I have previously written about the imperative  for the Church to restore the obligation to participate in Sunday Mass as part of the way back to normal in post-COVID America. That process is slowly getting underway, but there’s another side of that process: the Church must protect itself against Caesar in a future pandemic situation.
When governments – primarily state and local – began closing down public assemblies last spring, bans were also imposed on the Church. Because society could not be totally locked down, officials began issuing ever more detailed lists of “essential services” that might continue to operate.
Grocery stores were exempted: “man does not live on bread alone,” but neither does he live without it. In a society whose Founders thought of people as being arrayed into competing “interests,” however, the more complex the economy and the longer those restrictions were in place, the more those “interests” found ways to shape public policy in their favor.
By the end of the summer of 2020, some officials seemed to believe that COVID had become so “smart” that it was particularly infectious in loosely packed buildings with stained glass windows, but far less virulent in liquor stores (especially if state-run), casinos, abortuaries, marijuana “dispensaries,” or packed big-box stores.
Religious believers recognized that double standard and began asserting their Constitutional rights. As the late Father Richard John Neuhaus constantly observed, the very first right enumerated in the very First Amendment of our Constitution is freedom of religion. Not freedom of the press, assembly, speech, immunity from double jeopardy, or guarantee of due process. The first thing the First Amendment talks about is freedom of religion.
That might surprise many modern Americans, who have been propagandized to believe that their country was founded to ensconce “racism.” An objective look at the American Founding confirms that some colonies were established as money-making schemes that soon imported slaves (Virginia). But it also recognizes that many colonies were established to provide for the free exercise of religion (Massachusetts, Connecticut, Rhode Island, Pennsylvania, Maryland).
Those early settlers provided for the “free exercise of religion” (at least theirs). Those who sought religious freedom did not think of it as “freedom of belief,” i.e., you are entitled to believe whatever you want in your head as long as you keep it there. They supported the public exercise of religion.
Fr. Neuhaus made a related point about the First Amendment. “No establishment” had a limited purpose: it was a means to promote all religions flourishing in the public square, but it barred privileges for any one religion. The American public square was to be free to all religions, not free from any religion. That was how the Supreme Court saw things until 1947. Since then, it has started treating religion as such as suspect; rather than allowing religion to flourish, it has been seeking to drive it from public life and influence as a “threat” to “democracy,” demanding all citizens pretend to be non-religious in the public square.
We can divide the past year into two periods: B.B. (Before Barrett) and A.B. (After Barrett). The B.B. Court treated free exercise claims as just another “interest” the state had to “balance” vis-à-vis others. The A.B. Court is arguably moving in the direction of what the Constitution presupposes, i.e., that religion is not a “private interest” but a “public right” that is protected from infringements that require the strictest justifications. (See here , here , and here .) No wonder those who have spent the past seventy years pedaling the myth that American liberty is built on a secularized vision of society are ringing alarm bells.
As we emerge from this pandemic, it is imperative that the Church reassert its rights vis-à-vis Caesar. Catholics should demand clear laws that affirm religious services as “essential services.”
The handwriting has long been on the wall. Eight years ago, I remarked  how clergymen were excluded from attending the injured and dying at the Boston Marathon bombing because they were already regarded as “non-essential” to the “emergency.” The ensuing years have only further marginalized religious exercise; elite opinion has privatized religion and declared any recognition of it by public authorities as unessential, suspect, or even illegal.
So, what do Catholics need to do?
1. State Catholic conferences and the USCCB should draft model legislation for introduction into the House and Senate, and every one of the 99 state legislative chambers across America, stipulating that, under any laws that grant emergency powers to executives to impose civil restrictions but contain exceptions for “essential services,” those essential services must include access to public religious worship (including access by clergy to emergency scenes).
2. They should work with interreligious coalitions to demand up and down votes on such legislation in 2021.
3. Legislators should be pressed to state their position on such legislation and, where possible, to co-sponsor it. Executives should be pressed to state whether they support and will sign it.
4. New Jersey and Virginia both have state elections this year. Both have governors who zealously locked down public worship. New Jersey is the third most populous Catholic state. No candidate for public office should be allowed to evade taking a stand. Both states should be good test runs to carry this issue nationwide.
South Carolina is moving on such legislation. Other states should follow suit. In most states, those emergency executive powers derive from statutory bases. Legislatures need to protect religious freedom. If they won’t, Catholics should use initiative and referendum, where possible, to force the issue onto the ballot.
It’s time to make clear that those statutory bases protect religion as a basic civil right that is essential, especially in times of emergencies.
*Image: Freedom of Worship  by Norman Rockwell, 1943 [Norman Rockwell Museum, Stockbridge, MA]. This was part of Mr. Rockwell’s “Four Freedoms” series, created for the Saturday Evening Post and inspired by President Franklin D. Roosevelt’s speech of the same title given as the State of the Union before Congress on January 6, 1941.