What would James Madison and Thomas Jefferson—the philosophical and logistical masterminds behind the historically influential Virginia Act for Establishing Religious Freedom in 1786—have to say about the latest ruckus over religious liberty in their beloved Old Dominion? Lighthouse Fellowship Church, a church located on tourist-friendly Chincoteague Island, is suing Virginia Democratic Governor Ralph Northam, whose stay-at-home order prohibits gatherings of more than ten persons (albeit with a few notable exceptions). Is such an order a violation of that ancient legislation that declares all men “free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities”? More importantly, what are Catholics to make of such injunctions?

The lawsuit is a response to a Virginia police summons to Lighthouse Fellowship pastor Kevin Wilson for holding a 16-person service on April 5 (Palm Sunday), in a building with a maximum occupancy of 293 people. Wilson is threatened with jail time or a $2,500 fine for violating Virginia’s Covid-19 lockdown restrictions. In an irony hopefully not lost on small-government conservatives suspicious of federal overreach, the Department of Justice (DOJ) is siding with the church, declaring that states’ rights cannot come at the expense of human rights.

According to the DOJ’s “statement of interest,” Pastor Wilson’s church has a “strong case” that its First Amendment rights were abrogated by the order banning gatherings of more than ten persons. This is not necessarily because of the logic behind such an order, but because it was applied to churches and not other places of business with questionable “essential” status. Such businesses include liquor stores and professional offices. Moreover, congregants maintained social distancing, sur­faces were cleaned, and hand sanitizer was available to worshipers.

The DOJ’s support of Lighthouse follows a directive by Attorney General William P. Barr urging federal prosecutors to review state and local policies to ensure protection of civil liberties during the COVID-19 pandemic. Assistant Attorney General Eric Dreiband in a statement declared:

For many people of faith, exercising religion is essential, especially during a crisis… The Commonwealth of Virginia has offered no good reason for refusing to trust congregants who promise to use care in worship the same way it trusts accountants, lawyers and other workers to do the same.

Mat Staver, lead attorney for Lighthouse, added that the DOJ had perceived “unequal treatment between religious and secular gatherings in Virginia.”

The office of Virginia Attorney General Mark R. Herring, in turn, has labeled the DOJ interest in the case “counterproductive.” Said Virginia Attorney General spokeswoman Charlotte Gomer: “Donald Trump and Bill Barr should focus on saving lives and ramping up testing, not teaming up with conservative activists to undermine effective public health measures that are slowing the spread of COVID-19 and saving lives in Virginia and around the country.”

Are state prohibitions against church attendance a violation of American jurisprudence and the Founders’ conception of religious liberty? Pace arguments by Catholic thinkers like Father John Courtney Murray, there remains a tension between the conception of liberty promulgated by the Enlightenment-influenced Framers of the Constitution and that taught by the Catholic Church. As an American proud of our tradition of civil liberties, I like to think many of those tensions can be resolved by reference to those Founding Fathers who understood the public character of faith and its role in civic life. Yet the language of that late eighteenth-century Virginia legislation hints at the divergence, with its definition of religious belief as personal, internal “opinion.”

Such a conception is at odds with a Catholic understanding of belief as necessarily relevant to the public square. One cannot be an exclusively “private” Catholic. Hence the existence of parochial schools to ensure a specifically Catholic education, Catholic hospitals faithful to the Church’s bioethical teaching, and Catholic adoption agencies that manifest the Church’s prioritization of the family and the dignity of human persons. We have witnessed attacks on all of these by Americans with a different conception of religious liberty, who seek to restrict Catholic religious practice precisely because they see religious belief as solely private.

Regardless of whether or not we can cite Jefferson and Madison to support Catholic ideas of religious liberty, Catholic tradition does allow for the state to interfere with public religious practice in grave circumstances. As Father Thomas Joseph White, O.P., argues at First Things and Public Discourse, the state “has a fundamental obligation to protect human life, especially when it is gravely threatened.” Such an obligation is compounded during public health crises. “The state,” argues White, “has a moral obligation to seek to halt or slow the spread of the disease.” Thus, “the state can have a reasonable vested interest to protect the lives of citizens” via tools like quarantine. Moreover, there is historical precedent for Church authorities to close churches during health crises, as they did during plagues in Italy between the 15th and 17th centuries.

That said, we should still ask what ordinances represent just applications of the state’s natural right to protect citizens using extraordinary measures during health crises. Especially, as Lighthouse notes, when many other businesses are allowed to operate. As White argues:

Were some political leaders to try to exploit such measures to seek to suppress public Christian practice permanently, or to inhibit it for an unwarranted or arbitrary period of time, it would then be incumbent upon the Church to push back in defense of her proper religious freedoms, including through instruments of civic justice such as the judiciary.

As much as I dislike Virginia Governor Northam for his anti-life, anti-Church political platform, I doubt he is exploiting the crisis to undermine religious practice. I do, however, question the reasoning behind labeling pet stores as essential services exempt from the ten-person rule but not churches. Furthermore, it is concerning that police targeted a church that violated Northam’s edict by six people when so many other Virginians are doing the same in non-religious institutions, and much more egregiously. Such heavy-handed treatment, whatever its intent, looks prejudicial.

As our current pro-religious liberty DOJ asserts, “Unless the Commonwealth can prove that its disparate treatment of religious gatherings is justified by a compelling reason and is pursued through the least restrictive means, this disparate treatment violates the Free Exercise Clause, and the Orders may not be enforced against the church.” I pray that our courts, informed by an American jurisprudence that respects the public character of religious practice will see it the same way.

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