Worship, Constitutional Rights, and National Emergencies: Recent Rulings And The Church In COVID-19

​Legal Foundation: As we have been looking at resuming gathering together for worship, I came across a helpful memorandum from The Liberty Counsel memorandum regarding reopening church (found here: https://lc.org/PDFs/Memo-ReOpen-Church.pdf). I will provide a brief summary along with the pages I reference for your information. Since we live in an age where people accuse President Trump of advocating that people inject themselves with Lysol when he clearly didn't, I will add the mandatory caveat that I am not a lawyer and this does not constitute legal advice. These are simply my takeaways from my research and offer them to fellow pastors and whoever is interested as this pertains to churches gathering together in a time of national emergency. ​

• Precedent cases. There are three significant cases that provide legal precedent for the issue at hand. 
  • The first is Jacobson v. Massachusetts, 197 U.S. 11 (1905) which asserts that even in times of crisis or disease, the 1st amendment does not evaporate (page 2). 
  • The second is Fire Christian Center, Inc. v Fischer which finds that permitting churches to host and people from attending a worship service on Easter Sunday was unconstitutional. The basis for this finding was people were allowed to park in the parking lot of “essential businesses” and therefore that same standard had to be applied to the church (page 3)
  • The third case is First Baptist Church v. Kelly in which the court found that that no church may be treated differently than non-religious or commercial gatherings and banning worship services is unconstitutional (pp 4-5)
• Key quotes from court rulings (these are direct quotes from the rulings): 
  • Fire Christian Center, Inc. v Fischer (Court opinion document can be found at http://lc.org/042920OnFireOpinion.pdf):
    • “it is not the role of [the government] to tell religious believers what is and isn’t important to their religion.” (MY COMMENT: This is in the context of the government considering “online gatherings” sufficient) (page 3). 
    • Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs – including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.” (Court Opinion Document page 12)
    • Louisville might suggest that On Fire members could participate in an online service and thus satisfy their longing for communal celebration. But some members may not have access to online resources. And even if they all did, the Free Exercise Clause protects their right to worship as their conscience commands them. It is not the role of a court to tell religious believers what is and isn’t important to their religion, so long as their belief in the religious importance is sincere. The Free Exercise clause protects sincerely held religious beliefs that are at times not “acceptable, logical, consistent, or comprehensible to others.” (COD page 13)
    • Instead, just as many religions reinforce their faith and their bonds with the faithful through religious assemblies, many Christians take comfort and draw strength from Christ’s promise that “where two or three are gathered together in My name, there am I in the midst of them.” Indeed, as On Fire points out, “the Greek word translated ‘church’ in our English versions of the Christian scriptures is the word ‘ekklesia,’ which literally means ‘assembly.’” (COD page 14)
    • It is true that On Fire’s church members could believe in everything Easter teaches them from their homes on Sunday. Soo too could the Pilgrims before they left Europe. But the Pilgrims demanded more than that. And so too does the Free Exercise Clause. It “guarantees the free exercise of religion, not just the right to inward belief.”70 That promise is as important for the minister as for those ministered to, as vital to the shepherd as to the sheep. And it is as necessary now as when the Mayflower met Plymouth Rock. (COD page 15)
    • Finally, nothing in this legal analysis should be read to imply that the rules of the road in constitutional law remain rigidly fixed in the time of a national emergency. We know that from Jacobson v. Massachusetts. The COVID-19 pandemic has upended every aspect of our lives: how we work, how we live, how we celebrate, and how we mourn. We worry about our loved ones and our nation. We have made tremendous sacrifices. And the Constitution is not “a suicide pact.” But even under Jacobson, constitutional rights still exist. Among them is the freedom to worship as we choose. (COD page 15)
    • Conversely, because Louisville allows other, non-religious and no-more-essential parking and drive-throughs, there is not yet any evidence in the record that stopping Louisville from enforcing its unconstitutional order will do it any harm. (COD page 18)
    • In considering whether a TRO is in the public interest, “a court must at the very least weigh the potential injury to the public health when it considers enjoining state officers from enforcing emergency public health laws.”84 The Court has considered that question above. With the limited record before the Court, it is unclear how a gathering of cars in a parking lot is a danger to public health. Admittedly, the record as it stands is sparse and one-sided. But in that limited record, there isn’t any evidence that On Fire’s parking lot will prove more dangerous than the countless other parking lots that remain open. Nor is there any evidence that churches are less essential than every other business that is currently allowed to be open – liquor stores among them. (COD page 18)
