Coronavirus vs. freedom of religion: Can stay-at-home orders keep you from church?
Churches across the country — from California to Kansas — have continued to hold public, in-person services despite stay-at-home orders issued by state and local officials hoping to slow the spread of the coronavirus.
Pastors in Florida and Louisiana are facing criminal charges for violating those orders, The Hill reported. In Lodi, California, one landlord went so far as to change the locks to keep parishioners from gathering at Cross Culture Christian Center, according to McClatchy News.
“We do believe that this right is protected by the First Amendment and should be considered essential,” Cross Culture’s pastor, Jon Duncan, told KTXL.
The U.S. Constitution guarantees free exercise of religion under the First Amendment, but most legal experts agree it’s not without restrictions.
“All constitutional rights are limited in some respect,” Kathleen Hoke told McClatchy News.
Hoke is a professor at the University of Maryland Carey School of Law and director of the Network for Public Health Law, Eastern Region. Freedom of religion under the First Amendment, she said, primarily protects religious organizations from being treated differently.
“Here, we absolutely do not have this,” she said of stay-at-home orders. “We have the states treating all organizations the same.”
When instituting these types of restrictive measures on First Amendment liberties, Hoke said the government must do two things: possess a “compelling interest” and ensure the law is “narrowly tailored.”
“I don’t think anyone could question that there is a compelling purpose right now,” she told McClatchy. “We are in a global pandemic.”
“Narrowly tailored” means by the least-restrictive means possible.
If states were preventing religious leaders from streaming services online during the pandemic, that might be problematic, Hoke said. But most of these orders have been “narrowly tailored to address a particular ill,” she said.
Dean R. Broyles — an attorney who runs the conservative National Center for Law and Policy — would disagree.
Following its run-ins with police over California’s stay-at-home order, Cross Culture Christian Center hired Boyles to represent them, the Los Angeles Times reported. He has has repeatedly argued city officials violated his client’s First Amendment rights.
In a blog post published March 25 in response to California Gov. Gavin Newsom’s emergency order, Boyles questioned just how “narrowly tailored” the decision was to shut down religious gatherings.
“The government here appears to be trying using a sledgehammer to kill a mosquito,” he said “A sledgehammer that is not only undermining religious freedom, but is doing great harm to our society and economy.”
Boyles and other conservative Christian voices have pushed for states to exempt religious organizations from stay-at-home orders as an “essential” service.
Several states already have, including Arkansas, Michigan and New Mexico.
In Kansas, Republican legislators walked back the governor’s order limiting religious gatherings on Thursday, leaving people “scrambling to figure out what would be allowed and not allowed” ahead of Easter Sunday, the Kansas City Star reported.
Other states have broad exemptions and definitions of essential services combined with more limiting public health orders, making it difficult to say whether church gatherings are permitted.
But Rachel Laser, president and CEO of Americans United for Separation of Church and State, said it’s those exemptions for religious organizations that don’t hold up under the Constitution.
“What we know to be true is that the Constitution not only permits these government officials to include these religious gatherings in their ban — but it requires them to,” she told McClatchy News.
Laser pointed to a second clause in the First Amendment pertaining to religion: the non-establishment clause.
“The (non-establishment) clause says that where lives are at risk, you aren’t permitted to grant special treatment or special exemptions for religious institutions,” Laser told McClatchy.
She also agreed governments possess a compelling interest in instituting such bans.
“Without a vaccine or cure there is no other solution available than to temporarily halt in-person gatherings — including religious ones,” she said.
