Masks and the First Amendment

Photo by Kyle Austin on Unsplash

Effective today, the city of Chicago has reinstituted an indoor mask mandate. And we’re not alone: Washington state and Washington, D.C. have them. Dallas appears to have one. Benton County in Oregon has one. And I’m sure there are others and, in light of the Delta variant and the U.S.’s not-so-impressive vaccinate rate, there will be others.

A week ago, the First Presidency sent a letter to all members of the church encouraging us to get vaccinated and wear masks at indoor meetings where we couldn’t social distance.

What does this mean for our church meetings? Well, in light of the First Presidency’s guidance, I would have thought it would be uncontroversial: we’ll return to requiring masks in our meetings, at least in places that have implemented mask mandates.

But I suspect that that’s not always going to be the case, especially in light of the email I received from the Wilmette Stake Presidency last night. (The Wilmette Stake encompasses the north of Chicago and some of the northern suburbs.) The letter begins: “We have continued to gather with caution these last months under the 1st Amendment and under the direction of the First Presidency.” They go on to say that they will encourage ward leaders to open overflow in our buildings to allow distancing, but say nothing about masking. (In the past they have explicitly said they will not require masks.)

If my Stake Presidency is taking a stand against required masks, I suspect that other stakes and wards will too. So in anticipation of that, and in light of the various mask mandates, a quick First Amendment analysis:

In short, there’s nothing in the Free Exercise clause of the First Amendment that would prevent states from requiring masks in church.

The standard Free Exercise Clause analysis starts with a 1990 Supreme Court case, Employment Division v. Smith. The Smith case basically says that in a Free Exercise claim, the court will first ask whether a law is neutral and generally applicable. If it is, it doesn’t violate the Free Exercise Clause.

What does that mean? Basically, it means that if the law applies equally to religious and nonreligious conduct (and it’s not aimed at religious conduct but pretending to be neutral), it can regulated religious behavior. And mask mandates (at least all that I’ve seen) are an example of these neutral and generally applicable laws. If a mask mandate said something like masks are required at church but not at indoor basketball games, it wouldn’t be neutral and generally applicable. If it said masks are required at church, whether indoor or outdoor, but not at outdoor concerts, it wouldn’t be neutral and generally applicable. But where the law says you need to be masked at all “indoor public settings” (which is what the Chicago mask mandate says), it doesn’t violate Smith.

So far there’s been limited litigation over masks at religious services (or, at least, limited litigation that has led to published opinions). One religious challenge to Covid regulations made it to the Supreme Court and the Supreme Court struck down the New York mandate, but disgraced Gov. Cuomo’s executive order treated religion more harshly than other groups and there was evidence that it had been deliberately gerrymandered in a manner to capture certain religious groups.

In its opinion, though, the Supreme Court expressly invoked Smith‘s “neutral” and “generally applicable” standards.

Which is to say, a mask mandate that requires people to wear masks at all indoor public spaces complies with the First Amendment; a city or state can require people to wear masks when they’re at church as long as doesn’t solely apply to churches.

And it shouldn’t even be a question with our church. Not only do we have the First Presidency endorsing mask-wearing at meetings, we also have our popularly-invoked 12th Article of Faith:

We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.

And lest we think that the nearly two-century-old 12th Article of Faith is no longer relevant, in the spirit of the Articles of Faith, the First Presidency encouraged us to “follow the wise and thoughtful recommendations of medical experts and government leaders.” And that’s not a new pandemic-related position: in April 2020, toward the beginning of the pandemic in the United States, the First Presidency announced that members would “sustain and uphold the laws where they reside.” We’re committed, they said, to being “global good citizens.”

Between the First President’s encouragement of both masks and obeying Covid-related laws, the constitutional permissibility of regulating religion, and our obligation to obey, honor, and sustain the law, I hope that our wards and stakes located under mask mandates will do the right thing, the thing that is beneficial for our members and for the community at large, and require masks.

Comments

  1. Btw, are you sick of me blogging about Covid-related matters? Because I’m certainly tired of it. I wish Covid was over and that we could all move on.

    But if wishes were horses, &c. Unfortunately, we’re still in a world where the pandemic is raging and, as Christians and as Mormons, we have an obligation both to our religious community and our broader community to do our best to stop it and fulfill our biblical injunction to care for, protect, and represent the weak and vulnerable of the world. So while I would love to blog about other things, it’s critical that we get our war against Covid right first.

  2. The reference to the first amendment just seems really out of place in a communication from local leaders to local members about local practices. It doesn’t add anything to the discussion and seems to me to be unnecessarily inflammatory to any members that have bought into false narratives–against the church’s teachings–that covid precautions are repressive or violate first amendment freedoms.

