May 2020 Church & State Magazine | Cover Story

Millions of Americans hunk­ered down in their homes in March and April sheltering themselves from the coronavirus pandemic, venturing out only to buy food and supplies.

But at Life Tabernacle Church near Baton Rouge, it was business as usual for Pastor Tony Spell. Days after Louisiana Gov. John Bel Edwards (D) issued an order banning gatherings of more than 50 people, Spell held a service at his church that drew more than 1,000 worshippers. He used buses to bring people in from the surrounding area.

“If they close every door in this city, then I will close my doors,” Spell told CNN. “But you can’t say the retailers are essential but the church is not. That is a persecution of the faith.”

Spell claimed that members of his Pentecostal flock were practicing social distancing – usually defined as one person keeping six feet away from another – but YouTube clips of the service showed attendees mingling freely, singing side by side and hugging.

Spell had earlier told reporters that he’s skeptical that the pandemic is all that serious, blaming it on a political effort to weaken President Donald Trump. He also asserted that if anyone in his congregation got sick, he could cure them through faith healing.

“It’s not a concern,” Spell told a local TV station. “The virus, we believe, is politically motivated. We hold our religious rights dear, and we are going to assemble no matter what someone says.”

Spell remained defiant even after he was cited by local officials. Hours after receiving a citation on March 31, Spell held an evening service. He vowed that if police took him away, a member of the church would step up and run the service.

The Louisiana pastor was not alone. As the pandemic shut down ordinary life for most Americans in the face of shelter-in-place orders from governors that closed offices, restaurants, bars, stores or other establishments, some religious leaders decided they weren’t going to cease holding in-person services, setting the stage for an epic clash between church and state.

In Ohio, where Gov. Mike DeWine (R) had ordered people to stay home if at all possible, Solid Rock Church in the town of Lebanon kept its doors open for services.

“We are respectful of every individual’s right to choose either to come to our service or to watch online,” the church said in a statement posted on its website. “We do believe that it is important for our doors to remain open for whomever to come to worship and pray during this time of great challenge in our country.”

CNN visited the church in early April and saw about 70 people enter the building. Prior to the service, many were outside hugging one another and shaking hands. A woman was who driving away after the gathering told CNN she was not worried about getting sick because “I’m covered in Jesus’s blood.”

Part of the problem is that Ohio, like several other states, issued orders that were ambiguous when it came to houses of worship, outright exempted them from bans on large gatherings or included houses of worship on lists of services that could stay open because they’re deemed “essential.”

Americans United is working to rectify the problem by reminding governors that exempting houses of worship from the “no gatherings” rules or allowing them to open while similarly situated secular entities must close is not only bad public policy, it’s unconstitutional.

As Americans United points out, banning large gatherings for secular events such as concerts, lectures, sporting matches and others but allowing them for religious services grants houses of worship an illegal form of preference. Nevertheless, exemptions were promulgated in a number of states.

The problem is especially acute in Michigan, where Gov. Gretchen Whit­mer (D) in late March issued a stay-at-home executive order “to suspend activities that are not necessary to sustain or protect life.” Violations of the order can result in penalties, but Whitmer lifted those penalties for houses of worship, effectively nullifying the order for religious gatherings.

Whitmer apparently believed that she lacked the power to extend the order to houses of worship, and even asserted during an appearance on Fox News Chan­nel that the doctrine of separation of church and state tied her hands. She also said that conservative legislators in the state had pressured her to exempt churches from the shelter-in-place order.

Americans United said Whitmer had misinterpreted separation of church and state and noted that during a public health crisis, public officials have the right to put in place neutral restrictions, such as broadly based “must-close” orders, to save lives.

In a March 23 letter to Whitmer, Americans Uni­ted President and CEO Rachel Laser urged the governor to reverse course.

“More than a century of legal precedent from the United States Supreme Court and the Michigan 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,” wrote Laser.

