In terms of the coronavirus, March 2020 reversed the usual spring weather adage by coming in like a lamb and leaving like a lion.
The month started with less than three dozen known U.S. cases of COVID-19, and the first couple of deaths on American soil had just been attributed to the virus on Feb. 29. By the end of March, that number would soar to more than 192,000 U.S. cases and more than 5,000 deaths. And that was just the beginning.
Americans United’s work relating to the coronavirus similarly was practically nil on March 1. But within two weeks, AU staff had transitioned to working from home – AU President and CEO Rachel Laser was featured in The New York Times on March 18 discussing the novelties and inconveniences of having an all-remote staff. Little did we know then those novelties would become run-of-the-mill, and the inconveniences would last more than a year and counting.
As Laser wrote in last month’s issue of Church & State, “This has not been an easy time. Last year included a global pandemic, a painful racial reckoning, a bruising Supreme Court confirmation battle and a fourth year of President Donald Trump’s war on church-state separation. My colleagues also have had to battle everything from losing parents to homeschooling children to feeling isolated and lonely. Nevertheless, they brought their all and then some to the many new and old challenges coming our way.”
Among the new-old challenges brought by COVID-19 were religious freedom concerns connected to how public officials and courts were protecting public health and directing public funds in response to the pandemic.
As we pass the one-year milestone of the coronavirus pandemic, here is a look back at Americans United’s work to protect church-state separation amid unprecedented circumstances.
Even as he declined to take the virus seriously, President Donald Trump declared a “National Day of Prayer for All Americans Affected by the Coronavirus Pandemic and for our National Response Efforts” on March 15 – which Laser condemned as an ineffective and inappropriate response by the president. Several other politicians across the country would also promote prayers over effective health policy to combat the pandemic.
Around the same time, Jerry Falwell Jr., then president of the evangelical Liberty University in Virginia, made headlines by downplaying the virus and bucking the trend of most colleges by encouraging his students to return to campus after spring break. Falwell’s attitude foreshadowed the response of many religious extremists who would insist religious freedom gives them the right to ignore public health orders and continue to host worship services and other religious gatherings as usual. On March 30, police in Tampa, Fla., arrested a pastor for ignoring health orders and continuing with church services in “reckless disregard for human life,” and police in Lakewood, N.J., arrested two men for hosting a gathering of 35 people for Talmudic studies at an Orthodox Jewish school.
By the month’s end, AU had written to state officials in Kansas, Michigan and New Mexico, explaining that they should not grant special privileges to houses of worship by exempting them from gathering limits in public health orders. And on March 31, AU filed the first of what would become dozens of friend-of-the-court briefs explaining to a court – in this case the Texas Supreme Court – that it is not only permissible for officials to include houses of worship and religious services in temporary bans of large, in-person gatherings, but it would be unconstitutional to grant religious exemptions.
In April, AU’s Public Policy team contacted the governors of Arkansas and Connecticut, urging them to end the religious exemptions in their orders, and AU’s Legal team filed six amicus briefs in COVID-related religious exemption cases in California, Kansas, Kentucky, Texas and Virginia.
Following AU’s March letter, Kansas Gov. Laura Kelly began treating religious and secular gatherings equally in her public health orders – which immediately were challenged in court. The U.S. District Court in Kansas became the first court to rule against a statewide order when it blocked Kelly from including religious services in temporary limits on large gatherings. The vast majority of courts before and since have ruled that officials can limit religious services similarly to secular gatherings.
Religious extremists continued to defy the advice of public health experts, especially as the Easter holiday approached on April 12. Trump fanned the flames, announcing that he was pondering whether it was possible to relax social distancing guidelines specifically for Easter services and that he had told advisers, “maybe we could allow special [exemptions] for churches.”
A few days after Easter, Attorney General William Barr issued guidance that threatened to go after states if he thought their COVID-19 orders showed animus toward religion, but he didn’t go so far as to say states could not limit religious gatherings alongside secular gatherings.
As the Trump administration began implementing the CARES Act COVID-relief package that was passed by Congress at the end of March, Americans United flagged areas in which the administration was undermining church–state separation. Under the law’s Paycheck Protection Program, small businesses and nonprofits were eligible for federal loans to cover payroll expenses. The loans would be largely forgiven, so they were essentially government grants. Since houses of worship were included in the program, federal dollars ended up subsidizing clergy salaries for the first time in U.S. history.