  3. I am vaccinated and I believe that everyone should be. But as far as the FP letter, it is very clear that they are not mandating vaccines or masks for church attendance.

    The FP chooses its words very carefully, and they deliberately used “urge” rather than “require or mandate.” In addition, they said that masks are urged when social distancing is not possible. That clearly implies that it is not urged when social distancing is possible.

    For legal reasons, the church wouldn’t want the liability of requiring a vaccine that has not yet received final FDA approval.

  4. Follow the wise counsel of government leaders? What about governors and legislators are ho have prohibited mask mandates? Under you reasoning, don’t people have an obligation to honor and sustain the law by refusing to wear masks in those states?

  5. Ivy, that has nothing to do with this post (which is about masks and complying with state and local mask mandates, not vaccination). But also, the church would face exactly no legal liability if it required people to be vaccinated to come on church property.

  6. And Wayne, I’d love you to point me to the city or state that has attempted to legally prohibit churches from requiring masks. I’m skeptical that there is but also I suspect that any attempt at such a prohibition would, in fact, violate the First Amendment (and even if not, I can’t imagine it would survive a state RFRA). I won’t swear to that because I’m currently at the beach and am not going to research it. But I also suspect it’s irrelevant because it hasn’t happened.

  7. Ann Porter says:

    Louisiana, the perennial canary in the coal mine, has had an indoor mask mandate since August 4th. Last week, we led the WORLD in new cases per capita. Our rolling seven day average is 50 people a day dying. It’s like March 2020 all over again – we had almost as many people on vents yesterday as we did 17 months ago, when venting patients was something they did earlier in the illness. Our hospitalizations broke daily records five straight days last week. Numbers crept down a little yesterday.

    Our stake president cancelled all in person meetings except sacrament meeting. Masks and social distancing are required for sacrament meeting. This requirement came BEFORE the first presidency letter…because #leadership.

  8. I’m totally on board with you on Covid Sam.

    One comment I would be happy to discuss though: I feel safer being six feet apart from people, both indoors and outdoors, rather than being stuffed into church pews with my fellow congregants in masks. I understand it’s not mutually exclusive (masks vs social distancing), and I’m happy to wear masks indoors. I guess what I’m trying to say is I think the first step SHOULD be to open the overflow and spread people out (which is what your stake is doing). Step two would then be to assess the need for masks, taking into account the vaccination rates in the community and whether you can be properly spaced based on the number of people coming to church. Please gently correct me if my line of thinking is missing something. Because my family has dodged COVID this far and we intend to continue to do so. I learn new information every day.

  9. I should start by saying that I am vaccinated. I would urge everyone else to be vaccinated.

    But I need to point something else. We are urged to follow the wise counsel of government leaders and medical experts. This implies that there is one universal opinion. There is not.

    When it comes to masks for the vaccinated, almost every issue of the Wall Street Journal contains an article about or a letter from a medical expert who disagrees that masking should be required for vaccinated people. Although these opinions don’t get attention in popular media, the fact is that there are a significant number of well respected experts who do not share the more publicized opinion.

    That is part of the reason that the church is not mandating masks for the vaccinated. The other reason, of course, being that the church teaches that the whole point of this life is to exercise God-given agency to choose.

  10. I noticed that the FP letter advised us to follow the “wise and thoughtful” recommendations of medical experts and government leaders. Based on the number of people sick and dying of COVID, I would say that any expert or government leader who advises people to not wear masks or not get vaccinated is neither wise nor thoughtful.

  11. Nate Daniels says:

    The outcries about how vaccine and mask mandates are impairing freedoms is nothing more than a belief in fake freedom. A belief that we should maximize personal choice especially when we know that granting individual choice on masks and vaccines makes us less free overall. True freedom is freedom from the impact of the virus. And that means sacrificing some lesser freedoms, such as the freedom to go maskless in large gatherings and unvaccinated when it is easily accessible and free, for much, much greater freedoms.

    Also, allowing conspiracy theories and disinformation to prevail under some misinterpretation of free speech is actually impairing free speech: the freedom of expert knowledge to prevail as the established knowledge. By molly coddling conspiracy theorists we allow false narratives to grow and spread, and makes us less from political division in the face of a dangerous virus. Belief that you should be able to publish and spread lies and disinformation about the virus is also a belief in fake freedom.

    The First Presidency should mandate masks and vaccines, and mandate them hard. Even if it means alienating the unfortunately large number of conspiracy-minded members.

