June 2020 Church & State Magazine | Featured

Even as the coronavirus pandemic continued to ravage the country last month, the Rev. Steve Cassell of The Beloved Church in Lena, Ill., insisted he should have the right to hold in-person services.

A stay-at-home order issued by Illinois Gov. J.B. Pritzker (D) allows residents to attend religious services but caps their number at 10. Cassell said that wasn’t enough and sued over the matter.

U.S. District Judge John Z. Lee was not persuaded.

“The Court understands Plaintiffs’ desire to come together for prayer and fellowship, particularly in these trying times,” Lee wrote in an opinion issued on the evening of May 3. “But even the foundational rights secured by the First Amendment are not without limits; they are subject to restriction if necessary to further compelling government interests – and, certainly, the prevention of mass infections and deaths qualifies. After all, without life, there can be no liberty or pursuit of happiness.”

But Lee didn’t stop there. His ruling also debunks what has become a frequent right-wing talking point: that if groceries, drugstores and big-box stores like Walmart are allowed to open, houses of worship should be, too.

Lee pointed out that this is a false equivalency.

“Contrary to Plaintiffs’ suggestion, retailers and food manufacturers are not comparable to religious organizations,” Lee wrote. “The avowed purpose of the Order is to slow the spread of COVID-19. As other courts have recognized, holding in-person religious services creates a higher risk of contagion than operating grocery stores or staffing manufacturing plants. The key distinction turns on the nature of each activity. When people buy groceries, for example, they ‘typically enter a building quickly, do not engage directly with others except at points of sale, and leave once the task is complete.’ The purpose of shopping is not to gather with others or engage them in conversation and fellowship, but to purchase necessary items and then leave as soon as possible.”

Continued Lee, “By comparison, religious services involve sustained interactions between many people. During Sunday services, for example, Cassell encourages members of his congregation to ‘converse’ and ‘build fellowship and morale.’ Indeed, Plaintiffs view ‘informal conversations and fellowship’ as ‘essential parts of a functioning Christian congregation.’ Given that religious gatherings seek to promote conversation and fellowship, they ‘endanger’ the government’s interest in fighting COVID-19 to a ‘greater degree’ than the secular businesses.”

Lee’s ruling in Cassell v. Snyder was one of several decisions that were handed down in late April and May as political leaders in some states took steps to begin easing stay-at-home orders. In some states, the plan was to move incrementally or in phases. But it’s clear that some religious leaders don’t want to wait. They sought to force state and local governments to allow them to meet, despite the pandemic.

The wave of litigation – backed by Religious Right legal groups such as Alliance Defending Freedom, Liberty Counsel, Becket Fund and others – spawned a number of rulings. Most upheld the right of government officials to maintain stay-at-home orders as long as they applied equally to religious and secular gatherings, but there were some exceptions.

Americans United’s Legal Department intervened in a number of cases by filing friend-of-the-court briefs, arguing that allowing houses of worship to meet while banning other types of gatherings is unconstitutional.

The situation remained fluid as this issue of Church & State went to press, but here’s a roundup of some of the prominent cases:

California: Pastor John Duncan of Cross Culture Christian Center in Lodi was holding Sunday services that attracted 25-50 people, in violation of orders from officials of San Joaquin County and the state of California that ban public gatherings.

After Lodi police officers visited the congregation to educate members about the dangers of holding services, the church enlisted an extreme Religious Right legal group called the National Center for Law & Policy to send a letter to city officials asserting that its rights are being violated.

“I must insist that you and your officers respect CCCC’s constitutional rights and immediately cease and desist any and all unlawful police threats of enforcement actions or enforcement actions against the church,” wrote attorney Dean Broyles.

Americans United responded with its own letter to Lodi officials to let them know that Broyles and his group are wrong because legal precedent clearly states that during public-health emergencies large gatherings, religious and secular, can be curbed.

“It has long been established that state and local governments have the power to impose reasonable restrictions on personal liberty to protect the public from contagious disease,” Alex J. Luchenitser, AU associate legal director, and Patrick Grubel, Madison legal fellow, wrote to Lodi municipal and law enforcement officials. “Lodi therefore can and should continue to enforce the emergency orders equally against religious and nonreligious institutions.”

The church sued over the matter but lost in federal court on May 5. U.S. District Judge John A. Mendez denied the church’s request for an order allowing them to meet.

