Domestic Religious Liberty

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covid-19 religious freedom

April 16, 2020

COVID-19 Provides New Avenues to Attack Religious Freedom, and New Opportunities to Defend It

The enormous strain of the national shutdown is clearly showing the same fault lines on the issue of religious liberty that existed before the shutdown. But it is also showing who is on the offensive. While the enemies of religious liberty commonly try to present their case as a matter of neutrality (e.g., with the slogan “separation of church and state”), or as a matter of injury from religious practice (“harm”), the quarantine is immediately showing the hostility to religious faith (at least traditional Christian faith) on the part of a number of elected officials. Their animosity toward religious belief and practice is entirely constitutional, but attempts to give it the force of law are not.

Some of what’s been done and said is staggering to anyone who has a cursory acquaintance with American religious freedom, although it seems to have become par for the course with secularist assaults in recent years. New York City mayor Bill de Blasio not only closed houses of worship along with businesses, threatening to punish anyone who attempted a worship service, but threatened to close the house of worship permanently as punishment. While a general order against social gatherings can apply across the board in a particular jurisdiction, and can include churches and other houses of worship, it must be temporary, and not targeted at religious groups. New York governor Andrew Cuomo then followed this up in April by insisting that success in stopping the spread of coronavirus was due to human effort (i.e., restrictions imposed on social gathering), not God. The latter comment was an opinion Cuomo is legally entitled to express, but shows the animosity in that state and elsewhere that is behind the attack on religious freedom.

Statewide bans on religious services have raised religious liberty concerns on the part of some believers, but generally pro-religious freedom spokesmen and legal service organizations believe that current restrictions are constitutional in view of their basis in a public health crisis, neutrality of application, and temporary nature. But as was noted in a letter to pastors from the Alliance Defending Freedom legal service organization, if “restrictions are unnecessarily prolonged or strengthened or if religion is targeted by some government body, then that analysis may change.”

One feature that was observable in early in the crisis in March was the quickness of government officials to place restrictions on churches, which then had to be qualified. Maryland Governor Larry Hogan initially declared churches to be non-essential activities. But he then reversed that judgment, recognizing them as “essential,” and allowing churches to be staffed, while prohibiting gathering for worship services and the administration of sacraments. This latter prohibition is particularly egregious because while the state is allowing grocery stores to remain open for the sake of bodily nourishment, it is implicitly saying that spiritual worship is not necessary, even though the free exercise of religion is guaranteed in the Constitution. Indeed, in some theologies, sacraments are judged necessary to provide divine grace. With generally applied precautions (grocery store clerks in fact are closer than six feet from the customer, although glass shields have been used to prevent spreading disease), there seems to be no reason why a clergyman may not administer the sacraments. Governor Hogan did, however, see the value in declaring the Easter bunny essential.

Somewhat similarly, Governor Andy Beshear of Kentucky, after first ordering churches to close, and then altering his order to be generally applicable to large gatherings, ordered police to take down the license plate numbers of anyone attending a worship service and report them to health authorities for a 14 day quarantine. As the linked article notes, this “order reportedly does not apply to drive-in services, but seemingly includes houses of worship that implement social distancing efforts and smaller services.”

Nevertheless, the mayor of Louisville, Kentucky, Greg Fischer, did see fit to ban drive-thru Easter services, citing the need to “save lives.” How people in a car will spread the coronavirus to the public was not explained. Mayor Fischer’s order was, however, quickly overridden by a restraining order from a federal judge, Justin Walker, who maintained that “Easter is one of the most important holy days on the Christian calendar,” and that “if beer is ‘essential,’ so is Easter.”

Another egregious attack on religious freedom in heartland America at Eastertime, this one accompanied by enforcement, occurred in Greenville, Mississippi. There police ticketed every worshiper (not just every car) in the parking lot of Temple Baptist Church with a $500 fine for attending a drive-in prayer service. The city council had banned drive-thru services as long as the shelter-in-place order from the state of Mississippi was in force. Yet the governor’s order did not order the closure of churches.

