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.