  12. Nate, as someone with over twenty years of experience working in the criminal justice system, I am prepared to address your concept of “freedom” only meaning “freedom from harm.”

    If this is what freedom means, the FP should not stop at mandating masks and vaccines. It should mandate no consumption of sugar, no driving of vehicles, and no use of machines of any kind. It should mandate that no one get married, have children, or live in a home with other people. It should mandate that everyone work and worship from home.

    I can tell you that the vast majority of person crimes are committed by a family member, close associate, or coworker. If the FP is determined to abolish any chance of harm, it must mandate that no one has any personal contact with others—whether vaccinated or masked.

  13. Sherri in Dallas says:

    Masks are actually a large part of the problem. No paper or cloth mask can stop a virus going in either direction. A covid positive person can spread the virus while wearing a mask. Anyone can inhale the virus while wearing a mask. Therefore, since vaccinated people have been proven to still be coming down with covid, and one of the benefits of the vaccine is milder cases, the mild-case vaccinated person may be one breathing out the virus, and anyone in their vicinity may breathe it in. The longer they are in the same room, the more likely the virus is spread. The masks, however, give a FALSE sense of security. The idea that everyone is masked, so no one can spread or catch the virus —- has been proven scientifically to be false.
    I don’t want to catch covid, nor do I want to spread it inadvertently. Therefore my vax status, as well as the vax status of ward members, is completely a moot point for me. I will be staying home to help protect myself and my ward. I don’t see any alternative.

  14. @Sherri

    Seat belts are actually a large part of the problem. No nylon belt can stop a speeding car. A car can kill someone who is wearing a seat belt. Anyone can be killed while wearing a seat belt. Therefore, since seat belted people have been proven to still cause car accidents, a seat belted person might be one of the people causing the car accident. The longer they are on the same road, the more likely there is going to be a car accident. The seat belts, however, give a FALSE sense of security. The idea that everyone is seat belted, so no one can cause car accidents —- has been proven scientifically to be false.

    I don’t want to be in a car accident, nor do I want to hit someone else inadvertently. Therefore my wearing a seat belt, as well as anyone else wearing a seat belt, is completely a moot point for me. I will be staying home to help protect myself and my fellow drivers. I don’t see any alternative.

  15. Sherri, I was going to delete your comment because I’m not interested in misinformation on this blog. But since Pahoran has already responded, let me be completely clear: masks are not part of the problem. They help prevent the spread of Covid. And there are plenty of reputable sources for that. They are not, of course, the only way to prevent it. But they are remarkably effective (and even more effective in combination with vaccination and social distancing but especially vaccination).

    I don’t at all begrudge you the decision to stay home. At this point in the pandemic that seems like a good option. But I will, going forward, delete any anti-vax and anti-mask misinformation.

  16. Sherri, it’s true that masks cannot completely prevent transmission. However, there’s lots of data to suggest that masks do, in fact, significantly mitigate spread. You could look at any of dozens of articles from epidemiologists and infectious disease experts, but here’s one: https://jamanetwork.com/journals/jama/fullarticle/2776536

  17. And Wally, to be clear, I don’t understand the sudden outcry from people about how our agency requires us to not live under rules. That is an ahistorical, un-Mormon opinion that misunderstands (drastically) the role of agency.

    Our agency does not entitle us to live in a rule-free anarchy. It gives us the choice, rather, of whether to follow rules (be they religious, legal, or other) or not. So no, even if the church mandates masking, you don’t have to wear a mask.

    But we also preach responsibility and consequences. And if the church requires you to wear a mask and you refuse, the consequence is that you don’t go to church meetings. That is how your agency works. (Similarly in the governmental context: if you have to wear a mask to go to the movies and you refuse to wear a mask, you’ve made your choice. And the consequence is you watch Netflix at home.)

  18. stephenchardy says:

    Sherri:

    I am writing this as a physician as well as a fellow-saint. There is a big difference between a disease that spreads by droplets (which contain many virus particles) compared to spread by individual viral particles. Masks do not do much to block the passage of individual viruses. In hospitals, if there is an infection that is primarily spread through aerosolized individual viruses, the wearing of N-95 masks is required, along with another of other precautions.

    Covid-19 appears to spread through droplets, which contain many, even thousands of virus particles, and droplets (which are much larger than individual viruses) are blocked, to some degree, by masks. Not perfectly.

