A wide-reaching religious liberty battle over drive-in church services is developing, pitting churches against local governments in litigation.
The lawsuits, the result of a tightening tension between church and state, attempt to resolve an apparent conflict between religious freedom and public safety. Proponents of drive-in services say that they are a safe way for people of faith to worship during the coronavirus pandemic without exceeding the 10-person limit on gatherings which most governors have imposed. Detractors argue that because social distancing at individual services is hard to regulate, the possibility of spreading the virus is still too great to risk.
The tensions snapped last Wednesday when police in Greenville, Mississippi, issued $500 citations to members of Temple Baptist Church, who had gathered in their parking lot to listen to their pastor, Arthur Scott, preach over the radio. Before ticketing cars, police asked congregants to leave, informing them that they were in violation of a ban on drive-in services instituted by Mayor Errick Simmons the previous day. Tickets were only given to people who would not leave.
Simmons’s ban, which he issued following Gov. Tate Reeves’s shelter-in-place order, said that because of the Mississippi Department of Health’s prohibitive guidelines pertaining to “recent COVID-19 cases specifically linked to church gatherings,” he was shutting down all church functions, including drive-in services, until Reeves lifted his shelter-in-place order. Simmons encouraged churches to move their services to Facebook Live, Zoom, or other online streaming services.
The order did not faze Temple Baptist, an older congregation, many of whom say they do not have readily available internet access or social media accounts. Nor did it stop the King James Bible Baptist Church from assembling the same day that police fined members of Temple Baptist. When police arrived to break up the service at King James, the church’s leader, pastor Charleston Hamilton, took a video of the event, which went viral on social media. No citations were issued.
On Thursday, Hamilton’s church, represented by the First Liberty Institute, a legal group which specializes in religious liberty cases, sent a letter to Simmons asking him to rescind the order before noon on Good Friday. Simmons did not respond by the designated time. By then, the story had captured national interest, with Hamilton on Friday appearing on Fox News’s Tucker Carlson Tonight to defend his church, alongside Kelly Shackleford, a representative from First Liberty.
That same day, Scott’s church, represented by Alliance Defending Freedom, a legal group which specializes in First Amendment cases, filed suit against Simmons for issuing an “unconstitutional” order whose enforcement runs “afoul of the freedoms protected by the First Amendment.” The group demanded that the mayor rescind his order and that damages be awarded to members of Temple Baptist.
In both of these situations, church leaders said that, throughout the service, their members remained in their cars with the windows rolled up. Both legal groups cited the First Amendment, specifically the free speech clause and the right to assemble, as the primary basis for the ban’s unconstitutionality. ADF also cited the due process clause of the Fourteenth Amendment, saying that in the church closure order, Simmons did not specify what the penalty, if any, would be imposed on churches that violated the ban.
Both groups looked to state law in their defenses as well, invoking Mississippi’s 2014 Restoration of Religious Freedom Act, a state version of a federal law, which states that “government should not substantially burden religious exercise without compelling justification.” In its filing, ADF argued that since Simmons’s order is not “narrowly tailored to advance any government interest,” it is in violation of the law. Similarly, First Liberty representative Jeremy Dys said in his letter to Simmons that the ban violates the Restoration of Religious Freedom Act because it does not advance government interest by “the least restrictive means.”
ADF senior counsel Ryan Tucker emphasized this last point by pointing out that, while Simmons’s order banned church gatherings, the city still allows the drive-in fast food chain Sonic to remain open.
“Government is clearly overstepping its authority when it singles out churches for punishment, especially in a ridiculous fashion like this,” he said. “In Greenville, you can be in your car at a drive-in restaurant, but you can’t be in your car at a drive-in church service. That’s not only nonsensical, it’s unconstitutional, too.”
Simmons responded to the legal claims during a Monday press conference, where he said that his previous order had been issued under the assumption, disputed by both legal groups, that Reeves had banned drive-in services in his shelter-in-place order. Simmons referenced a conversation he had with Reeves, where the governor told Mississippi mayors that he did not believe drive-in services would be workable because “people of faith like to fellowship,” meaning, to gather in close groups.
