The Religious Legal Environment For COVID Shutdowns

As a non-attorney observer, I'm nevertheless keenly interested in the legal issues that surround COVID stay-at-home orders, especially as they relate to the natural right to worship. In the US, this is guaranteed in the First Amendment in the Bill of Rights. Public-interest law firms have begun to bring significant actions in current disputes over government efforts to shut down religion. As has been my take here, I think Evangelicals will be the driver in efforts to retain religious freedom. I have no position on what Catholic priests or bishops should or should not do, except to say that when there is toleration, everyone benefits.

From what I've seen, the Liberty Counsel public-interest law firm has had the most consistent results in bringing successful actions. Its orientation is specifically Evangelical. The overall perspective from which it brings cases seems to be that under the First Amendment, government has no authority to regulate religion. Government may regulate physical buildings or certain activities within buildings only insofar as it regulates all other spheres of activity. For instance, it may specify maximum occupancy, but not in any way different from a stadium or theatre.

Liberty Counsel has had successful results in resolving several recent issues I've covered here. For instance, in the case of the Kansas City, MO mayor who required churches to collect the contact information for anyone who stayed in the building longer than ten minutes, the mayor backed down when threatened with a lawsuit.

The Kansas City mayor was savaged nationwide as a “Nazi” the last several days in conservative media, and the government he runs was even threatened with legal action, all for trying to track the spread of the coronavirus.

As it turns out, Lucas stealthily changed the city’s mandate for businesses and churches to record identities and contact information for all visitors staying more than 10 minutes, and made it voluntary. That significant change happened over a quiet weekend and was finalized Monday, without so much as a press release or associated hoopla.

Local jurisdictions have been specifying masimum attendance at church serices, such as the state of Oregon, which in its "guidelines" limits attendance to fewer than 25, including priest, servers, EMs and cantor. The Archdiocese of Portland followed these "guidelines" in its reopening policy, although this will make it all but impossible for most Catholics to attend in-person masses for an indefinite period, making "reopening" a purely token concession from the state.

Liberty Counsel addressed this strategy with Orange County, FL, which includes Orlando.

Orange County Mayor Jerry Demings could face legal action from a religious liberty organization for some of the social distancing guidelines and limits that have been applied to religious services.

The Liberty Counsel said it’s prepared to file a lawsuit if the county doesn’t get rid of the limit on the number of people at in-person religious services.

In the letter, the counsel said the mayor’s limit of 10 people for a church service is not something the mayor has the authority to enforce.

. . . The counsel said churches were most concerned with this line in the order: “in-person, indoor religious services should be limited to no more than ten (10) persons.”

“That frankly is fear-mongering language intimidating people of faith to not go to places of worship,” said Mat Staver, the founder and chairman of Liberty Counsel. “I find that reprehensible.”

The mayor backed down, saying the "guidelines" weren't mandatory.

The mayor responded to the Liberty Counsel Wednesday in a letter shared with News 6.

The executive order, wrote Demings, “only offers guidance to religious entities. It is not my intent to prohibit/restrict or regulate religious institutions or the exercise of religion.”

At least some Catholic dioceses are clearly keeping up with these issues on a very current basis. Unlike the Archdiocese of Portland, the Archdiocese of Cincinnati is careful to avoid limits on attendance in its own guidelines for reopening.

Pastors are to creatively regulate the number of people in the church at one time, space people around the nave to ensure appropriate distancing, and -- if possible -- pre-registor to gauge expected attendance.

While acknowledging a need to adhere to expectations, the archdiocese is not limiting attendance to any specific number, not requiring seating to be limited in any specific way, recognizing pre-registration may or may not be an effective measure, but instead leaving all these issues up to the judgment of individual pastors. This is unlike the situation in Oregon, where both a cathedral and a small chapel are limited to a maximum of 25.

Cincinnati is clearly also aware of the movement among "public health" officials to eliminate or restrict singing in churches. Again, its guidelines suggest temporary measures, although given the overall limits on "reopening" transitions, music may not be a high priority -- but all churches need to be aware that "public health" authorities will have an agenda of eliminating singing from church, more or less permanently. I would imagine that a group like Liberty Counsel will approach this by asking governments to restrict all singing in all applicable environments -- or even, let's face it, cheering or heavy breathing indoors. Will basketball be next?

There are other legal or quasi-legal remedies to the lockdowns. Most prominent in the current news cycle is Elon Musk's reopening of his Fremont, CA auto plant without the permission of the Alameda County "public health" authorities. As of this morning, Alameda County was forced to back down:

"We continue to move closer to an agreed upon safety plan for reopening beyond Minimum Basic Operations by working through steps that Tesla has agreed to adopt," the Alameda County Public Health Department said in a statement.

Nobody's been hauled off in cuffs, and cars keep coming off the production line there.

I think an equivalent case will be the announced intent of California Evangelical churches to reopen on Pentecost, May 31. These are spread among multiple counties, including Riverside County, whose sheriff has already announced he will not enforce "social distancing" orders. Even if pastors or congregants are arrested in, say, Los Angeles County, the disparate enforcement in different counties will make it very difficult for authorities to prosecute and will simply create martyrs.

I think we can only expect the strategy of peaceful civil disobedience, accompanied by more widespread refusal of law enforcement to arrest or cite "violators", will expand as successes become more visible. An additional Michigan sheriff, beyond four that previously announced they would not enforce stay-at-home orders, announced his refusal this morning.