“The State and County orders are not unconstitutional,” observed Men­dez in his decision in the Cross Culture Christian Center v. Newsom case. “Rather they are permissible exercises of emergency police powers especially given the extraordinary public health emergency facing the State. Plaintiffs are not entitled to a temporary restraining order enjoining the application of State and County orders protecting the public health from a vir­ulently infectious and frequently deadly disease.” (Mendez cited a friend-of-the-court brief filed by Americans United twice in his decision.)

Kansas: Two churches sued over Gov. Laura Kelly’s order banning gatherings of more than 10 people and managed to win a preliminary decision from a federal court allowing them to meet as long as they practice social distancing. With the state preparing to issue an order loosening gathering restrictions last month, the matter became moot and was settled out of court.

Kentucky: Several legal cases were under way in Kentucky, where Gov. Andy Beshear (D) had issued a public-health order that banned large gatherings of all types with no exceptions for houses of worship.

In the first of these, On Fire Christian Church sued over a recommendation from Louisville Mayor Greg Fischer that houses of worship refrain from holding services on Easter. The church filed the lawsuit even though Fischer’s comments didn’t take the form of an official order. (The church planned to hold drive-in services with worshippers remaining in their cars – an activity that had not been curbed in Louisville.)

U.S. District Judge Justin Walker, a controversial appointee of President Donald Trump, ruled on April 11 in the church’s favor and even charged that Fischer had “criminalized the communal celebration of Easter.” (Walker has been nominated for a seat on the U.S. Court of Appeals for the Washington, D.C. Circuit.)

Several other lawsuits were filed in Kentucky, and the U.S. 6th Circuit Court of Appeals eventually prohibited the governor from enforcing his order against in-person church services in a May 9 ruling in Roberts v. Neace. Kentucky’s governor then amended his order accordingly.

Louisiana: Pastor Tony Spell, who was arrested for repeatedly holding large in-person church services, filed suit to challenge the state order prohibiting such meetings. Spell is represented by former Alabama Chief Justice Roy Moore, who was removed from office in 2003 as a result of disobeying a court order to remove a Ten Commandments monument from the state judicial building in a lawsuit brought by Americans United and others. On May 15, a federal court ruled against Spell. (Spell v. Edwards)

Maine: Calvary Chapel, an evangelical congregation in Orrington, sued Gov. Janet Mills, asserting that her order limiting gatherings to 10 people or fewer is an unconstitutional infringement on religious freedom. The church’s pastor, Ken Graves, even vowed to open the church’s doors as a form of civil disobedience.

On May 9, U.S. District Judge Nancy Torresen denied the church’s request to overturn Mills’s orders curbing large in-person gatherings.

“The orders are in place to protect Maine residents from the spread of a virus that can cause serious illness and death,” wrote Torresen. “Given what we know about how COVID-19 spreads, the nature of the orders – in permitting drive-in services, online services, and small gatherings, while restricting large assemblies of people – demonstrates a substantial relation to the interest of protecting public health.” (AU filed a friend-of-the-court brief in the Calvary Chapel v. Mills case.) 

Maryland: Regions of Maryland near large population centers, including Baltimore and the Washington, D.C., suburbs, have been hard hit by the pandemic. Nevertheless, a coalition of business owners, politicians and clergy sued over a stay-at-home order issued by Gov. Larry Hogan (R). On May 20, a federal court upheld Hogan’s order. Ruling in Antietam Battlefield KOA v. Hogan, U.S. District Judge Catherine C. Blake twice cited a brief filed by Americans United, calling it “timely and useful.”

After the lawsuit was filed, Hogan announced a partial reopening of the state that allows houses of worship to operate at 50 percent capacity.

New Mexico: The state initially exempted religious services from its mass gathering restrictions. That exemption was removed after AU’s public policy team sent a letter objecting to it. A church then filed a lawsuit, but a federal court denied its request for a temporary restraining order, issuing a 100-page opinion. AU filed a brief in the case, (Legacy Church v. Kunkel)

Texas: A group of plaintiffs, including some pastors and former U.S. House Majority Leader Tom DeLay, filed a lawsuit challenging Harris County’s mass-gathering restrictions, even though it allows churches that cannot hold remote services to hold in-person ones. AU filed an amicus brief, and the court denied a request for injunctive relief. (Hotze v. Hidalgo)

Virginia: Lighthouse Fellowship Church in Chincoteague Island is suing over an order by Gov. Ralph Northam (D) that bans gatherings of 10 or more individuals. Church leaders argue that they can hold services safely by practicing social distancing. In early May, a federal court denied the church’s request to block Northam’s order. The church, which is represented by Liberty Counsel, appealed that ruling and has won support from the U.S. Department of Justice. AU filed an amicus brief. It appears that the case is now moot because Northam has since relaxed mass-gathering restrictions. (Lighthouse Fellowship Church v. Northam)

Aside from legal action, Americans United is active on other fronts. The organization’s Public Policy Department has written to governors and public health officials in several states advising them that they should not exempt houses of worship from stay-at-home orders.

