HHS, DOJ Officials Address Religious-Freedom Issues Amid COVID Regulations
The Trump administration has intervened on a number of occasions when pandemic-era policies have transgressed against liberty protections.
The Office for Civil Rights (OCR) at the Department of Health and Human Services hosted a virtual panel Tuesday to mark International Religious Freedom Day — and a portion of that discussion looked at the threat to religious liberty posed by COVID-19 regulations.
Roger Severino, director of HHS’ Office of Civil Rights, said that “as we fight to save as many lives as possible, we really have to remember what people live for.” He said his office has had “to mediate disputes where people were not being able to have access to clergy members at the point of death.”
One of those disputes involved a dying COVID patient at Mary Washington Healthcare hospital in Fredericksburg, Virginia, whose request for a priest to administer last rites was declined due to coronavirus visitation policies. In that case, the Arlington Diocese was able to notify OCR’s Conscience and Religious Freedom Division, which contacted the hospital, and the patient was able to receive last rites.
Following another case at the hospital where an ICU patient was denied access to a priest, HHS intervened again, and the hospital has since updated its policies to allow clergy to visit if they wear proper equipment and undergo infection-control training.
Severino also referenced a case at Staten Island University Hospital in New York, where “a medical-school student had a religious restriction on shaving his beard.” As a result, “He was unable to continue his med-school residency because the university said, ‘You might not have a proper fit with an N95 mask. We won’t let you see patients.’”
“Imagine being put in a position of having to choose between your faith or helping others in a career as a doctor,” he said. “We were able to mediate a resolution to that dispute, where there was an accommodation reached using a powered air purifier that covers the entirety of things so you can wear a beard; and that was a win-win situation where you don’t have to sacrifice your religious beliefs in order to help others.”
In general, Severino noted that when it comes to COVID restrictions, “We don’t want to be in a position where houses of worship are somehow treated as uniquely dangerous when it comes to transmission of the virus. If you are singing in a loud voice, if you are praising God, it doesn’t make it any riskier than if you’re singing in a Broadway musical or if you’re protesting.”
“We want to make sure that there’s proper respect for religious liberty and protecting people’s health by saying this is what you can do to be safer without having to dictate particular modes of religious worship, especially when there’s a risk of being uneven, of preferring secular versus religious,” Severino stressed.
He warned that, “in the era of COVID in particular, there is a temptation for government power to expand, and there are some very good reasons for government to be very proactive during the time of crisis to keep people safe; but there’s also incredible danger when government power expands because, oftentimes, it will butt up against people with a religious viewpoint who may have a different view as to how they want to interact in the public square, and then the government could be overbearing, over-burdensome.”
“That’s why we have to be absolutely sensitive that our civil rights are not suspended during an emergency, particularly not the fundamental right of religious exercise,” he concluded.
State and Local Restrictions
Claire Murray, the principal deputy associate attorney general at the Department of Justice, addressed the series of COVID restrictions enacted by state and local governments. She emphasized, “As the attorney general [Bill Barr] has repeatedly said, ‘There’s no pandemic exception to the Constitution’ and so, as relevant here, that means that the Free-Exercise Clause doesn’t allow religion to be singled out for disfavored treatment.”
“We have filed maybe six amicus briefs on behalf of religious organizations supporting their claims against state and local government where they’re being treated unequally,” Murray said, referencing one example in Greenville, Mississippi, where Temple Baptist Church held only drive-in services, but “that violated the local ordinance against gatherings, and those congregants were subject to $500 fines apiece; while at the same time drive-in restaurants were open, and people could drive in and lower their windows.”
In that case, she explained, “The church sued, and we came in on their side; before the case was even resolved the locality backed off, and that restriction was lifted.”
Murray said the DOJ has also written “a number of letters, both public and more private letters, to state and local leaders to express concern about various practices that they’ve enacted.”
Most recently, she gave the example of a DOJ letter to San Francisco Mayor London Breed over “an ordinance where tattoo parlors, massage parlors were open and could have a number of patrons, but all houses of worship, including their cathedral, which holds 2,400 … were limited to one person. If the priest was there, there couldn’t be any congregants. If a congregant was there, no priest. We just sent a letter saying, ‘These have to be on equal footing.’”
Following the letter, Murray said the DOJ was “very pleased” to see that the city eased their restrictions.