Also, Education Secretary Betsy DeVos decided to exploit the pandemic to prop up her school privatization agenda. Rather than fully support struggling public schools, DeVos announced plans to divert up to $180 million of the money Congress had earmarked for education assistance to pay for educational services at private schools or online schools or companies.
AU’s Legal Department filed more amicus briefs in COVID-related cases during the month of May than it had during any other month of the pandemic so far. Fourteen briefs were filed in cases in California, Illinois, Kentucky, Louisiana, Maine, Maryland, New Jersey, New Mexico and Virginia – all arguing in support of public health orders. AU also wrote to the governors of Indiana, Iowa and Tennessee, urging them to stop granting religious exemptions to public health orders.
On May 22, Trump continued pandering to his base of conservative evangelical Christians by threatening to override governors and force them to allow houses of worship to resume in-person services. As Laser told Politico, Trump didn’t have that authority. His statements only served to “mislead people and embolden people to defy important public safety orders and put everyone at risk,” she said.
News also surfaced that the Trump administration was interfering with the Centers for Disease Control and Prevention’s attempts to issue science-based guidance to houses of worship. After a May 19 CDC report that outlined how religious gatherings operated as COVID-19 “super-spreader” events, the CDC reportedly planned to recommend that houses of worship continue to hold online or drive-in services or limit in-person attendance. Fearing that such advice would alienate Trump’s religious extremist supporters, administration officials reportedly forced the CDC to water down the guidance and remove those recommendations, as well as advice that houses of worship limit singing and sharing worship materials, according to news reports.
At the end of the month, the U.S. Supreme Court weighed in on the issue of whether states could limit the size of religious gatherings for the first (but not the last) time. In a 5-4 decision, the court ruled that California’s public health order could stand because it treated houses of worship the same or better than comparable secular entities. Chief Justice John Roberts joined the court’s four liberal justices and wrote the opinion.
By June, the initial influx of cases challenging public health orders had plateaued somewhat in the wake of the U.S. Supreme Court decision and as some states eased gathering limits in response to temporary drops in coronavirus cases. AU filed four amicus briefs in COVID-19 public health order cases in June, in California, Louisiana, Maryland and New Jersey.
Meanwhile, state legislators in Pennsylvania and North Carolina introduced bills that would prevent governors from limiting gatherings at houses of worship during a pandemic. As AU State Policy Counsel Nik Nartowicz noted in a letter to Pennsylvania legislators urging them to oppose the Keystone State’s bill, “It would single out religious gatherings for preferential treatment, putting public health at risk and violating both the U.S. and Pennsylvania Constitutions.”
Attention turned to the Paycheck Protection Program (PPP) in July after the Trump administration released initial, though incomplete, data on recipients of the funds meant to help small businesses keep workers employed. In addition to confirming AU’s initial concerns that billions in taxpayer money would fund clergy salaries, the data revealed billions more went to private, mostly religious schools as well. AU’s Public Policy team analyzed the data and released an extensive report detailing how private schools had pulled in as much as $6.47 billion in PPP money. In fact, private schools often received more COVID relief money per student than public schools, even though public schools educate 90 percent of American schoolchildren.
But this windfall for private schools wasn’t enough for Trump and DeVos. They began to threaten to divert more public funding to private schools if public schools didn’t fully reopen for in-person learning in the fall.
The U.S. Supreme Court once again refused to block a state’s public health orders from applying to religious gatherings, this time in Nevada. AU’s Legal team filed two amicus briefs in similar cases in July, in California and Maine.
It was a fairly quiet month in terms of AU’s coronavirus-related work. One amicus brief in a COVID-related case was filed, this time in Colorado. There was additional good news from courts when, on Aug. 22, a federal judge blocked DeVos’ attempt to divert some of the CARES Act pandemic relief funds to private schools. In the bill, Congress had allocated a portion of federal aid to private schools based on the number of disadvantaged children they served. DeVos tried to alter the formula to direct the money to private schools based on the total number of students they enrolled, regardless of whether those students were disadvantaged. Much more taxpayer money would have flowed to private schools – at the expense of public schools and the disadvantaged children the money was meant to help.