As a concession to Temple Baptist, Simmons retracted the citations issued to church members. He did not, however, lift his ban, saying instead that he would ask Reeves for clarification on how to proceed. Simmons emphasized that his order was only intended to “save lives,” and that he would continue to work with churches to make sure that they understand the risks of meeting.
Following the press conference, representatives from ADF told the Washington Examiner that they have no plans to drop their suit. Representatives from First Liberty were equally censorious of Simmons.
“The mayor continues to single out and target the churches of Greenville,” Dys said in a statement, adding that in all likelihood First Liberty will take further action.
These two situations represent an evolving fight between church communities and governments over what the definition of a “compelling interest” is in the case of churches facing shutdowns during the coronavirus. As early as March, the issue was beginning to crop up at the state level: In Indiana, state Attorney General Curtis Hill reprimanded a county health commissioner for issuing a stay-at-home order that contained “unconstitutional religious discrimination” because it unnecessarily burdened churches.
Across the country, churches debated whether or not they should move their services online, especially as Easter approached. Those that chose to remain open took one of two paths. The first, adopted by pastors such as Tony Spell from Baton Rouge, Louisiana, was to defy stay-at-home orders outright. Spell told the Washington Examiner that his “extreme faith and deep convictions” compelled him to hold services as if there was no coronavirus pandemic. Others followed suit, drawing a reprimand from President Trump, who told pastors on Friday to “heal our country” instead of holding in-person services.
Spell, along with other pastors, held in-person services on Easter Sunday anyway.
The remainder reorganized their churches around drive-in services, which, by Friday, resulted in the lawsuits now underway. These pastors, often using arguments grounded in the First Amendment and Restoration of Religious Freedom Acts, said that their churches, because they maintain social distancing, should be classified as “essential” businesses and allowed to hold services.
In a case similar to those in Mississippi, Louisville district court judge Justin Walker on Saturday addressed the issue after On Fire Christian Church, an evangelical church in the city, filed a lawsuit on Friday against Louisville mayor Greg Fischer. The church, represented by First Liberty, alleged that an order released by the mayor prohibiting all services, including drive-in church, was unconstitutional and violated the Kentucky Religious Freedom Act, the state’s version of RFRA.
On Fire said in its filing that it had just as much of a right to remain open as do drive-in restaurants or liquor stores. Furthermore, it argued, the city did not have a “narrowly tailored” compelling interest to shut down drive-in services.
Walker concurred, and granted a temporary restraining order on the ban, so that the church would be able to celebrate services on Easter. In a wide-ranging explanation of the temporary restraining order, Walker connected the lawsuit to a larger battle over religious liberty questions, which have resulted in several Supreme Court cases.
“In recent years, an expanding government has made the Free Exercise Clause more important than ever,” Walker wrote. “It was not long ago, for example, that the government told the Supreme Court it can prohibit a church from choosing its own minister; force religious business owners to buy pharmaceuticals they consider abortion inducing; and conscript nuns to provide birth control.”
In one of the cases Walker referenced, Burwell v. Hobby Lobby Stores, Inc., ADF represented the home goods store from an Obama-era mandate that would require it to buy abortifacient contraceptives. The group has defended a number of religious institutions in high-profile religious freedom cases, including Colorado cake maker Jack Phillips. For its part, First Liberty has also defended religious groups in a series of notable cases, most recently a case where the Supreme Court decided that a giant stone cross maintained by the state of Maryland could remain on a public highway.
Following Walker’s decision on Saturday, Department of Justice spokeswoman Kerri Kupec said that Attorney General Bill Barr was exploring ways to take action in favor of drive-in services. Barr has used the Justice Department in the past several months to express support for religious groups, filing statements of interest in several cases since his appointment last year.
Barr on Tuesday released a statement of interest in the case of the Mississippi churches, saying that “religious institutions must not be singled out for special burdens.”
