and it was an idea most of the Founding Fathers agreed with.
A Catholic Response to the Smith Case
The problem from a traditional (and authentic) Catholic point of view with all of this, is that the underlying premises accepted by the Court are fundamentally flawed and necessarily result in the rejection of both the divine and natural law as expressed in Christ’s social kingship.
First of all, as Catholics we believe there is only one, catholic and apostolic Church founded by Jesus Christ Himself, that can be historically traced back to Christ, and that there is no salvation outside of the Church. Therefore, we cannot support a system that seems to promote or support the idea that God wills the diversity of religions, nor that a valid civil authority can be structured on any teachings contrary to the will of God.
Of course, other religions may say the same thing. But from a Catholic perspective, it doesn’t matter what the other religions believe in this regard. WE have a duty to Christ and to follow His commands and teachings while attempting to convert those who do not believe.
Given what Americans have been taught about fundamental “American principles” that value a diversity of religions, pluralism, and separation of church and state, the Smith decision would seem inevitable and reasonable. However, we know from both Holy Scripture and Holy Tradition that God does not favor a diversity of religions or the separation of His Church from the civil state in the way protestant and enlightenment political theorists conceived of it.
Secondly, Catholics cannot in good conscience agree to put the law of the state above the God’s laws when they are in direct conflict.
While I am not going to attempt a full and complete treatment of the social teaching of the Church with respect to Church-state relations, it is sufficient to state here that there has always been a recognized division of authority between the civil (temporal) state and the Church, and yet both the state and Church are subordinate to Christ as King.
We see this clearly in Christ’s response to the pharisees when He tells them to “repay to Caesar what belongs to Caesar and to God what belongs to God.” (Matthew 22: 17-22). Clearly, there is a sphere of power belonging to the Church and another one belonging to the state. Saint Paul explains that civil authority, i.e. the power of the state, indeed does and should command obedience from its citizens. He explains this is because the power or authority the civil ruler holds is given to him by God: “Let every person be subordinate to the higher authorities, for there is no authority except from God, and those that exist have been established by God.” (Romans 13:1).
This is important to remember when we consider Christ’s social kingship: ALL authority, including both civil and ecclesial, ULTIMATELY comes from God. Christ reminds His followers that “All power in heaven and on earth has been given to me.” (Matthew 28:18). Christ is the “the King of Kings, and Lord of Lords.” (Apocalypse 19:16).
Because all authority ultimately comes from Jesus Christ, He is the ultimate “Law Giver, whom obedience is due” says Pope Pius XI. And while His kingdom is a spiritual one, Pius reminds us that
- “It would be a grave error, on the other hand, to say that Christ has no authority whatever in civil affairs, since, by virtue of the absolute empire over all creatures committed to him by the Father, all things are in his power.” (Quas Primas, 17).
We learn from St. Thomas Aquinas that Christ’s authority takes the form of Divine Law, natural law, and ecclesial law. The civil (or positive law) is man created law but because all authority comes from God, justice will not allow for any conflict between the civil law and God’s laws. At the end of the day, should there appear to be a conflict between civil commands and God’s laws, the citizen is justified in defending “their own rights and those of their fellow citizens against the abuse of this [civil] authority within the limits of the natural law and the Law of the Gospel.”( CCC para. 2241, citing to GS 74, § 5.)
Contrast these principles to those set forth in the Smith case described above. They are inherently incompatible. The Smith opinion, without making any distinction or exception for the teaching of Christ or the Church, held that a civil (man-made law) of general applicability must be obeyed even if such law restricts the ability of the citizen, i.e. Catholic Christian, to engage in religious worship. According the Supreme Court, the civil law trumps religious law—for the Church, God’s laws trump civil laws when in conflict.
Application to Stay-At-Home Orders
Putting all this together, and circling back to the original question of the validity of stay-at-home orders, we can conclude that although it is the opinion of the Supreme Court and many “constitutionalists”, including politically conservative ones, that there is no legal problem with ordering Catholics to stay away from Mass and receiving sacraments, faithful Catholics should not comply with the civil authorities in the event the civil authority issues an order that contradicts God’s laws.
While the Church itself certainly has some authority over how the sacraments are administered, many believe the ability to access the sacraments and attending Mass, the highest form of worship, is in fact a matter of divine and natural law which cannot be abrogated by any civil authority. Some canon lawyers have opined that even Bishops cannot prohibit attending Mass or reception of sacraments on an open-ended, general basis.
If someone challenged the stay-at-home orders in court based on a violation of the Free Exercise clause, he would likely lose because the government will claim the order are not intended to single out religious worship but apply to the public generally. This would follow from the Smith decision.
But even if the stay-at-home orders are laws of general applicability, which I would argue they are not because of the numerous exceptions contained in them including for abortion clinics and liquor stores, as faithful Catholics we are bound to give due honor and worship to God as a matter of justice. That is, we owe God proper worship in the matter He provided to us through centuries of tradition handed down. We also must take care that our souls and those of our family members receive the graces they need for eternal salvation. These are matters of divine and natural law. The secular government does not get to decide who and when we receive graces or worship the Lord, regardless of whether they think Mass attendance will pose a public danger. That is a matter reserved to Christ and His Church authorities to decide after careful consideration and prudential judgments.
Sadly, this situation will arise more and more as American jurisdictions and their leaders become more secular, atheist and divorced from Christian influence. Many of the secular authorities desire as much as any religious sect to impose their will and beliefs on others through government because their secularism is their religion. We are facing this in a way never seen before now as stay-at-home orders are preventing Catholics from attending Mass and receiving sacramental graces.
[Yes, legalists, I know God is not bound by the sacraments, but WE are bound by the sacraments, and we should never presume upon God or take it upon ourselves to dispense with the need for sacraments because some atheist governor tells us to.]
As Catholics, and especially the shepherds of the Church, we should know our duty is first and foremost to Christ, regardless of the opinion of the Supreme Court, mayors, governors or health boards. In light of Supreme Court precedent and these civil orders resulting in the systematic destruction of all types of civil liberties, including religious ones, this world-wide crisis seems to provide an opportunity for all of the faithful to learn about Christ’s Kingship and reconsider with a skeptical eye some of our “founding” American civic principles that have set the stage for the current crisis.
Marc Zarlengo is a licensed attorney with a Juris Doctor and BA in economics. He teaches constitutional law, criminal justice, and business law for community colleges. He is a member of the New Saint Thomas Institute, and enjoys studying Church history, Christian apologetics, theology and philosophy.
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