Christopher Ogolla is an assistant professor of law at Barry University Dwayne O. Andreas School of Law in Orlando, Florida. His scholarship focuses on the intersection of public health, policy, bioethics, and law. Ogolla has published in several reputable legal publications including Indiana Law Review, Dickinson Law Review, and Health Matrix: Journal of Law-Medicine.
Religion plays both a positive and a negative role in public health. On the positive side, religion helps with coping with stress, uplifts peoples’ spirits in times of hardships, and provides what believers have often referred to as faith-based healing. In many parts of the world, religious organizations and groups provide key public health functions including, but not limited to, provision of good nutrition, HIV treatment and counseling services, clean drinking water, childhood immunizations, and prenatal and neonatal health screening services. Some of the best hospitals in the nation are owned and operated by religious organizations. In times of disasters, churches have often been paragons of charity. For example, during the height of the COVID-19 pandemic in April 2020, Samaritan’s Purse, an international Christian relief organization, opened an emergency hospital in New York City and in Italy.
On the other hand, religion can have negative influences on public health. For example, many religious groups' opposition to the use of condoms in the developing world has been associated with the increased spread of HIV and AIDS. Other denominations like Christian Scientists and Jehovah's Witnesses restrict members' use of medical services. This means that sometimes, religion and public health are on a collision course. This conflict has recently been laid bare by the COVID-19 pandemic and accompanying stay-at-home orders issued by the several governors. As often happens in such conflicts, each side seeks a remedy in a court of law. Religion and government then get entangled.
The COVID-19 stay-at-home orders have been challenged in courts on several constitutional grounds, including violation of due process, equal protection, and for religious groups, infringement of their First Amendment rights. The First Amendment provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” According to Justice Hugo Black, these prohibitions are “absolutes.”
The first issue here is, if prohibitions in the Bill of Rights are absolutes, as per Justice Black, then do the stay-at-home orders violate religious rights? The answer is mixed. For example, whereas U.S. district judges in Arizona and Illinois ruled the respective governors’ stay-at-home orders constitutional, the Wisconsin Supreme Court found the opposite, overturning the Wisconsin governor’s stay-at-home orders.
The second question then arises: Does religion matter during a pandemic? Put differently, is religion an essential service during a pandemic? According to the Pan American Health Organization, essential services are the services and functions that are absolutely necessary, even during a pandemic. By this definition, is religion absolutely necessary during a pandemic? For believers, the answer is a resounding yes. Recently, President Trump ordered states to reopen houses of worship amid the pandemic. The president declared places of worship essential services.
What is an essential service is, of course, a matter of interpretation. Grocery stores, supermarkets, gas stations, road construction, hospitals, public transport, utilities, pharmacies, and banks are some of the obvious essential services. But curiously, essential services include pro-wrestling in Florida; topless delivery service in Portland, Oregon; and liquor stores in New York State. Do we as a society want to equate religious services with the food and restaurant industry, pharmacies, or liquor stores as essential services? Reasonable minds may differ about this.
There are no easy answers as to how religious communities and local, state, and national governments can find common ground on religious freedom during a pandemic. One zone of potential agreement is that both the religious organizations and governments care about the populations’ health. To that end, governments can encourage houses of worship to ask their members to voluntarily quarantine, rather than shut them down during a pandemic. Evidence exists to show that during public health emergencies, voluntary quarantine works. For example, during the 2003 SARS pandemic in Toronto, Canada, approximately 15,000 persons with an epidemiologic exposure to SARS were instructed to remain in voluntary quarantine. In a representative sample study of the effects of the quarantine, researchers found that 85% of quarantined persons wore a mask in the presence of household members; 58% remained inside their residence for the duration of their quarantine. 33% of those quarantined did not monitor their temperatures as recommended: 26% self-monitored their temperatures less frequently than recommended and 7% did not measure their temperatures at all.
Second, stay at home orders should be as specific and use the least restrictive means possible. That means avoiding overbroad orders. For example, religious leaders can be allowed to visit people in their homes to conduct religious services. After all, many states allowed gatherings of 10 or less people during the pandemic.
Third, drive-thru religious services should be allowed where possible. That is, if people can drive to their houses of worship and listen to religious services while in their cars, this would greatly minimize the risk of transmission.
Finally, religious leaders can adapt too. For example, religious leaders have been performing services online, hoping that the faithful are watching. As a practicing Catholic though, watching mass online does not cut it. I miss the human touch, the blessed sacrament, the sign of peace, the choir, the liturgical sitting, standing, and kneeling. These cannot be digitized. Still, just because one cannot attend a service physically, does not mean one cannot pray. But one needs to be alive to pray.