The AU leader added, “There is no question that an exemption for mass gatherings at houses of worship causes a significant and unjustified danger to all. The exemption undermines the effectiveness of efforts to contain the spread of the virus through social distancing and puts everyone, particularly the elderly and other vulnerable populations in houses of worship and throughout their communities, in harm’s way.”

AU’s letter cited several cases where the coronavirus was spread through church services. For example, as of March 20, there were 40 reported cases of coronavirus in Bartow County, Ga., and health officials traced many of them to a single event held at a church on March 1.

In Illinois, Life Church in Glenview held a public event with a speaker on March 15 that attracted about 80 attendees. Ten people have since tested positive for coronavirus, and another 33 are sick.

The problem has become so bad that in some states officials took aggressive steps to crack down on large gatherings, and made no attempt to give a pass to religious organizations. On March 30, police broke up a gathering at a yeshiva in Lakewood, N.J., and charged two men with maintaining a nuisance. (Lakewood officials treated secular gatherings the same way, citing a couple for holding a house party that spilled out into the street.)

 In Hillsborough County, Fla., law enforcement officials issued a warrant for the arrest of Pastor Rodney How­ard-Browne of The River Church in Tampa Bay after people who live near the church reported seeing dozens of cars pulling into its parking lot for an evening service on March 29.

In postings on social media, Howard-Browne had vowed to keep the church open despite a county order banning large gatherings, asserting, “[T]he thing is blown totally way out of proportion and if you shut the church down, the church is not a non-essential service.”

Howard-Browne, who visited and prayed over Trump in the Oval Office in 2017, also claimed, “We brought in 13 machines that basically kill every virus in the place. ...”

Local law enforcement officials were not impressed.

“His reckless disregard for human life put hundreds of people in his congregation at risk and thousands of residents who may interact with them this week in danger,” Sheriff Chad Chronister said.

'Like the virus, the order doesn’t discriminate: It treats all gatherings equally regardless of motivation and allows faith leaders and houses of worship to continue operating under constraints similar to those imposed on other activities.' -- AU legal brief.

Mat Staver, an attorney who runs a Religious Right legal group called Liberty Counsel, is defending How­ard-Browne in court – but it’s unclear whether that will be necessary. On April 1, Florida Gov. Ron DeSantis (R) signed a statewide stay-at-home order that exempts houses of worship. While Howard-Browne can’t be charged for holding services now, law enforcement officials in Hillsborough County told Religion News Service that the order is not retroactive, and they plan to proceed with the charges. (Howard-Browne canceled services April 5, saying, “This will allow an opportunity for people to take a deep breath and calm down.”)

In states where governors have not exempted houses of worship, most lawsuits designed to nullify orders curbing gatherings have not been successful. In New Hampshire, three state residents who said they planned to attend political and religious events filed a lawsuit in state court to block Gov. Chris Sununu’s (R) order prohibiting large gatherings. Sununu’s order did not contain an exemption for houses of worship.

The three residents who filed the lawsuit said the order violated their constitutional rights, but the court disagreed. New Hampshire Superior Court Judge John Kissinger wrote in his ruling that he “cannot imagine a more critical and important public objective than protecting the citizens of this state and this country from becoming sick and dying from this pandemic.”

In New York, a Brooklyn lawyer named Lee M. Nigen sued over Gov. Andrew Cuomo’s (D) order, arguing in part that it violated his right to practice his Jewish faith. Nigen sought a temporary restraining order to lift the ban, but a federal court declined to issue the order and Nigen withdrew his legal action.

In Harris County, Texas, a group of conservative pastors and an anti-LGBTQ activist named Steven Hotze filed a lawsuit before the Texas Supreme Court, asserting that an order issued by County Judge Lina Hidalgo infringed on religious freedom because it required houses of worship to stay closed alongside many businesses. (In Texas, “county judge” is a position akin to a county executive.)