Again, it is to be noted that there is no reasonable way that the coronavirus could be passed by people sitting in separate cars. As the Alliance Defending Freedom noted on its website, drive-in restaurants are perfectly legal in Greenville, with customers sitting in their cars and opening their windows to receive food. National Review reported on several other cases, including one in Greenville, Mississippi in which church members kept their windows up, as well as a case in Chicotigue, Virginia, in which police entered a church of 16 worshipers spaced far apart as a violation of the governor’s order against a gathering of more than 10 people. This can easily be compared to the many persons still found in grocery stores.

The targeting of religious activity, while similar gatherings are permitted, has now been taken up by the Justice Department. In a court filing it noted that Mississippi’s shelter-in-place order said that essential businesses and industries might continue to operate, and that churches had been declared essential. Governor Tate Reeves of Mississippi declared in issuing the state order that churches were not closed, and that “Mississippi is not China, and it never will be.”

The coronavirus crisis has given secularists something that they could never have hoped to achieve for many years to come, namely, the closure of churches and the end of in person religious activities. Online activities continue, currently beyond their power to suppress. Everyone understands the closure to be temporary, and shared with other social gatherings. But we can expect the theme that traditional religious belief and practice is contrary to “science” and “health,” and thus a threat to the public good, to continue on into the future.

But there is an argument to be made, as was recently made by Cardinal Raymond Burke, that churches provide spiritual nourishment, which is as essential as physical nourishment. If grocery stories are not a threat to public health with proper safety measures taken there, then neither are churches. Our Constitution, despite intense effort to the contrary in recent years, indeed gives special solicitude to religious practice, guaranteeing its free exercise, and so the constitutional right to church activities, again with proper safety precautions, is very reasonable. We must be ready to defend religious freedom today, when for the first time ever public worship is prohibited in much of the country, and in the near future, when the quarantine is lifted, but when nevertheless, churches and Christian religious activity may be disfavored in the way that it is done.


More: Mark Tooley writes about Easter and Closed Churches

Dr. Paul Marshall asks: Do Government Restrictions on Larger Church Gatherings Violate Religious Freedom?


14 Responses to COVID-19 Provides New Avenues to Attack Religious Freedom, and New Opportunities to Defend It

  1. David says:

    I have never encountered secularist groups wanting to close churches beyond Stalin et al. They may regard attendees as misguided and superstitious, but are content to let them go their own way as long as they do not try to force their beliefs on others.

    Remember the snake handling churches? Several states outlawed these on the basis that wildlife was being injured. Of course, the main intent was to protect people.

  2. Jeffrey Allen says:

    I never felt for one minute that the governments were closing churches for any reason except public health. Of course churches should be able to reopen as soon as possible without harming their members.
    One of our friends spent 7 days in the hospital with this virus. It is no laughing matter.

  3. JR says:

    Sigh.

    I can’t even begin. This is wholly and utterly ridiculous.

    I guess if you have a bogeyman, any chance to shrilly chirp makes you feel good.

    • David and JR,

      Give the Left time. Eventually (unimpeded) there we have a state prescribed theology. Two examples: Pentecostal pastor Ake Green was convicted in Sweden of hate speech for preaching a sermon critical of homosexuality in 2003. With the help of Becket Fund and the Alliance Defending Freedom, his conviction was overturned in 2005. Secondly, the Obama Administration attempted to use antidiscrimination law to interfere in the employment decisions of Hosanna Tabor Evangelical Lutheran School in Michigan, giving antidiscrimination doctrine a leg in to the selection of clergy. Much of the effort against traditional religious groups is focused on excluding the practice of their faith from the public square, but as the examples given show, traditional Christian faith and morals are not acceptable anywhere, because they are “harmful.”

      Rick

      • David says:

        Hate speech is not tolerated in Europe as in the US. Attacking minorities is often a criminal offence. This is why neo-Nazi publications tend to be made in America. The few examples you give in no way support your notion that the Left wants to establish a national theology. The Left merely wants to keep religion out of government as did the Founders. You will note that the court case mentioned was decided 9-0 by the Supreme Court and this would include the liberal members.

