At stake were California’s COVID regulations prohibiting any indoor religious assemblies in Tier I-designated pandemic areas. California defended its sometimes sui generis treatment of places of worship by asserting four characteristics that made such venues unique: gatherings of people belonging to unrelated households in close proximity for extended time periods that involved singing.
What is a Religious Gathering?
The Court majority generally gave short shrift to three of the four claimed characteristics making religious gatherings unique, but split hairs over singing. Some justices were ready to throw out the singing restriction, others thought the churches had not proven their claim for relief on that subject, and one was willing to give the state another month to try and document its claims about the pestilent properties of sacral song.
California buttressed its violation of indoor free exercise of religion in part by associating religious assembly with singing. But Justice Gorsuch noted the difference between songs and songs. California lumps all hymnody in one contagion basket. But are a lone cantor in the sanctuary and the Mormon Tabernacle Choir in procession – both generators of “singing” – really the same thing? I’d add a third variant: the organist up in a choir loft, back to the altar and congregation, singing into a microphone.
The Court once again gets caught in playing the “what’s a church like” game, a rabbit hole I already cautioned against going down. Gorsuch notes that a real congregation of worshippers in a Tier I area would be banned from singing hymns but an assembly of singers who are not a real congregation but play one on TV in a Tier I Hollywood could belt out a robust “Hallelujah!”
As I previously cautioned, I would eschew the entire comparisons game by insisting a church is not and does not have to be “like” anything else because nothing comparable—movie production, indoor movies, or casino gambling—enjoys explicitly protected Constitutional exercise.
California associates religious worship with singing. Well, what about Quaker meetings? Friends typically sit in silence and, presumably, socially distanced until one feels prompted by the “Spirit” to speak. In theory, the Spirit wafting where He will might not even result in a light breeze and no one speaks. How, then, would such worship be especially dangerous? Is “sound of silence” Quakerism the state’s preferred modality of worship?
On the other hand, if the Spirit blowing through a Quaker meetinghouse inspires a Friend to speak His Word in song, is the state suddenly specially empowered to stifle the Spirit for inspirations unauthorized by Gavin Newsom?
Catholics can but don’t have to sing as part of the liturgy: we might even recover the idea of “low Mass.” So the Catholic liturgy can be adapted to mitigate the state’s concerns about the alleged epidemiological hazards of hymnody in worship that is not al fresco (one of California’s suggested ways of praying). Given that adaptability, how has California shown its broad-sweeping restriction still remains First Amendment-compatible?
And what about Eastern Christians? California Catholics can drop the singing (and, in light of some of the bishops’ observations in “Catholic Hymnody,” probably should). But heirs of the Byzantine liturgy—in communion with Rome or not—would have a much harder time stripping away chant. Are such liturgical styles open to greater state oversight? In that vein, what about Hispanic Catholics, for whom music tends to be a greater feature at Mass? African American Protestants? Does their musical worship open them up to greater state discrimination?
Defenders of California’s overreach pretend to avoid those problems by lumping everybody together in one no-brand basket called “religion” and then deciding that a denominationally “neutral” limit satisfies the “balancing” required between the church’s free exercise and the state’s public health rights. Of course, there are no such generic “worshippers” so, while the “one-size-fits-all” simply gores different denominations differently, they all get gored. In today’s doublethink world, it might even be called a broad sharing of “equity.”
Eschew One Size Fits All
The way out of these dilemmas is neither “neutral” one-size-gores-all rules nor pretending churches are “like” X, Y, or Z but in recognizing the clear demands of the first right in the First Amendment, i.e., that religious freedom is a Constitutionally protected and privileged right whose infringement is always suspect and always in need of the least restrictive and tailored response. Anything else leads either to broad brush discrimination that impairs everybody’s free exercise of religion because of the State’s image of what worship entails, or else practical recommendations by Caesar about how to worship God. I regularly hear that in the default position of advocates of regulation: “well, real Christians can worship God anywhere and if they really loved God and neighbor, they’d surrender communal assembly.”
Moving in the direction I suggest would stimulate movement from beyond simple proceduralism to a more substance-based assessment of rights. I suspect that everybody on all sides knows this but does not really want to admit it and so attempt to keep breathing life into proceduralism. The problem is that it then invites the state to decide on authorized kinds of breathing in church, synagogue, or mosque.
If by singing we pray twice, California wants you to be satisfied with not praying at all and some justices only once. That’s why, in light of the partial victory for religious freedom in this case (“partial” given the hair-splitting over hymnody that resembles the makings of the worst of the hair-splitting “jurisprudence” over aid to parochial schools) we should proclaim a loud “Amen!” Just don’t chant it.
The views above are exclusively those of the author.