In excluding houses of worship, DeWine sidesteps constitutionality questions


By Nicki Gorny - The Blade, Toledo, Ohio (TNS)



Ohio Gov. Mike DeWine didn’t hold back when asked about a church in the state perceived to be bucking his stay-at-home order earlier this month.

“Any pastor who brings people together in close proximity to each other, a large group of people, is making a huge mistake,” he told reporters during his daily press briefing on April 1. “It is not a Christian thing to do.”

But the governor, who’s been praised for his aggressive approach to curbing the spread of the novel coronavirus, stopped shy of ordering the doors locked on any houses of worship. In a notable contrast to many parts of the country where in-person worship has been swept up in wide-sweeping lockdown orders, his orders have so far exempt religious entities.

It’s one way to largely sidestep questions of constitutionality that are cropping up in other states — and cropping up reasonably so, according to Professor Lee Strang of the University of Toledo College of Law. While there are circumstances in which governments can restrict a person’s rights, in a legal tradition that holds the right to religious exercise in high regard, he said it wouldn’t be wise to include a house of worship in a lock-down order lightly.

“In Ohio, we’ve been spared a lot of this controversy, because most religious communities have voluntarily effectively mimicked what Gov. DeWine had imposed for nonreligious activities,” Strang said. “But other states haven’t done that.”

Any civics student knows that the freedom of religion is enshrined in the First Amendment to the U.S. Constitution, but, practically speaking, the law professor explained that this clause was interpreted to offer relatively little protection in Employment Division v. Smith in 1990. So more relevant to contemporary questions about a state’s right to restrict worship is the Religious Freedom Restoration Act of 1993. In Ohio, its language is mirrored in the Ohio Constitution.

The act allows for restrictions on religious exercise, Strang said. But it puts in place a two-part test to ensure that the government is doing so appropriately. Namely, is there a compelling state interest and is the manner what’s called the “least restrictive means”?

A compelling state interest is generally understood to cover the protection of human health, so that covers the first criterion, he said. The second is where he sees room for reasonable debate: Is a total closure of a house of worship the least restrictive means of protecting human health?

Could a less restrictive order limiting the number of people inside a house of worship achieve the same goal, for example? How about one ordering congregants to keep at least 6 feet between them? Or one ordering social distance plus thorough disinfection between services?

“The state would have to have evidence supporting its judgment that all these other less restrictive means couldn’t meet the goal as well as a complete ban,” Strang said. “So that last part, I think, is where religious communities would have the most powerful arguments.”

High-profile cases have raised the questions in other states, including Florida, where authorities arrested a megachurch pastor who continued to hold services late last month.

But Strang said he sees the local order as a good example of a better model: Civic and religious authorities seem to be working together toward a common goal, each respecting and working within their own spheres of influence. Catholic bishops had suspended public liturgies in Ohio by mid-March, for example, and elder boards of individual congregations have largely made the same decision.

DeWine’s comments in early April alluded to Solid Rock Church, in southwestern Ohio, which has continued to gather throughout the pandemic. While both state and local officials have addressed their decision to continue worship, neither has taken action against the church.

Even as local pastors have largely opted to abide by the spirit of the state stay-at-home order, two said they can appreciate that the state stopped shy of telling them what to do.

“I really sense that the governor has a great respect for religious liberty,” the Rev. Clint Tolbert said. “And likewise, I have a great respect for the governor’s authority, and frankly, the Bible calls us to have respect for all authority that’s placed over top of us.”

Tolbert pastors First Presbyterian Church of Maumee, where he said it became clear to their elder board that they should shift online after a debated service on March 15.

The Rev. Lee Williams pastors Search-Lite Community Church out of the same building as First Presbyterian. Search-Lite suspended in-person worship a week before their neighbors, although the pastor said his congregation is small enough that they likely could have maintained the appropriate social distance if they had wanted to continue meeting in person.

“Gov. DeWine has been pretty upfront about the decisions for the state of Ohio,” Williams said. “I thought that they were reasonable.”

Both pastors said they’ll generally be looking to civic authorities again for cues on when they could begin to re-open the doors to public worship. Tolbert said he anticipates this will be an even more challenging question than their decision in mid-March.

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By Nicki Gorny

The Blade, Toledo, Ohio (TNS)

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