        • Gary Bebop says:

          Rick Plasterer is right on this one. He’s a valuable “stormy petrel,” and your expressed views are (at best) blinkered and naive. The examples of government power overreach are mounting up during this crisis. Many state officials betray officious attitudes toward religious freedom. The author is issuing warning tickets. He’s got moxie.

        • David,

          To the extent that the government can censor sermons, state approved religion has been established, and sexual morality is basic doctrine in most religions, as I pointed out in an article last year:
          https://juicyecumenism.com/2019/03/01/religious-conscience-2/

          To the extent that the government can say who may and may not be a member of the clergy or religious teacher, a state religion has been established. It doesn’t matter if liberal justices found the Obama Administration’ s audacious effort to do this too extreme at the present time.

          Rick

      • Thanks Rick,I’m involved with a ministry that reaches out to people struggling with same sex attraction.The hatred I have witnessed from leftists is astounding.We meet in secret because of the threats from these people.They would shut us down in an instant if they could.There are amazing testimonies out there that must be kept behind closed doors.The power of the Gospel sets people in bondage free! Blessings to you for speaking out.

      • JR says:

        Slippery slope logical fallacy, well played.

        America is not Sweden.

        Re: Hosanna Tabor case, the SCOTUS ruled 9-0 against the EEOC and the plaintiff. Stare decisis should hold pretty solidly. There are a couple of other cases in play that might change some of the fine details, namely who decides (or what criteria is used) who is considered a ‘minister’ – and those are really valid issues to be considered.

        But no significant portion of the American public or any political party is really considering at this point that ministers are subject to discrimination law.

        I would suggest that every employee should be notified about a religious employers intentions ASAP regarding their ministerial application. If you want the janitor to be a minister (to avoid having discrimination law apply), you need to be up front about it. I’d think that there ought to be a couple of other interesting qualifiers in that declaration (i.e. be a member of a church in the same denomination at the minimum).

        I honestly don’t know how you can manage to function in America if you are so afraid of everyone. Because we, in a democracy, are the ones who direct and control the government via our elected officials. If you fear them, by extension you fear us. You don’t have to be afraid, Rick.

        • JR,

          I’m just now seeing your comment.

          Slippery slopes are real. You do not need strict logical implication to have a good argument. Without widespread acceptance of pre-marital sex from 1968 on, normalization of homosexuality would have been highly unlikely, without the normalization of homosexuality, the advent of transgenderism (at least as a public issue) would have been unthinkable. Same-sex marriage does not imply anything other than same-sex marriage. Conceptually, it could be introduced into a strictly Victorian culture, with non-marital sex strictly forbidden, pornography banned, etc. But in reality, homosexuality and same-sex marriage mean general social acceptance of consensual sex as the social standard, whatever standard individuals and groups in society continue to hold.

          Put no faith in majority rule on culture war issues. Majority rule did not prevail on same-sex marriage, on homosexuality, or on religion (e.g. the school prayer decision). These decisions are understood by the American Left as valorous acts, profiles in courage.

          Your suggestion on informing employees of religious organizations of the ministerial exception status of their jobs is good, if it is offered as wisdom to religious employers in the current environment. It shouldn’t be needed to claim the ministerial exception, which religious organizations should have in virtue of their status as religious organizations.

          I think my original comment stands that a state religion has been established to the extent that the religious requirements of a religious organization are overruled by the state.

          Rick

          • Sarah says:

            Oh, my, you are aware (I hope) that sex outside of marriage, homosexuality, and fluidity of gender have all existed long before 1968? Recognizing as such is nothing more than giving everyone the love and kindness God gave you.

  4. carr says:

    Thank you, Rick Plasterer. This post is much needed. I’m currently winding down the laughter after reading chirping bird comments on how Stalin was a mere secularist.

  5. Larry Yerger says:

    I see the “order” that apparently mandates church closures is unconstitutional… IF the Constitution is (temporarily) suspended then the order would be legal (eg Lincoln suspending habeous corpus in the civil war) but that hasn’t happened… AND the order is not law – I am more prone to violate an illegal order than a recommendation…

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