Hotze, a medical doctor, has been active in Christian nationalist causes and Republican Party politics in Texas for decades. Like many on the far right, he was convinced that the coronavirus threat had been over-hyped and told people they could fend it off by taking vitamins.

Americans United’s Legal Department joined the case by filing a legal brief before the Texas high court, asserting that county officials have the right to curb all gatherings on a neutral basis.

“Like the virus, the order doesn’t discriminate: It treats all gatherings equally regardless of motivation and allows faith leaders and houses of worship to continue operating under constraints similar to those imposed on other activities,” observed AU’s brief.

But before the court could act, Texas Gov. Greg Abbott (R) handed Hotze and his followers a political victory by issuing a statewide stay-at-home order that overrode the Harris County directive. Abbott’s order allows houses of worship to hold services as long as they follow guidelines issued by the Centers for Disease Control and Prevention. Those guidelines limit meetings to no more than 10 people, but it was unclear whether Texas officials would seriously enforce this rule when it comes to churches. (A few days later, AU attorneys filed a brief in a similar case from Virginia, where a Russell County man named Larry Hughes filed a lawsuit in state court arguing that Gov. Ralph Northam’s (D) order limiting gatherings to 10 people violates his religious freedom. A state court rejected Hughes’s request for an injunction to lift North­am’s order.)

While the situation facing the country right now is certainly unusual, there is precedent for strong government action to protect public health as long as religious and secular entities are treated the same.

In 1905, the U.S. Supreme Court heard a case called Jacobson v. Massachusetts, which upheld the right of states to fine residents who refused to get mandatory vaccinations. The plain­tiff in the case, Henning Jacobson, was a member of the clergy but did not raise a specific religious objection to the smallpox vaccine he was ordered to take along with everyone else in the city of Cambridge. Rather, he argued that forcing him to receive it was “an invasion of his liberty.”

The high court, ruling 7-2, disagreed.

“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” observed Justice John Marshall Harlan.

Seventeen years later, the Supreme Court affirmed its ruling in the Jacobson case when it ruled in Zucht v. King that the public schools of San Antonio could refuse admission to students unless they were first vaccinated against smallpox. The high court cited the case again in a 1944 ruling, Prince v. Massachusetts, asserting, “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”

Since then, several lower federal and state courts have issued similar decisions specifically rejecting the idea that parents have a right under religious freedom not to vaccinate their children.

Americans United’s letter to Michigan Gov. Whitmer cited these cases as proof that government officials need not issue exemptions to houses of worship.

Two days after sending the letter to Whitmer, Laser wrote to Kansas Gov. Laura Kelly (D), who the day before had issued an order prohibiting gatherings of 10 people or more. But in the order, Kelly exempted religious gatherings “as long as attendees can engage in appropriate social distancing.”

Observed Laser in her letter to Kelly, “This exemption allows religious gatherings to continue under circumstances deemed too dangerous for secular gatherings, putting the public health at risk. We write to explain why this exemption is not only detrimental to public health but also unconstitutional and to urge you to revoke it immediately.”

Laser asserted that the order’s claim that social distancing could protect people at religious services is unlikely.

“[I]f applying that requirement to all mass gatherings were an effective public health solution, the state wouldn’t be barring similar non-religious gatherings,” Laser wrote.

A few days later, Kelly modified her order to include houses of worship in the do-not-gather rule. She noted that 25 percent of Kansas’s coronavirus cases have been linked to religious gatherings. However, a state legislative board dominated by Republicans subsequently voted to overturn Kelly’s new order, but she successfully sued in state court, arguing that this body, Legislative Coordinating Council, does not have the power to overturn her orders.

AU followed up that missive with a letter to New Mexico Dept. of Health Secretary Kathyleen Kunkel, urging her to alter a March 24 public health order that curbs most mass gatherings but that exempts “individuals congregated in a church, synagogue, mosque, or other places of worship.” (After receiving AU’s letter, New Mexico officials altered their order to remove the exemption for houses of worship.)