Religious freedom was dealt a blow on Sept. 18 when Justice Ruth Bader Ginsburg died. Not only had Ginsburg been a stalwart defender of church-state separation throughout her career, but she was a crucial vote in the Supreme Court’s two 5-4 rulings upholding state public health orders as they applied to religious gatherings. When Trump nominated Amy Coney Barrett to fill Ginsburg’s seat on the court, Americans United opposed her nomination because her record indicated she would not protect the constitutional principle of religious freedom as the right to believe, or not, as you choose, as long as you don’t harm others. One of several examples AU pointed to was Barrett joining an opinion of the 7th U.S. Circuit Court of Appeals that allowed Illinois to exempt religious services from its public health order.
As COVID-19 cases began to climb again, states began to tighten limitations on gatherings, and people grew tired of more than six months of living with social distancing, masks and other pandemic-related restrictions. AU saw religious exemption cases tick up again. After only filing two amicus briefs in September, AU’s Legal team filed five briefs in October in cases in Colorado and New York.
Americans United attorneys filed seven amicus briefs in COVID-19 cases in November; three were before the U.S. Supreme Court in California and New York cases. Unfortunately, the high court, now with Barrett on the bench to form an ultra-conservative majority, for the first time blocked a state from enforcing its public health restrictions on religious gatherings. The 5-4 ruling in a pair of New York cases came down on Thanksgiving Eve; this time, Roberts was in the minority.
“The Supreme Court’s order misuses religious freedom and endangers the public health of everyone in New York,” AU’s Laser said. “COVID-19 doesn’t discriminate between religious and secular gatherings; on numerous occasions, infections at houses of worship have led to major outbreaks in surrounding communities.”
Trump, who embraced pseudo-scientific responses to the pandemic and often attacked leading experts such as Dr. Anthony Fauci, was defeated by Joe Biden in the presidential election. Biden vowed to return to a science-based response to the pandemic.
Several more cases involving requests for religious exemptions from COVID-19 orders appeared on the Supreme Court’s plate, but in December the court declined to issue any substantive rulings in them. Two cases, from Colorado and New Jersey, were sent back to lower courts for further consideration in light of the court’s November ruling in the New York cases. And in the case of a private religious school requesting an exemption from Kentucky Gov. Andy Beshear’s order that temporarily prevented schools in the state from having in-person classes, the court delayed acting on it long enough that the order was about to expire, and the issue was moot.
The start of 2021 brought more houses of worship asking the Supreme Court for religious exemptions from state public health orders. AU filed amicus briefs in three such cases from California.
Also, with many state legislatures returning to session in January, Americans United’s Public Policy team began tracking bills that would give houses of worship special treatment by allowing them to have religious gatherings even when comparable secular gatherings are restricted. AU has counted more than 60 such bills in more than two dozen states.
The U.S. Supreme Court again ruled in favor of houses of worship seeking religious exemptions in three more cases, all from California. “Once again the Supreme Court has misconstrued religious freedom to mean religious privilege and placed the health of the American people in jeopardy with an order that allows houses of worship to evade sensible public safety regulations curbing large gatherings during a pandemic,” said Laser.
AU’s Legal team continued to offer amicus briefs in COVID-19 cases; two had been filed in March as of Church & State’s press time. Of note, one of the cases involved a private religious school seeking an exemption from Oregon Gov. Kate Brown’s order that temporarily placed limits on in-person learning at all schools in the state – public and private alike.
And so, here we are. As this issue of Church & State was going to press, the U.S. had surpassed 29 million case of COVID-19, and more than 525,000 Americans had died. As President Biden noted in his March 11 prime time address to the nation, that’s more deaths than in World War I, World War II, the Vietnam War and the Sept. 11, 2001, terror attacks combined. But there’s now a more hopeful number to add to the tally: More than 33 million Americans had been vaccinated against the virus.
AU’s Laser noted that during the past year, AU hosted its first-ever National Advocacy Summit, and the Outreach and Engagement team unveiled a new Youth Organizing Fellowship and new AU Action Network.
In addition, AU’s Legal Department filed 47 friend-of-the-court briefs related to exemptions from COVID-19 public safety orders. AU’s Public Policy team wrote a 10-point agenda to reclaim religious freedom that was shared with the Biden-Harris administration. The Communications team secured AU comment in several prominent media outlets, including the Associated Press, The Washington Post, the San Francisco Chronicle, Religion News Service, Bloomberg News and others. At the same time, AU’s Development Department, along with the Finance and Administration departments, have kept AU running smoothly.
Observed Laser, “This year has shown me that when it comes to AU, everything is possible – even if over Zoom.”