    Also important: we should understand the concept of an “inoculum” which is the number of infective organisms required to “catch” a disease. For many intestinal bacteria it is in the 10,000 range. While for a bacteria called shigella it has been shown that only 10 bacteria are enough to result in spread from one individual to another. The number of particles of COVID required to give an infection is in fact not yet known, as far as I can tell. The number required can depend on the route of exposure (skin versus inhaled, vs touching ones nose, etc). Also very important is the duration of exposure: re-breathing the breath of a friend who has 10 COVID viruses in an exhaled breath would be less dangerous then re-breathing the breath of someone who has 1000 particles in their breath. Sitting indoors allows the slow build-up of COVID particles (or any other infection) over time, while outdoors the breath becomes dispersed into a much larger area: the atmosphere around us.

    So, we can decrease the spread of infection by:

    Staying home

    Distancing from others because droplets, in general, don’t travel as far as individual viruses

    Wearing a mask (which will protect against droplets, which is the primary way that this disease spreads

    Minimizing time indoors, and by selecting indoors environments where the air is circulated aggressively rather than poorly. (I don’t think our church buildings were built with air turn-over in mind.)

    And of course by vaccination.

  19. I’d like to echo the comment of stephenchardy above. The CDC has an excellent breakdown of currently known transmission methods here:
    https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/sars-cov-2-transmission.html

    I think a majority of individuals who are actively against vaccination, wearing masks, and general social distancing (whether reasoning by the First Amendment or not) feel that there are minimal or no consequences for their actions in this matter – to themselves or to those around them. In the absence of a great persuasion, my concern is that the only way for them to change their minds is seeing unfortunate direct consequences – such as preventable hospitalization of themselves or a loved one due to the virus. Is there any other way?
    (honestly asking, movie reference mostly unintentional. :) )

  20. A Turtle Named Mack says:

    Plenty of people, like Sherri, drive by spouting whatever random “facts” support their preconceived position. Then we all shout “That’s not science! Here’s the real science.” But they won’t listen and won’t read, just moving on to another audience. The science is clear on the effectiveness of masks and vaccines, and quite easily available for those with eyes to see, and ears to hear. And when the science gets in the way, they turn to things like the Constitution, and freedom. And when that fails (as Sam demonstrates here) they’ll turn it into a question of morality and righteousness.They don’t want to see, and they don’t want to hear. I’ve given up on them.

  21. Nate Daniels says:

    K79, you’re making a hard appeal to the slippery slope fallacy. Can you not tell that COVID-19 has brought the world to extraordinary circumstances?

    I would think that as someone who worked in the criminal justice system that you would be very good at making distinctions and understand gradation. Manslaughter is a lesser crime than first degree murder, isn’t it? Hence it warrants a less severe punishment than the latter. Coronavirus and its variants are much greater threats to world health care systems and public health as a whole, and by corollary a greater threat to world systems, and hence need stronger control mechanisms in order to contain. Leaders of the world united a year ago in imposing strong stringent measures to protect lives and contain the virus. Now so many have given up and have given into the demands of conspiracy theorists. Now is the time for authorities to flex their muscles as hard as they can. Mandate vaccines.

  22. My wife is an ICU RN in Utah. All I have to do is see her fatigue and sadness. Three of her patients died of Covid in the last five days. The next few months will not be easy.

    My Bishop refused to read the First Presidency message in sacrament mtg. The EQ President sent it out in every way possible, urging masks. Several temple workers criticized the First Presidency within earshot of our temple president. He called them into the office and released them.

    This issue has split the church. Pundits vs. prophets indeed. Me and my house choose prophets and the preservation of life.

  23. We’re certainly taking a more cautious and law abiding approach over in Schaumburg where masks aren’t mandated – yet – but the Stake Presidency is wearing them and strongly encouraging everyone else to do so. The same is happening up in Buffalo Grove. I would have expected the Wilmette Stake, the Stake we lived in when I first moved here 34 years ago, to be similarly minded but I guess that’s where leadership roulette comes into play.

    Oh, and Cook County Department of Public Health just mandated masks be worn in all public places but they included a religious exemption with the following declaration:

    “Exemptions
    Free exercise of religion. This Order does not limit the free exercise of religion. To protect the health and safety of faith leaders, staff, congregants and visitors, religious organizations and houses of worship are strongly encouraged to consult and follow CDC recommendations for Communities of Faith. Religious organizations are strongly encouraged to take steps to ensure social distancing, and implementation of other public health measures.”

    https://cookcountypublichealth.org/2021/08/20/cook-county-department-of-public-health-mandates-indoor-mask-wearing/

    Most religious leaders would take this plus the First Presidency letter as a strong push toward masking. But this is 2021 so I’ll be curious to see how your leaders react Sam. ¯\_(ツ)_/¯

  24. One other point concerning the language the First Presidency used. Richard Turley, former Assistant Church Historian and former Managing Director Church Public Affairs Dept, had this to say about the Church’s approach public health and vaccination. Remember this was the man in charge of the Newsroom and all official communications from the Church.