On April 7, AU sent a letter to Ark­ansas Gov. Asa Hutchinson (R) advising him that his April 4 order that limits gatherings to 10 people but ex­empts houses of worship and merely advises that they adhere to social distancing protocols is inadequate. (Letters to other states were in the works as this issue went to press. Check www.au.org for updates.)

Americans United notes that the vast majority of religious leaders in America are behaving responsibly. Most have moved to online services, or have canceled them entirely.

Some religious leaders have issued thoughtful statements about the need to behave in a way that protects everyone during this difficult time. The leaders of the National Association of Evangelicals and Christianity Today have issued a statement that will likely resonate with many religious people: Believers aren’t being asked to stop worshipping – merely to do it differently.

“Canceling in-person worship services is not the same as canceling worship,” the statement asserted. “Christians should never stop worshiping, because God is worthy of all our praise. Those in the persecuted church have long worshiped God without buildings, because they know that church is not primarily a place but a people. And technology now gives us unprecedented options.”

Some conservatives have also backed church closings. On March 28, Tony Perkins, president of the Family Research Council, a large Religious Right group based in Washington, D.C., tweeted, “At this point, holding public church gatherings in the midst of a public health crisis is not a defense of religious freedom – it is a defiance of common sense and the care of your congregation. Spread the Good News, not the virus!”

Alliance Defending Freedom (ADF), the nation’s most prominent Religious Right legal group, issued a video and Q&A about state-mandated church closings in which the group admitted – albeit somewhat grudgingly – that government officials probably have the power to close houses of worship in the face of a pandemic.

“It’s clear that shutting down church services burdens religious freedom and assembly,” asserted ADF. “But the analysis doesn’t stop there. The government must show a compelling interest for doing so. Right now, during this extraordinary time, it’s conceivable the current situation involving this global pandemic may qualify as a compelling government interest.”

But not long after issuing that statement, ADF defended two churches in Kansas that sued over the state’s order limiting gatherings. A federal court ruled in favor of the churches April 18, although the judge required that the churches abide by social distancing regulation

Americans United criticized the decision.

“As we’ve already seen in Kansas and across the country, COVID-19 doesn’t discriminate between religious and secular gatherings – it spreads easily at both, putting the health of entire communities at risk,” said AU’s Laser.

Trump also spawned some confusion by suggesting that churches might be able to open in time for Easter. In March, Trump toyed with the idea of reopening businesses as a way to revive the flagging economy. He told Fox News he’d like to see the country “opened up and just raring to go by Easter” and during a White House event rhapsodized, “Wouldn’t it be great to have all the churches full? You’ll have packed churches all over our country … I think it’ll be a beautiful time.”

If the statement was meant to be a trial balloon, it deflated and sank. Public health advocates reacted with alarm, and on March 29 Trump announced that federal social-distancing regulations would remain in place at least until the end of April. But just a few days later he reiterated his Easter hopes, insisting that he’d like to relax social distancing rules so people could attend services. (Most churches remained closed on Easter.)

AU’s Laser said she realizes this is a difficult time for many Americans. But, she added, it is imperative that Americans work together to overcome the pandemic, and that means religious entities must be treated the same as secular ones: “We recognize that many people find solace in attending religious services, especially during uncertain times such as these, and thus share in the deep sorrow that the already challenging coronavirus situation also means temporarily halting in-person religious services,” said Laser. “But when health experts and public officials determine that large gatherings must be cancelled for the public good, we must follow their lead and apply these guidelines to secular and religious gatherings equally.”

“We applaud the faith communities that are finding creative ways to worship together online or by broadcast, and we hope that people will find comfort by participating in these virtual services,” Laser added. “We may be physically apart, but we will get through this public health crisis together – even if it’s together in new ways.”

Editor’s Note: Information in this story was up to date at the time this issue went to press, but events were moving rapidly. For the latest news about church-state separation and how it is being affected by the coronavirus, visit Americans United’s website: www.au.org.