Government-imposed public health measures during the COVID pandemic have ignited a new round of church-state conflict, whose resolution—or lack thereof—will resonate long after the coronavirus crisis has passed. These legal clashes have for the most part been viewed—not incorrectly—as religious freedom matters.
But there’s another, equally fundamental, dimension to the question: property rights.
Houses of worship have been forbidden to use their own facilities while businesses deemed “essential” by governors and mayors are free to operate. In California, Archbishop Salvatore J. Cordileone of San Francisco is engaged in a running battle with city leaders over restrictions on gatherings, which effectively prevent normal worship services. He started a “Free the Mass” campaign to “end unfair restrictions on worship and to protect our churches and our religious belief.” His cathedral seats 2,500 people. “We’re a sacramental church, you can’t live stream Holy Communion,” Cordileone said.
The day before Thanksgiving, the U.S. Supreme Court issued a 5-4 decision in favor of the Catholic Diocese of Brooklyn, granting an emergency injunction against New York Gov. Andrew Cuomo for his strict attendance limits on religious services. Cuomo dismissed the ruling as “irrelevant.” But in joining the majority in the ruling, Justice Neil Gorsuch asked why Cuomo allowed people to gather in “bus stations and airports, in laundromats and banks, in hardware stores and liquor shops” but were barred from churches and synagogues even while following coronavirus health guidelines.
“Indeed,” Gorsuch wrote, “the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all ‘essential’ while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”
The Capitol Hill Baptist Church in Washington, represented by the legal team of First Liberty Institute and WillmerHale LLP, won a temporary injunction against a ban on outdoor services of more than 100 people put in place by Mayor Muriel Bowser. This was days after the Department of Justice filed a statement in support of the church. In the same city, Mayor Bowser recently modified caps on congregation size in response to the Archdiocese of Washington’s threat to sue.
The free exercise of religion has rightly been called the “first freedom,” a nod to its position of priority in the First Amendment. Toleration of diverse forms of worship was at the heart of the American project, even if its practice has been imperfect and contested.
But freedom of religion means little if it is merely a disembodied ideal. The Soviet constitution included a guarantee of religious freedom, after all, which didn’t prevent that totalitarian state from outlawing religious organizations, shuttering churches, and torturing and executing clergy. Religious freedom gains durability when it is linked inextricably to a dense web of other rights, which together form an impervious barrier against tyranny. In the United States, protection of religious liberty is heavily buttressed by the property rights of religious institutions.
The sanctity of property is a pillar of American legal culture. That pillar stands on the foundation of a long tradition in English law, a tradition that the British recognized as uniquely robust. “Every Free-born Subject of England,” wrote William Penn in 1687, “is heir by Birth-right unto that unparalleled privilege of Liberty and Property, beyond all the Nations in the world beside.” This devotion to property rights fired the colonial imagination and spurred revolutionary sentiment against “taxation without representation.”
The Constitution and Bill of Rights codified the connections among freedoms. Freedom of religious practice, assembly, and speech would work together to maintain an open society and deter oppression (First Amendment), while citizens would be secure in their persons and property against an avaricious government (Fifth Amendment).
With the theory in place, these relationships nonetheless took time to develop. Initially, Americans were wary about granting churches the institutional right to property, thinking that it might open the door to the domineering religious bodies that corrupted European politics and suppressed religious pluralism. Still, the concern not to favor religious bodies had to be balanced with the imperative not to discriminate against them: churches must be treated like any other voluntary association in American life.
So, in the early 1800s, religious groups began availing themselves of emerging corporation law to gain possession of property as corporate entities. It was a momentous advance—though not without its drawbacks, as corporation law initially reflected Americans’ persistent fear of the power of Old World churches (and thus required lay rather than clerical control over corporate assets). Gradually, however, state legislatures accommodated a variety of church structures. The Catholic Church especially benefited, as states began permitting hierarchical control of property through innovative legal arrangements. Church possessions now enjoyed the same protections granted to other forms of private property.
But this modus vivendi between religious institutions and secular state law is under threat. The COVID disputes have highlighted the problem. Lack of control over their property imperils churches’ basic functions, such as worship and spiritual ministry. Even if property rights can be justly compromised during emergencies, the definition of “emergency” is strained to the breaking point when its duration is months-long and its end indefinite. When churches lack authority over the use of their premises for such periods of time, they can no longer be said to enjoy the rights of property. Without this authority, their First Amendment right of religious exercise is also infringed.
More than a hundred years ago, Pope Leo XIII observed something similar happening in Europe, where anticlerical governments regularly confiscated the property of religious orders. In his great social encyclical Rerum Novarum (1891), he wrote that authorities had placed these religious communities “under control of the civil law, taken away their rights as corporate bodies, and despoiled them of their property.” Leo asserted that “in such property the Church had her rights, each member of the body had his or her rights, and there were also the rights … of those for whose benefit and assistance they had their being.”
Therefore, he continued, “We cannot refrain from complaining of such spoliation as unjust and fraught with evil results; and with all the more reason do We complain because, at the very time when the law proclaims that association is free to all, We see that Catholic societies, however peaceful and useful, are hampered in every way, whereas the utmost liberty is conceded to individuals whose purposes are at once hurtful to religion and dangerous to the commonwealth.”
Leo’s words remain highly relevant, as it’s hard not to read abortion clinics, strip clubs and violent protests into the pope’s final sentence. As COVID-related restrictions that burden churches remain in place, the web of protection that shields American liberties slowly disintegrates. And as the thread of property rights is pulled, the entwined thread of religious freedom is deprived of one of its surest supports.
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