The Heritage Foundation conducted a panel discussion webinar on February 1 concerning the disfavoring of houses of worship in applying restrictions due to the coronavirus pandemic. Katheryn Jean Lopez, Editor-at-Large of National Review, moderated the discussion, which included Garry Leist, Pastor of Calvary Chapel, Dayton, Nevada, Rabbi Chaim Dovid Zwiebel, Executive Vice-President of Agudath Israel of America, and Matt Sharp, State and Government Relations Director of the Alliance Defending Freedom.
Emilie Kao of the Heritage Foundation, who is also an IRD board member, introduced the panel by noting the victory for religious liberty won at the Supreme Court last November (Roman Catholic Diocese of Brooklyn vs. Andrew Cuomo, which incorporated a case brought by the Haredi Orthodox Jewish organization Agudath Israel). In it the court overturned New York Governor Andrew Cuomo’s ban on religious gatherings of more than 10 people or 25 people (which he applied and rescinded at will to any part of the state he chose). She noted Associate Justice Neil Gorsuch’s concurrence, which said that the only apparent justification for the severe limits was the judgment that religious gatherings were less important than secular activities and gatherings. In an understatement, Gorsuch said that this is unconstitutional discrimination under the First Amendment (really, the First Amendment’s “free exercise” guarantee should mandate preferential treatment of religious activities).
Garry Leist spoke first, saying that his Nevada church was growing and expecting to add a 10,000 square foot expansion to the church plant. But in mid-March, 2020, the church shut down following President Trump’s declaration of a state of emergency due to the coronavirus epidemic. This was supposed to last only a couple of weeks, but turned into a shutdown lasting months on end with repeated “open ended” orders from Nevada’s governor. He said that the fear surrounding the coronavirus epidemic was used for “an all-out assault on churches.” After months of shutdown, “the members of the church were suffering greatly … from the separation of fellowship and spiritual encouragement.” Remote services and communication were no substitute for in person gathering. He characterized the situation as one in which “the people were becoming sick.” This ailment was spiritual, emotional, and even physical. Older people were “suddenly shut in, losing all personal contact with the outside world.” Marriages were strained and children upset.
In May, the governor opened public accommodations in parts of Nevada at 50%, including casinos. But churches were limited to 50 attendees, regardless of the size of the church building. Challenging this inequity in court did not bring relief, even when taken to the U.S. Supreme Court. Only after the Supreme Court’s later ruling, noted above, in favor of the Diocese of Brooklyn, did Calvary Chapel receive a “favorable ruling from the Ninth Circuit Court of Appeals.” He said that now “people once again are being positively impacted; they have hope in their lives.” Nevertheless, stories of “broken marriage and families, drugs and alcohol being abused, suicide, damage to kids who saw the removal of God as essential to life, are yet untold.” He said that the government must recognize that “the worship of God” is essential, and “churches provide much more to the community than just a place to gather for an activity.”
Rabbi Zwiebel said that the challenge to public worship “is at the very pinnacle” of the challenges of the coronavirus epidemic, and certainly from the standpoint of his community. He saw “commonalities” between the problems experienced by Calvary Chapel and his own Orthodox Jewish community. He said that “at the end of the day” the controversy over re-opening houses of worship amounts to “do we appreciate what religion means to our community.” He maintained that religious freedom was a “bedrock founding principle” of America, and referred to the Pilgrims and the Puritans who came to America to worship God according to their own consciences. Part of American society today, however, sees religion “as the enemy of all that is good and fine and wonderful.”
Zwiebel said that the fact that the Supreme Court has deemed religion essential is a crucial victory. He noted that Governor Cuomo had deemed “bicycle shops, liquor stores, [and] acupuncture facilities” to be “essential” and had no limitations on the people they admitted, while religious services in the most restrictive “red” zone could have no more than 10 people in attendance. This, he said, was “a symbol of the denigration of the value of religion.” He noted in particular that the Supreme Court overturned the judgment of a lower court that religious groups should accept modifications of religious practice in the pandemic. But it is religious communities themselves, he said, who should decide what is religiously important. Lopez noted that in the case of the Archdiocese of New York, the modification of religious practice the governor could mandate would mean that only 10 people could attend mass in St. Patrick’s Cathedral.
Lopez then asked Sharp to review how the legal conflict over corporate worship has proceeded in the United States over the course of the coronavirus epidemic so far. He said that in the “first wave” of the shutdown of corporate worship some localities prohibited even drive-in services and live-streamed services (since staff were prohibited from assembling to conduct live-streamed services). Demand letters from ADF and other legal service organizations supporting religious freedom resolved many of these problems. A second wave continues to the present day. This involves a severe limitation on the number of worshipers. In the case of Nevada, noted above, churches were limited to an attendance of 50 persons, no matter the size of the building holding worship, although casinos could be open with thousands of attendees. California prohibited in-person worship (and treated houses of worship less favorably at all levels of restriction), while Oregon subjected religious schools to limits not placed on public schools. The Supreme Court’s recent decision in the case of the Diocese of Brooklyn and Agudath Israel “pushed back” against this disfavoring of religious activities. Nevertheless, “we’re still seeing some lower courts ignore” that ruling. Notably he said that the Ninth Circuit Court continues to maintain that church activities are more dangerous than grocery stores. Sharp said that to the contrary, getting “spiritual bread” at church is as important as getting physical bread for our bodies.
