Attorney Mat Staver says he’s more than willing to take up the “harder” religious liberty cases related to the coronavirus.
The 63-year-old chairman of Liberty Counsel, a nonprofit legal group he founded in 1989, has, in the past month, emerged as a sharp critic of orders issued in many states limiting the number of people who can gather in person at church services. These orders, Staver told the Washington Examiner, are clear violations of the First Amendment — and amount to the establishment of a governmental faith, with its central tenet being “micromanaging the form and practice of worship.”
“That is something the government has no authority to do,” Staver said.
With Staver’s leadership, Liberty Counsel has taken on several high-profile cases since March, most prominently that of Rodney Howard-Browne, a Florida pastor who was arrested in early April after refusing to move his services online. It is also defending churches in Kentucky and Virginia, where pastors have clashed with law enforcement for similar reasons. And, as May approaches, it is asking all churches, in a petition led by Staver, to begin this weekend the process of resuming in-person services.
This petition, Staver said, is designed to allow church openings to coincide with the annual National Day of Prayer, which typically falls on May 7. By inviting members back into their buildings, while still abiding by social distancing guidelines, Staver said, faith leaders can acknowledge that the country is starting to “turn the corner” and faith practices can begin to return to normal.
Even churches located in states whose governments are extending shutdowns into May, or beyond, should consider reopening in some capacity, Staver added. It’s a suggestion that tugs at the common thread through the majority of his recent actions: a belief that any government’s attempt to move churches online, while allowing grocery, liquor, and home goods stores to keep their doors open, “reeks of a constitutional violation.”
“Churches, unlike Home Depot and other stores, have a constitutional right to exist,” Staver said. “The other stores don’t.”
That line of argument has achieved mixed results in the courts. A federal judge in Kentucky in April ruled against a church Liberty Counsel represents, saying that churches do not need to gather in person to function as houses of worship. That same week, a judge in New Mexico delivered a similar ruling, as did the Kansas Supreme Court earlier in the month, after Gov. Laura Kelly issued an order limiting services to 10 people.
Even Howard-Browne, who, after his arrest, was vindicated when Florida Gov. Ron DeSantis exempted churches from his stay-at-home order, moved his Palm Sunday services online, citing health concerns. Liberty Counsel has yet to receive a ruling in Virginia, but a majority of federal judges ruled that temporary bans on in-person services do not rise to the level of a constitutional violation.
At the same time, judges in Tennessee and Kentucky found that governments that attempt to suppress churches holding drive-in services violate the First Amendment as well as the Religious Freedom Restoration Act, a federal law prohibiting governments from placing undue burdens on religious institutions. Drive-ins received national attention when Attorney General William Barr published a statement supporting a Mississippi church’s ability to hold such services.
Although Staver agrees with Barr’s opinion on drive-in churches and said he would gladly represent one himself, he also said the attorney general took the “easier” route by throwing support behind churches in a case where the main question was the constitutionality of a local ban singling one out for unequal treatment. In Staver’s mind, the more pressing question is whether or not any bans should be permitted at all. After all, government limiting size numbers on church gatherings, he said, are, in effect, bans on their existence.
“If they can limit you, without giving you the opportunity to engage in social distancing and other sanitizing types of efforts that secular businesses are permitted to do, then they can simply say you can’t exist,” he said.
Staver also disputes the argument that because these bans are temporary, they do not pose a serious threat to religious liberty. His view runs contrary to that of many of his fellow religious liberty advocates, who say that rights can be temporarily suspended if the government can prove a “compelling interest” for doing so.
“The First Amendment doesn’t have a pause button, and it doesn’t have a temporary pause button,” Staver said. “There’s nothing that says you can actually violate the Constitution as long as it’s only for a temporary period of time: The constitutional right never disappears. In fact, it’s even more important in a time of crisis when people want to pretend that it doesn’t exist.”
These positions match Staver’s long history of controversial stances in religious liberty cases. As dean of the evangelical Liberty University’s law school, he defended the college in 2012 after it was required by the Affordable Care Act’s employer mandate to provide forms of birth control that the school considered abortifacients.
Staver received international attention in 2015 while representing Kim Davis, a Kentucky county clerk who refused to issue marriage licenses to gay couples, following the Supreme Court’s landmark Obergefell v. Hodges decision. Staver also acted as Davis’s media point man when the case became an international press feeding frenzy.
After Davis was imprisoned for contempt of court, Staver said that he had been made aware of a gathering of more than 100,000 Christian Peruvians supporting Davis. When that incident was found never to have occurred, Staver apologized, calling his promotion of it an “honest mistake,” adding that, even still, he knew of many people who supported Davis.
Shortly after Davis’s release, Staver organized a meeting between her and Pope Francis, in which he said that Francis told Davis to “stay strong” before giving her two rosaries. The Vatican later clarified that it had met with Davis along with several dozen other people, all of whom were given rosaries. A spokesman for the Vatican suggested that Staver manipulated the encounter to burnish Davis’s image. Staver has maintained that his defense of Davis was his best effort to guard a Christian against a “lawless” Supreme Court decision.
It’s a defense Staver also deploys in his defense of churches during a shutdown, saying that governments are dealing a grave injustice to people of faith.
“I think what they’ve done,” he said, “is taken the scales of justice and literally removed the First Amendment from one side as though it doesn’t exist.”
