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In a stunning letter dated May 20, six Minnesota Catholic bishops announced that in defiance of Governor Tim Walz’s Executive Order prohibiting “gatherings of more than 10 people” they are allowing masses to resume on May 26. Not to be outdone, Lutherans also issued a letter announcing they have “chosen to move forward” with their services “in the absence of a timeline from Gov. Walz.” Religious objection to such prohibitions has been widely documented. However, the decision to engage in civil disobedience as opposed to litigation is a unique turn of events that can probably be best explained by the fact that the law is not in the churches’ favor.
To be sure, the Lutherans are claiming the constitutional guarantee of the free exercise of religion supports their decision and that Walz’s order “allowing malls and other ‘non-critical’ businesses to open, fails to uphold that guarantee.” Moreover, as the Minnesota Star Tribune has reported, a group called the Becket Fund for Religious Liberty has backed up this claim that the First Amendment is on the side of the Minnesota churches. The problem is, not only does this argument grossly mischaracterize Governor Walz’s EO, this argument has already failed in other jurisdictions. This could help explain why the churches have chosen the path of disobedience rather than litigation.
To begin with the order itself, it is a gross mischaracterization to say the order exempts businesses but not churches. The order prohibits a variety of commercial activities that bring together more than 10 people, such as “sporting or athletic events, performances, concerts, conventions, fundraisers, parades, fairs, and festivals.” Moreover, the order is clear as to its reasoning why these kinds of gatherings (including church services) increase the risk for transmission as they tend to operate for extended periods. Most importantly, the kinds of gatherings that would be analogous to church services are inherently different, as the order points out, from “transitory settings, such as retail establishments, where individual interactions and contact are more limited in duration.” In other words, the comparison of church services to retail is apples to oranges and in every respect the order applies evenly to any gathering that could be considered equivalent to a church service.
Additionally working against the churches in Minnesota, from a legal perspective, is the fact that similar arguments have already been defeated in federal court. In fact, as that court noted, “exempting religious exercise from requirements of the law” could “amount to a carveout that is not available to other non-religious businesses, in violation of the Establishment Clause.” Put simply, if Governor Walz cannot prohibit church services he would also have to allow concerts, conventions, and festivals and any hope that the spread of the virus could be contained would evaporate.
Of course, given the terrible disregard many judges have shown toward the Establishment Clause and a balanced approach to religious liberty, the Minnesota churches could win. In fact, we are already seeing judges approach these cases more like religious preachers than impartial adjudicators. Add in the fact that multiple federal judges have relegated nonbelievers to second-class citizens who can be barred from addressing their own state legislatures, or categorically banned from performing private wedding ceremonies, and you can make the argument that it is nonbelievers who should be outraged.
The fact is, the burdens (if you even want to call them that) that are being imposed on churches in Minnesota don’t compare in the slightest to what churches, such as the Catholic church, want to impose on others. For example, right now at this very moment, the Catholic church is fighting to deny foster children, in a government program mind you, the right to full access of potential adoptive parents because of sexual orientation. Given the ridiculously unbalanced state of religious liberty that we are all operating in, where despite a clear legal mandate originally intended to prohibit public funding of religion, religious organizations nevertheless receive absurd amounts of taxpayer dollars. I hope everyone can forgive me for having no sympathy for the civil disobedience being planned in Minnesota.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.