In addition to litigation, Sharp said that “legislative relief” is important. He said that the proper freedom for religious institutions is “not at some middle tier” in which religious organizations have equal treatment with secular organizations, but – in line with the Constitution – to give religious organizations an elevated right to remain open and function normally. This does not mean that there cannot be restrictions on public activities, but religious organizations should have the highest priority in remaining open. He said that his legal service organization, the Alliance Defending Freedom, has developed proposed legislation, in consultation with state legislators, called “Religion is Essential.” In this model legislation, churches and other houses of worship are treated “at least as good” as other activities that are deemed “essential.” He said that while real progress has been made since the spring of 2020 when drive-in and virtual services were sometimes prohibited, still “we cannot rest on this, because at the end of the day, what religion does is essential.” He noted a 900% increase in people suffering from depression in calls to suicide hotlines in the spring of 2020, at the height of the coronavirus lockdown.
Lopez observed that virtual worship is “not the same thing, doesn’t even come close to being the same thing” as in-person worship. She said she personally observed that in shopping at a grocery store in New York “it was so crowded, and when I go to mass, there is no one near me.”
Zwiebel noted in connection with the level of restriction of religious services that originally “synagogues were closed entirely, we couldn’t even have 10 people.” Later Governor Cuomo allowed worship services to have 10 people, but no more, regardless of how large the worship facility. Yet there are synagogues in New York with hundreds of congregants, while businesses were allowed to open at capacities reasonable for their functioning. He hopes that the Supreme Court’s 5-4 decision opening up worship services in New York at a reasonable level will hold over time. But that four justices (including Chief Justice John Roberts) voted to allow severe restrictions on religious celebrations in the face of the First Amendment when secular organizations can function essentially normally is disturbing. It took all three Trump appointed justices to reach this decision. This writer would suggest that Roberts and perhaps the more liberal justices are intimidated by the leftist legal academy and news media on a new issue which, for the first time, gave the anti-religious left a direct way to attack the religious activities.
Zwiebel said that the Supreme Court decision will be of help in other religious freedom cases, among them, religious education. Here there is an issue of whether religious schools can be open, as well as synagogues, and what they may or must teach. “Government is deciding exactly what can be studied in religious schools and insisting that a particular curriculum be followed that would turn the religious school into a reasonable facsimile of the neighboring public school.” In case there is any doubt about the anti-religious animosity behind these restrictions, Lopez pointed out that Governor Cuomo recently said with respect to a decline of coronavirus cases in New York that “God did not do this, we did this.”
Lopez asked Sharp if there is interest in ADF’s proposed legislation. He said that there is interest, even in states that have been less restrictive of religious liberty. He said that many people have a desire “to put religion back in its proper place” as well as a recognition “of the invaluable work that religion does.” There is real hope that this legislation will be passed in some states. But generally, both litigation and legislation should to be pursued in support of religious freedom against state edicts. Lopez also noted that in states like New York, abortion clinics were allowed to stay open while churches were closed.
Lopez asked Zwiebel what the closure of synagogues meant to the Orthodox Jewish communities in New York. He said that while private prayer is possible (and prayer three times a day is required in his community), communal prayer inclines people to think about the needs of their neighbors, and is a communal “outreach” to God. Lower courts had insisted that communal prayer could be replaced by other kinds of religious practice, but Zwiebel said that there is really no substitute for the communal aspect of prayer. Lopez added that in Catholic doctrine, there is no substitute for the real presence of Jesus in communion, which is given at mass, and cannot be given in virtual worship.
Sharp said that the coronavirus epidemic has shown religious bodies “how vulnerable they are” to being quickly shut down by a government edict. Centuries of religious freedom in America made people unaware as to how quickly the government could close churches. He said he was encouraged at how many pastors did speak out. While not refusing all safety measures, they insist that gathering together “is vital to what we do.” He is also encouraged at “some really good court outcomes.” These cases mean that at a minimum, religious organizations cannot be treated worse than others in any widespread shutdown, and come on the heels of the Trinity Lutheran and Espinoza cases that help to fortify religious liberty in America.
Lopez expressed concern that the Supreme Court decision supporting religious activities against shutdown was only a 5-4 decision. She noted a “strong secularist streak” in America, which even affects religious believers. She asked Rabbi Zwiebel how this can be addressed. He said that this is a challenge “for faith communities, those are challenges for individuals, for parents as they raise their children, and try to convey to their children the centrality of God in their life, and in everybody’s life.” He said that the wider culture poses a great danger to religious communities. The Internet in particular allows access to “anything and everything,” endangering the ability of religious communities to convey allegiance to their faith to the next generation. Household talk “around your dining room table” and in the home generally is important in convey faith, Zwiebel maintained. This writer would add in addition to the centrality of belief clear instruction in faith, and as much as possible, apologetics to reinforce faith are needed at a minimum to reasonably address the threat to religious faith in early twenty-first century America.
Zwiebel said that he was heartened by the number of other religious groups that “expressed their solidarity with us” through friend of the court briefs. He said that “in solidarity we are strong, and our clout politically and legally is enhanced.” In the foreseeable future, he said it is desirable to promote “greater solidarity” among religious groups pressing for religious freedom.
Lopez said that an important reason for churches and other houses of worship to remain open is that “families need resources, parents need resources” to conduct family life. Houses of worship also provide social services as part of their religious practice; “this is the best of civil society.” These religious organizations are meeting “mental and physical needs, as well as spiritual needs.”