When governors issued stay-at-home orders in March, many required or advised churches to limit their services to 10 people or fewer. Most churches complied, at first.
But as the shutdowns lengthened, and as public opinion on their efficacy shifted, a growing number of churches sued local and state governments, saying their First Amendment rights had been trampled on. The first wave of suits demanded the right to hold drive-in services, but now, an increasing number of churches are attempting to resume their in-person activities.
Jeremy Dys, an attorney at the First Liberty Institute, a legal nonprofit organization representing several churches in these lawsuits, told the Washington Examiner that more churches are suing for in-person services because many governors have not been transparent about the terms of their orders.
“What was once a temporary arrangement is becoming indefinite,” he said. “And that’s unacceptable. For all of these governors to keep extending their orders with no end in sight that to most people, no longer feels temporary but permanent.”
Dys said that the rhetoric of New York City Mayor Bill de Blasio and Illinois Gov. J.B. Pritzker is particularly troubling. De Blasio, who has come under fire for his treatment of New York’s Orthodox Jewish communities, said in April that churches and synagogues that violated his stay-at-home order might be closed “permanently.”
Pritzker, whose original order banned all church services, suggested in early April that he might keep that ban in place until a vaccine is discovered.
“That could be never,” said Dys, adding that statements like that give church leaders just cause to believe that the ability to practice their faith is under fire.
Attorney General William Barr’s Justice Department has made similar conclusions in the past few weeks. The Justice Department has intervened in two coronavirus-related church lawsuits, and the statements of interest filed by officials have guided the ways that courts and governors treat churches.
In the first case, Barr threw his support behind a Mississippi church that had sued Greenville Mayor Errick Simmons for banning drive-in services. In its filing, the church, Temple Baptist, made the case that Simmons was violating the First Amendment and Mississippi’s Religious Freedom Restoration Act. The church also alleged that Simmons had violated the due process clause of the Fourteenth Amendment because of the $500 fines police had issued to congregants without warning.
The case, along with another nearly identical one filed against Simmons, received Barr’s attention because of the unequal treatment that the city’s government had given to churches and local businesses. Both churches noted in their filings that under Simmons’s order, people were allowed to eat at Sonic, a fast-food, drive-in restaurant, with their windows down. Because congregants were not allowed to gather in a church parking lot with their windows up, the churches said, the ban was not “narrowly tailored” to ensure public health.
Barr agreed, citing the discrepancy in the treatment of Sonic and the churches in his statement. The attorney general wrote that it did not make sense why the city would require churches to be closed while allowing drive-in restaurants to remain open, when they “appear to pose an equal — if not greater — risks.”
Barr’s statement had an almost immediate effect. The next day, Simmons rescinded the ban, saying that Gov. Tate Reeves had asked him to do so in a phone conversation. In other states, where churches had brought forward similar cases, judges decided in favor of drive-ins. Churches in Tennessee and Kentucky received favorable rulings in drive-in cases within the next few days.
At the same time, a number of churches brought forward cases alleging that bans limiting their ability to meet in-person violated the First Amendment’s freedom of assembly clause. Early on in the shutdown, these cases were generally thrown out by judges, who found that the suspension of First Amendment rights were, in most cases, constitutional because they were temporary.
In one case, a federal judge in New Mexico wrote that the claims in a lawsuit brought forward in mid-April by Legacy Church in New Mexico did not rise to the level of unconstitutionality because Gov. Michelle Lujan Grisham’s limiting in-person services to five people order was “reasonably related to the demands of the public health crisis.”
Many top religious leaders concurred, saying that as long as these orders remained reasonable and temporary, they were not concerned about the loss of religious freedom.
“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 in a video on the subject. “But it has to be consistently and fairly applied, and it can’t single out churches or religious organizations as opposed to other groups.”
But once governors began extending their shutdowns into May and beyond, more religious freedom advocates said churches suing for the ability to resume in-person services had a stronger case. Mat Staver, founder of Liberty Counsel, a legal nonprofit organization which led the charge on these cases, told the Washington Examiner that states with bans or limits on in-person services had taken “the scales of justice and literally removed the First Amendment from one side as though it doesn’t exist.”
In May, Liberty Counsel brought forward one such case that attracted the support of the Justice Department. A Virginia church, Lighthouse Fellowship, sued Gov. Ralph Northam after police shut down a Palm Sunday service with 16 people present, exceeding Northam’s 10-person limit.
In its filing, the church alleged that, since it is unable to broadcast online, to function as a church, it needs to meet in-person. Furthermore, it said, Northam was treating faith communities unequally to businesses because, under his order, people are allowed to social distance at stores and meetings which Northam himself holds, but not at churches.
The Justice Department found the second allegation compelling, and, in a statement of interest, said that the burden of proof was on Virginia to show that it was not singling out the church for unfair treatment.
“It will be difficult for the Commonwealth to justify having one set of rules that allows for secular gatherings — such as in-person operations for any non-retail business and various other exemptions permitting large-scale retail gatherings — while denying to Lighthouse the ability to worship in modest numbers with appropriate social distancing and sanitizing precautions,” the statement said.
Following the Justice Department’s statement, a series of churches filed similar lawsuits. Most are yet to be decided, but a growing number are making the case that because church is an activity which requires in-person interactions, taking those interactions away is tantamount to banning church.
“Online services and drive-in services do not meet the Lord’s requirement that the church meet together in person for corporate worship,” wrote Tabernacle Baptist Church in a complaint filed Wednesday in Kentucky. “Tabernacle also believes that online and drive-in church services are not substitutes for real in-person corporate worship.”
Despite the lawsuits, some governors are slowly rolling back restrictions on gathering sizes. Pritzker changed his outright ban to a 10-person limit last week after an evangelical church in northwestern Illinois sued him for “hostility” to faith. This week, Gov. Eric Holcomb in the neighboring state of Indiana encouraged churches to reopen on Friday, saying that faith leaders tend to be the “most responsible” at social distancing.
