Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, May 21, 2020

Additional Thoughts on the Catholic Bishops of Minnesota and Their Decision to Reopen Churches in Defiance of Minnesota’s Emergency Executive Order

In his recent piece in Law & Liberty, Mark Movsesian made the following observation: “For the moment ... there is this striking fact: churches’ opposition to state-ordered closings seems to turn, not so much on the particulars of worship itself, but on attitudes about hierarchy and government authority more generally.”  In other words, more hierarchical religions appeared to be less willing to defy (or even challenge) state orders.  This statement was observably true just a week ago.  However, it left me wondering just how momentary this “moment” might be. Yesterday, we received some clarity.

On May 20th, the Catholic Bishops of Minnesota formally announced their intent to defy Governor Walz’s Emergency Executive Order.  Their letter states in part:

We are blessed to live in a nation that guarantees the free exercise of religion.  This right can only be abridged for a compelling governmental interest, and only in a way that is narrowly tailored to be the least restrictive means of achieving the desired end.  That is why a large majority of states now allow in-person religious services, including many states that had previously suspended in-person religious services.  We think that the executive order issued last Wednesday fails this test.  An order that sweeps so broadly that it prohibits, for example, a gathering of 11 people in a Cathedral with a seating capacity of several thousand defies reason.  Therefore, we have chosen to move forward in the absence of any specific timeline laid out by Governor Walz and his Administration.  We cannot allow an indefinite suspension of the public celebration of the Mass.

The bishops’ decision follows their attempts to work alongside the Governor’s administration to find a suitable alternative to the current policy.  All six bishops have also announced that they will continue their dispensation of Sunday Mass, so parishioners need not attend if they feel unsafe.  The state-wide unity of the bishops is particularly notable, and in this regard, similar to the protests made by the Italian Bishops Conference.

Of course, the vast majority of Catholic dioceses continue to comply with state orders, even going to great lengths to do so.  For example, in the Diocese of Arlington (my own diocese in Northern Virginia), Bishop Burbidge has begun reintegrating half of his diocese as part of Governor Northam’s “Phase 1” plan, while continuing to comply with the Governor’s prolonged Stay-at-Home Order in the other half.  Other bishops have publicly voiced their support for state authorities.  Archbishop Lori, the Archbishop of the Baltimore Archdiocese and former head of the Ad Hoc Committee for Religious Liberty of the United States Conference of Catholic Bishops (USCCB), stated—“I have no sense whatsoever that the authorities, especially here in Maryland, have any animus against our faith.  I do have a sense from my personal conversations with those who have to make these decisions … that they want to keep people safe.”

A general trend seems to be to give local pastors discretion in the reintegration of their church, consistent with diocesan guidance.  However, to put it lightly, this guidance is often less than clear—individual bishops frequently provide their own recommendations and requirements, but also defer to outside guidance.  Additional guidelines for local pastors can include mandatory (but often changing) state orders, guidance from the USCCB, and CDC guidance (although notably these most recent CDC guidelines did not include any recommendations for faith-based groups).

All of this is to say that reopening won’t be simple.  Professor Movsesian’s observation was true just a week ago; religions more inclined towards hierarchy did indeed appear to be less opposed to state orders.  Now, that moment looks as if it may be beginning to pass.  While it obviously remains unlikely that Catholic dioceses will oppose state orders en masse, it seems increasingly likely that select dioceses will.  In fact, the complexity of the Church’s structure may itself begin to contribute to the likelihood of opposition within.


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