    After giving a pretty exhaustive review of Church statements concerning various pandemics over the last 200 years, he then proceeds to address the most recent message:

    “Well, first of all, I think sometimes people are being a little bit too technical when they try to parse the various statements on the basis of what they’re called. In this particular case, the First Presidency used the most direct and effective method they had at their disposal for communicating their letter. As you know, I was the managing director of the Church’s Public Affairs Department, and then Church Communication Department, and so I know that email is the single most effective method for reaching members of the Church. I think it’s highly significant in this case that we have a message signed by all three members of the First Presidency, and directed using the method that’s most effective in reaching Church members. So, if I were to receive, an individual member, a letter or a call from a member of the First Presidency, which I do from time to time, I would pay attention to it. Think of this in many ways as an individual letter to each member of the Church.”

    “That word “urge” was used in an earlier letter that I read to you as part of this podcast, but I think it’s very important to recognize that this invitation should not be dismissed just because it has the word “urged” and not “commanded” in it. Rarely are we going to hear that word “commanded” used in something like this. We’ll hear words like “urge” because, obviously, there are cases in which you might have someone who may be allergic to the vaccination serum or other cases like that, where it can’t just be universally applied.

    But at the same time, I think we need to recognize that the fact that there may be some exceptions to the rule, and people have their own agency, their own freedom to choose in situations like this, that freedom to choose does not include freedom from the consequences of making a poor decision. Here’s a case where the First Presidency of the Church, based on good medical advice, directed by a President who is a medical doctor, is encouraging Church members, strongly, to be vaccinated. To me, that’s something that I would wake up and pay attention to.”

    https://www.thechurchnews.com/podcast/2021-08-17/episode-44-podcast-historian-richard-turley-vaccinations-face-masks-222519

  25. “We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law” If you read much Church history, you will see this article of faith is really negotiable. We seem to follow the law when it is convenient, and since members are all over the map on this subject, and the Church does not want to look like they are on one side or the other they will keep the guidance as vague as possible.

  26. A Turtle Named Mack says:

    Well, I think it’s pretty clear which side the Church is on for this. People can parse their way out of it, but their support for vaccinations should not be disputed. If they were on the fence, they wouldn’t have issued the statement.

  27. I’m suspicious of mask-advocating medical professionals’ silence about the Covid food vector.

    I’m a farmer, and the Feds told us before the FSMA (2011) became legislation that SARS and Covid transport with meat. SARS, Norovirus, Covid are foodborne illnesses that originate from the conditions of our meat processing. Covid transports in meat. The US exports meat to China, and re-imports back to the US. Recent studies recognize supply chain vulnerability:

    “We estimate the total excess COVID-19 cases and deaths associated with proximity to livestock plants to be 236,000 to 310,000 (6 to 8% of all US cases) and 4,300 to 5,200 (3 to 4% of all US deaths), respectively, as of July 21, 2020, with the vast majority likely related to community spread outside these plants.”
    https://www.pnas.org/content/117/50/31706

    “Although studies show that infectious viruses easily survive during refrigeration and freezing, meat companies do not routinely test the extent to which meat products are contaminated with the virus. Researchers have not specifically tested the temperature at which meat and poultry products would have to be heated to kill SARS-CoV-2.”
    https://www.pcrm.org/news/blog/sars-cov-2-can-be-transmitted-meat-products

    The food vector is the critical control point. Maybe it’s time to revisit Joseph’s vision of agricultural self-sufficiency in Zion. Maybe instead of worshipping medicine, we should take responsibility and dominion of our food and water. The food system we rely on, at present, is an unacceptable offering.

    “For by thy [pharmakeia] were all nations deceived.” (Revelation 18:23)

  28. Ishmael Zaphod says:

    A Turtle Named Mack: “Plenty of people, like Sherri, drive by spouting whatever random “facts” support their preconceived position. Then we all shout “That’s not science! Here’s the real science.” But they won’t listen and won’t read, just moving on to another audience.”

    So true. Sherri posts as Lizzy60 on the LDS Freedom Forum, where she is an active member. She trolls BCC to drum up fodder for her own board.

    Her drive-by and subsequent complaining earned her several likes: https://www.ldsfreedomforum.com/viewtopic.php?p=1169025#p1169025

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