Opposing church closures becomes new religious freedom cause

• By Tom Gjelten/NPR

State and local restrictions on religious gatherings, introduced as measures to prevent the spread of the coronavirus, have emerged as a top religious freedom issue and prompted a flurry of new lawsuits charging that such measures violate the First Amendment or state religious freedom statutes.

The Alliance Defending Freedom, a conservative Christian advocacy organization, filed suit in federal court Thursday against Kansas Governor Laura Kelly, arguing that her statewide shelter-in-place order discriminates against religious institutions.

On Friday, the Becket Fund for Religious Liberty filed an amicus brief in support of a church in New Mexico that is challenging the governor’s order limiting religious gatherings to no more than five people.

Similar lawsuits have been filed in Florida, Mississippi, Kentucky, Virginia, California and Texas.

The cases all involve the tension between the constitutional right of Americans to the free exercise of their religion and the demonstrated need to protect public health.

The Kansas case involves two churches that have continued to hold services in defiance of an order prohibiting “gatherings of more than ten congregants or parishioners in the same building or confined or enclosed space.”

The churches claim they are unfairly targeted, because restaurants and bars are exempted as long as they maintain six feet between tables and bar stools. (In some cases, state or local authorities have held that establishments serving food provide an “essential” service.)

“There is certainly a legitimate religious liberty principle that religious gatherings cannot be treated worse under the law than similar gatherings,” says Holly Hollman, general counsel for the Baptist Joint Committee on Religious Liberty. “This is more complicated, because of the changing nature of the threat that the government is trying to protect against.”

The coronavirus is highly contagious, and people gathered in church may engage in behavior, including singing, that is especially conducive to the spread of the virus. In several instances, outbreaks have been traced to a single religious gathering.

The Trump Administration, which in the past has given strong support to religious freedom arguments brought by conservative groups, this week took the side of a church in Greenville, Mississippi, that had been ordered by the city to halt drive-in services, even as nearby drive-in restaurants were allowed to operate.

In a statement supporting the church, the U.S. Justice Department said, “The City appears to have thereby singled churches out as the only essential service … that may not operate despite following … recommendations regarding social distancing.” The Greenville mayor subsequently lifted the ban on the church’s gatherings.

In the New Mexico case, the church argued that religious institutions should not be subject to more restrictions than those imposed on essential businesses. In an order handed down Friday evening, the court denied the church’s motion. “The public’s interest in limiting the COVID-19 outbreak in the state, a compelling interest, outweighs the right to gather,” the court concluded.

For the moment, the controversy over whether governments can restrict religious gatherings has taken priority over other religious freedom cases, which have more often centered on individuals or groups citing religious beliefs for their opposition to same-sex marriage, LGBTQ rights or artificial contraception.