So far, AU has sent letters to officials in Arkansas, Connecticut, Indiana, Iowa, Kansas, Michigan, New Mexico and Tennessee.

In the letters, AU noted that legal precedent stands on the side of allowing government to curb mass gatherings during public health emergencies.

“More than a century of legal precedent from the United States Supreme Court makes clear that the government has the authority to protect the public health through appropriate measures such as mandating vaccinations, even when some people have religious objections to complying,” reads the letter.

AU pointed out to governors that several outbreaks of coronavirus have been traced to gatherings at houses of worship. In April, officials in California reported that nearly a third of Sacramento County’s coronavirus cases were connected to churches. In Hopkins County, Ky., a single church revival resulted in 50 confirmed COVID-19 cases and six deaths. After a church in Arkansas held an event for children, at least three people died and 37 congregants tested positive for the virus. In New Rochelle, N.Y., 100 people, most of whom were members of the same synagogue, were forced into quarantine after a man carrying the virus attended events there.

Nonetheless, it has been difficult to get some religious leaders to accept the fact that holding services threatens their communities. In California, three pastors in Riverside and San Bernardino counties insisted there was no problem with their holding in-person services because they hadn’t been exposed to coronavirus. In fact, a person can carry the virus and show no symptoms. Such people will likely never know they are infected but are still capable of passing the virus on to others.

Polls show most Americans are wary of reopening the country too early. The Associated Press in early May issued a poll done in conjunction with the University of Chicago Divinity School that asked specifically about religious services. Forty-eight percent said in-person religious services should not be allowed at all. Forty-two percent were willing to allow them with proper social distancing and other restrictions. Only 9 percent backed allowing them with no oversight.

Trump was asked about reopening churches during a May 3 virtual town hall sponsored by the Fox News Channel. In a rambling reply, he said, “I hope it’s going to be very soon, because I’m seeing things that I don’t like seeing. I see some churches – they are literally staying in their car with the window closed. I guess it comes out through the radio, the service. And they were getting arrested, and they’re sitting in a car, and the cars are even far away. … And we have to get our people back to churches, and we’re going to start doing it soon.”

On May 8, Vice President Mike Pence traveled to Des Moines to meet with clergy about reopening houses of worship. The New York Times called the move “another sign that the administration sees churches as allies in its efforts to reopen the country.” Iowa Gov. Kim Reynolds (R) has lifted restrictions on in-person gatherings as long as social distancing is maintained.

Trump has even aligned with armed extreme factions calling for an immediate, full reopening of the country no matter the consequences. He has tweeted in support of armed protestors who swamped several state capitols in April and May demanding that businesses reopen, even as medical professionals caution that moving too quickly too soon will spark a resurgence of the virus.

In early May, the administration rejected guidelines drafted by the Centers for Disease Control and Prevention (CDC) that advised houses of worship on effective reopening strategies. The Times reported that the CDC called on houses of worship to encourage all congregants to wear masks and offer online streaming or drive-in services as an option. The CDC also recommended that churches consider “suspending use of a choir or musical ensemble” during services and that steps be taken to temporarily limit the use of “frequently touched objects,” including hymnals, prayer books and collection baskets.

Even though these were just recommendations, the Trump administration said they went too far and removed them.

“Governments have a duty to instruct the public on how to stay safe during this crisis and can absolutely do so without dictating to people how they should worship God,” said Roger Severino, the director of the Department of Health and Human Services’ Office for Civil Rights.

Americans United’s bottom line remains that as the country moves toward reopening, religious and secular entities must be treated the same.

“When health experts and public officials determine that large gatherings must be canceled for the public good, we must follow their lead and apply these guidelines to secular and religious gatherings equally,” said AU President and CEO Rachel Laser. “The Constitution not only permits it, but demands it. Such restrictions do not violate religious freedom; they ensure religious freedom is not misused in ways that risk people’s lives.”       

Editor’s Note: The information in this story was accurate at press time. But events were moving rapidly, especially court rulings. For the latest news about coronavirus and its effect on separation of church and state, visit www.au.org.