During the coronavirus shutdown, not all religious liberty cases are created equal.
In the past few weeks, a flurry of churches filed lawsuits against state and local governments, alleging that bans on services are unconstitutional. Others argued that while the bans themselves are constitutional, additional strictures prohibiting drive-in services are not.
Federal judges delivered decisions on several of these cases last week, finding that the majority of the cases made by religious liberty advocates do not rise to the level of unconstitutionality.
A judge in New Mexico on Friday threw out a case brought by Legacy Church in Albuquerque, where the church disputed Gov. Michelle Lujan Grisham’s order that no church may gather with more than five people. Legacy said that it had been overburdened by the limitation because it required more than five people to organize a service. Furthermore, church leaders said, the order unfairly targeted churches by violating their right to assemble as guaranteed in the First Amendment.
Judge James Browning rejected the case, writing that Lujan Grisham’s order is “reasonably related to the demands of the public health crisis.” Browning concluded that temporarily limiting the size of church gatherings was a “narrowly tailored” order that advances the government’s “compelling interest” of protecting public health. He also noted that New Mexico churches still had the option of online or drive-in services, citing the example set by Catholic Bishop Peter Baldacchino, who last week resumed public Mass within state-ordered limits.
A federal judge in Kentucky on Saturday made a similar decision, ruling against Maryville Baptist Church, which had alleged that Gov. Andy Beshear’s ban on large church gatherings violated the First Amendment. The church had argued that Beshear’s order unfairly targeted houses of worship because it allowed liquor and grocery stores to remain open.
Judge David Hale did not agree. As with the case in New Mexico, he wrote that since Maryville can still meet online and at drive-in services, its religious liberty case was weak.
The Kansas Supreme court last week ruled in favor of Gov. Laura Kelly’s order limiting religious services to 10 people. The decision came after the state Legislature attempted to revoke Kelly’s order on the basis that it unfairly targeted churches. In its opinion, the court ruled that the Legislature did not have the authority to undo an order given by the governor. It noted, however, that by upholding the order, it was not ensuring its constitutionality.
Since that ruling, two churches in Kansas have sued, alleging that the order violates their right to assemble. A federal judge on Saturday ruled that the order temporarily will not apply to them, writing that Kelly’s order appears to have singled out churches for “stricter treatment.” The order still applies to all other churches in the state.
The only churches that have received favorable outcomes, either from courts or because of the support of the federal government, have been churches that have not fought the constitutionality of church service bans, broadly speaking. The most notable of these is the case of two churches in Greenville, Mississippi, where Mayor Errick Simmons retracted his ban on drive-in services amid lawsuits, pressure from Attorney General William Barr, and direction from Gov. Tate Reeves.
The churches, Temple Baptist and King James Bible Baptist Church, sued on the basis that Simmons’s prohibition on drive-in services placed unfair burdens on institutions that were already following Centers for Disease Control and Prevention social distancing guidelines as well as Reeves’s stay-at-home order. They argued that Simmons’s additional order, as well as his decision to fine churches that broke it, violated the First and 14th amendments and the Mississippi Religious Freedom Restoration Act.
In a statement of interest released last Tuesday, Barr voiced agreement, writing that the order did not appear to advance the government’s “compelling interest” in ensuring public safety.
A federal judge in Louisville, Kentucky, delivered a similar decision last week when another drive-in church sued Mayor Greg Fischer for a ban on drive-ins. As Barr did in his statement on the Mississippi churches, the judge wrote in his opinion that Fischer did not appear to be advancing the city’s “compelling interest” of public health by shutting down drive-in services.
Many top faith leaders and religious liberty activists have said that in general, bans on religious gatherings are fine, so long as they are temporary and reasonable.
“It’s not a violation of religious liberty for the state to use its police power towards social distancing,” said the Southern Baptist religious liberty advocate Russell Moore. “But it has to be consistently and fairly applied, and it can’t single out churches or religious organizations as opposed to other groups.”