    • The Christians of On Fire, however, owe no one an explanation for why they will gather together this Easter Sunday to celebrate what they believe to be a miracle and a mystery. True, they can attempt to explain it. True, they can try to teach. But to the nonbeliever, the Passion of Jesus – the betrayals, the torture, the state-sponsored murder of God’s only Son, and the empty tomb on the third day – makes no sense at all. And even to the believer, or at least to some of them, it can be incomprehensible as well. But for the men and women of On Fire, Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord Case 3:20-cv-00264-JRW Document 6 Filed 04/11/20 Page 19 of 20 PageID #: 80 20 is the reason they believe He was and is there for us. For them, for all believers, “it isn’t a matter of reason; finally, it’s a matter of love.” (COD page 19-20)
  • First Baptist Church v. Kelly (Court Opinion Document can be found at http://lc.org/042920FirstBaptistTRO.pdf):
    • In addition to neutrality, the Free Exercise Clause requires that “laws burdening religious practice must be of general applicability.” Lukumi, 508 U.S. at 542. “The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.” Id. at 543. A law is underinclusive, and thus not generally applicable, when it fails to prohibit secular activity that endangers the same interests to a similar or greater degree than the prohibited religious conduct. (COD page 13)
    • EO 20-18 and EO 20-25 both state that their prohibitions against mass gatherings apply to “churches or other religious facilities.” (EO 20-18 ¶1.b; EO 20-25 ¶1.b). Both orders expressly state in their respective paragraphs 1.c that “[w]ith regard to churches or other religious services or activities, this order prohibits gatherings of more than ten congregants or parishioners in the same building or confined or enclosed space [with exceptions for additional individuals conducting the service].” These provisions show that these executive orders expressly target religious gatherings on a broad scale and are, therefore, not facially neutral. (COD page 13-14)
    • It appears to be the only essential function whose core purpose – association for the purpose of worship – had been basically eliminated. For example, the secular facilities that are still exempt from the mass gathering prohibition or that are given more lenient treatment, despite the apparent likelihood they will involve mass gatherings, include airports, childcare locations, hotels, food pantries and shelters, detoxification centers, retail establishments (subject to the distancing and “essential function” purpose noted above), retail food establishments, public transportation, job centers, office spaces used for essential functions, and the apparently broad category of “manufacturing, processing, distribution, and production facilities.” (COD page 14)
    • Defendant has not argued that mass gatherings at churches pose unique health risks that do not arise in mass gatherings at airports, offices, and production facilities. Yet the exemption for religious activities has been eliminated while it remains for a multitude of activities that appear comparable in terms of health risks. Based on the record now before the court, the most reasonable inference from this disparate treatment is that the essential function of religious activity was targeted for stricter treatment due to the nature of the activity involved, rather than because such gatherings pose unique health risks that mass gatherings at commercial and other facilities do not, or because the risks at religious gatherings uniquely cannot be adequately mitigated with safety protocols. It is also an arbitrary distinction, in the sense that the disparity has been imposed without any apparent explanation for the differing treatment of religious gatherings. These facts undermine Defendant’s contentions and lead the court to conclude that EO 20-18 and EO 20-25 are not neutral laws of general applicability. Instead, they restrict religious practice while failing to “prohibit secular activity that endangers the same interests to a similar or greater degree.” As such, the restriction is likely subject to strict scrutiny, and can be sustained only if it is narrowly tailored to further the compelling state interest in slowing or halting the spread of COVID-19. (COD page 15). 
    • To obtain a TRO, Plaintiffs must show they will suffer irreparable harm in the absence of the order. Winter, 555 U.S. at 20. The Supreme Court has recognized that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Plaintiffs have alleged that without a TRO, they will be prevented from gathering for worship at their churches this Sunday, April 19, 2020 and thereafter. The court concludes Plaintiffs have made a sufficient showing of irreparable harm. (COD page 16)
    • Lastly, to obtain a TRO, Plaintiffs must show that the granting of a TRO is in the public interest. Winter, 555 U.S. at 20. The public interest is furthered by preventing the violation of a party’s constitutional rights. Free the Nipple, 916 F.3d at 807. Additionally, for the reasons previously mentioned, the record shows that allowing Plaintiffs to gather for worship with the safety protocols similar to those applicable to other essential function mass gatherings is consistent with the interest in protecting public health. (COD page 17)
  • My Conclusions:
    • There is a significant legal precedent and standard that makes it unconstitutional and illegal for the government to place restrictions upon the church that are not equally applied to all other institutions, businesses and gatherings. 
    • There is an inherent right to practice our faith according to our conscience without government interference. The right to worship as we choose is not subject to national emergency. 
    • The government cannot interfere with sincerely held convictions concerning worship. Sincerely held religious beliefs are protected by the free exercise clause.
    • Citizens need to know their rights, the limits of the government in limiting those rights, and must be active in exercising and fighting for those rights. As a side note, this applies to people of all different faith traditions. This is not just a Christian issue. This is an issue of the freedom of religion that is fundamental to our way of life and secured by our constitution.