Religious Freedom in the Time of COVID-19

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As more and more non-religious services are permitted to resume while religious services remain shut down, the religious freedom questions will only become more complex.

We’re seven weeks into the shutdown, tensions are running high and many are wondering what our new normal means for school, parenting, work — and religious worship. Since the start of the shutdown, most houses of worship from across the religious spectrum have voluntarily closed down in an effort not just to keep clergy and worshippers safe, but also do their part to flatten the curve. But some churches have pushed back on state stay-at-home orders. Most of these are evangelical, and the resistance has come with dire consequences. One piece in Salon documents 30 evangelical pastors who have died in the pandemic, at least partly because they chose to defy social distancing rules and limit public gatherings in their churches.

A few churches have even brought lawsuits challenging state ordinances restricting religious gatherings. Not all of these cases have presented strong claims, but some have. These churches agree that governments have power to restrict religious freedom during a global pandemic, but they’ve pushed for clarity and precision in the governments’ approach.

In one Kentucky case, On Fire Christian Church sued Louisville Mayor Greg Fischer for prohibiting drive-in church services on Easter. Worshippers arrived in and stayed in their cars, did not roll their windows down and otherwise followed Centers for Disease Control and Prevention (CDC) social distancing guidelines. On Fire’s lawyer argued that, to prohibit the drive-in services despite these precautions “unlawfully target[ed] houses of worship.” This is especially so because even as the city took draconian measures against churches, it permitted liquor stores to stay open, deeming them “essential businesses.” But “if beer is ‘essential,’ so is Easter,” wrote the district court judge, Justin Walker, who went on to say that “‘[t]he mayor’s decision is stunning. And it is, ‘beyond all reason,’ unconstitutional.”

In another case, a Greenville, Miss., church brought a case under the Free Exercise Clause, and the state Religious Freedom Restoration Act, and the U.S. Department of Justice (DOJ) stepped in with a statement of interest. In that case, the church was holding a service in its parking lot. Worshippers stayed in their cars while the church broadcasted its service over a low-power FM station. The church does not have a website and its members do not have social media or the “ability to participate in a Zoom call, or watch services online.” The parking lot service was their best — possibly only — bet.

It was also an option that seemed in full compliance with CDC and state public health guidelines, but the city still dispatched eight uniformed police officers to ticket the church members. Officers issued $500 tickets to people simply sitting in their cars with their windows rolled up. This, the DOJ said, did not meet the necessary standards under our religious freedom jurisprudence. First, it said, there is reason to believe that the Smith standard under the Free Exercise Clause is not applicable. Even though the city ordinance listed church services as “essential,” it treated the church more strictly than it did other essential businesses. The city even permitted closely analogous drive-in restaurants, even when those customers sat with their windows rolled down, but penalized churchgoers who sat with their windows rolled up.

In the DOJ’s view, the Greenville ordinance also did not appear to meet the requirements of strict scrutiny, which requires the government to articulate a compelling interest justifying a restriction on religious practice and prove that there’s no better way (no “least restrictive means”) of serving that interest. Even though prohibiting the spread of a deadly virus is indisputably “compelling,” free exercise jurisprudence requires that governments be more specific than that — they have to show it’s compelling with respect to the complaining church. “If in this fact-intensive and context-laden analysis, the court determines that there are no ‘relevant differences,’ … with regard to the efficacy in containing COVID-19 between what the church proposed and what the city would require, then the city’s measure must yield to the church’s sincerely held religious exercise,” wrote the DOJ. The case is still pending.

On May 4, the DOJ also sided with Lighthouse Fellowship church in Virginia, which had violated an ordinance limiting gatherings to 10 people; the church hosted 16 congregants. The church building has 220 seats, so there was plenty of space and the pastor said attendees followed social distancing and personal-hygiene protocols. According to the DOJ, Virginia offered “no good reason for refusing to trust congregants who promise to use care in worship in the same way it trusts accountants, lawyers and other workers to do the same.”

In Kansas, the First Baptist Church of Dodge City and Calvary Baptist Church of Junction City challenged the state’s stay-at-home order that banned assemblies of more than 10 people. The order exempted bars, restaurants, shopping malls and libraries as long as people practiced social distancing — but did not exempt houses of worship. The judge in that case blocked the state policy from applying to churches, saying the policy was not only overly broad, but also treated secular establishments better than religious ones. He held that the state cannot enforce its stay-at-home order against the two churches as long as they used social distancing measures.

A New Mexico church, First Legacy, was not as successful in its case. The church sued when the state governor, Michelle Lujan Grisham, added churches to the state’s list of non-essential services the day before Easter. The ordinance said no more than five people could gather for services, but the church said it needed at least 30 people to put on the service that would be livestreamed to church members. The church pastor said his building was large enough so that even the 30 members could socially distance within it, but the state argued — and the court agreed — that this was an unjustifiable risk to public health: “[S]uch large public gatherings, even at just one church, have significant potential to lead to an outbreak of COVID-19 affecting thousands of people, causing more deaths.”

These cases were all brought in these early stages of the shutdown, but as the weeks turn to months and possibly to a year or more, we’re likely going to see additional lawsuits. States are gradually reopening, experimenting with a phased approach where some businesses and public areas are opened before others. As more and more non-religious services are permitted to resume while religious services remain shut down, the religious freedom questions will only become more complex.

Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. Her email address is: [email protected].

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