Churches’ Rights and Responsibilities When Reopening in the Pandemic

Article
05.26.2020

For more resources related to COVID-19, visit our new site: COVID-19 & The Church.

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Having represented churches around the country throughout this pandemic as they stood up to religious discrimination, we have frequently been asked to share our thoughts on what churches’ rights and responsibilities are as they consider reopening. Although much of this discussion focuses on what legal rights and responsibilities churches have as they transition into this new phase, it is critical to keep in mind that just because something is legal to do (even under our Constitution) does not always mean that it is wise to do.

First Liberty Institute has guidance entitled “Recommendations for Reopening Places of Worship” that provides some practical, common-sense suggestions for churches that decide to begin reopening. While some of the suggestions in that guidance may not be legally required, they can help churches assist their members—particularly their most at-risk members—in staying safe from this pandemic.

THREE REQUIREMENTS OF CONSTITUTIONAL STRICT SCRUTINY

Perhaps the question that we get asked the most about churches and COVID-19 is, “I thought religious exercise is protected by the Constitution. How can the government force churches to close?”  The answer to this question, while somewhat complicated, also provides the foundation to understand the rights that churches have as their cities, counties, and states begin to reopen.

When a law would infringe on Americans’ fundamental freedoms, such as the freedom of religious exercise or the freedom of assembly, it is subject to what the law calls “strict scrutiny,” which means that the courts will find a law unconstitutional unless the government can show three things:

  • First, that the law furthers a compelling governmental interest—that is, an interest of the highest order, such as national security or saving the lives of many people.
  • Second, that the law is narrowly tailored to achieve that compelling interest—that is, that it only does what it needs to do to further the interest, and it doesn’t go beyond what is necessary for that purpose.
  • And finally, that the law is the least restrictive means to achieve that interest—that is, if there’s any other way that’s less burdensome on our freedoms, then the law is invalid.

Let’s think a bit further about each of these tests.

COMPELLING INTEREST?

Throughout this pandemic, the compelling interest in requiring places where people gather, such as churches, to close has been “flattening the curve” of infection—that is, slowing the spread of COVID-19 enough so that different groups of people get sick at different times and thereby ensure that everyone doesn’t catch COVID-19 at the same time and flood our hospitals beyond their capacity to help those who need hospitalization. Over time, the government’s compelling interest has shifted to reducing the number of COVID-19 infections in total. Not surprisingly, the courts have not hesitated to find these to be compelling governmental interests, and this is true even of courts that have ultimately held that some of the restrictions on churches are unconstitutional.

There is a bit of pastoral wisdom here. As people who believe in the sanctity of life, we should be deeply concerned about the physical safety of both our church members and our fellow citizens. Whatever you may believe about the precise number of deaths from COVID-19, there is no denying that tens of thousands of our fellow Americans have died from the disease. Many of those who have died are among the most physically vulnerable. This should grieve us. And, if your church is like ours, we have the physically vulnerable within our congregations, whether the elderly member who has faithfully attended for decades or the teenager who has been tragically struck with cancer and is, as a result, immuno-compromised. Loving our neighbors (Mark 12:31) and bearing one another’s burdens (Gal. 6:2) means that, as Christians, we should recognize no less than the secular courts do that concern for the physical safety of others, especially the physically vulnerable, is a compelling interest. For us as believers in Christ, it is the love of Christ that compels us (2 Cor. 5:14).

NARROWLY TAILORED?

Once the government has established that there is a clear, compelling interest, the next question is whether preventing groups of people from gathering in person is narrowly tailored to further that interest.

With regard to this question, the basis for requiring physical separation and closing of gathering places is that transmission models show that the best way to slow the spread of this disease is to limit exposure to others, particularly since the coronavirus can be carried for up to two weeks without showing any symptoms. Examples of COVID-19 restrictions that were not narrowly tailored include the few local and state governments that attempted to ban drive-in church services.

An important aspect of the narrow tailoring test is recognizing that different parts of the country, and even different parts of a state, may face different risks from COVID-19. Not every community is New York City, and not every region, state, or county has been impacted in the same way. The narrow tailoring test requires that the government address a compelling interest not through broad-brush strokes, but rather through rules tailored to the particular circumstances or, in this case, particular community. Stated another way, the question is whether the government has a compelling interest in applying the particular restriction to the particular church in its particular community facing its particular circumstances. So the government may have a stronger case that there is a compelling interest in keeping a church closed in densely-packed New York City, where COVID-19 infection rates have been at their highest and people live in close proximity, than a government in rural North Dakota would have, where there may not have been a single infection of COVID-19 within 100 miles.

We represented churches in Kentucky and Mississippi that had been told they could not permit congregants to come to church and remain in their parked cars spaced more than six feet apart in accordance with the CDC’s guidelines on limiting the transmission of COVID-19, and listen to a sermon either over a short-range radio transmitter or a loudspeaker. We also represented a small church in a rural community that had only 40 cases of COVID-19 in the entire county of 54,000 people that was nonetheless told that it could not meet regardless of what precautions it took to prevent the transmission of the disease. These bans, the courts concluded, were not narrowly tailored because their prohibitions on conduct did not match what was needed to achieve what the courts agreed was a compelling interest of protecting health and lives.

LEAST RESTRICTIVE MEANS?

The third question in this analysis is probably the hardest part of the test for the government to meet: is there any other way that is less infringing on our freedoms that would accomplish the same goal?

So, for example, if simply wearing a mask could slow the spread of COVID-19 as effectively as not being around an infected person, then instead of a ban on gatherings, the government could simply mandate that everyone who goes out wear a mask. Requiring masks would be less burdensome on our freedoms of religious exercise and assembly than banning church gatherings (or any gatherings) altogether, and therefore the bans on gathering would not be permissible.

But if the government imposes restrictions on churches for which an alternative is available that is less burdensome to the church, then the church can get relief from the overly-burdensome restriction—particularly where the government has already recognized the effectiveness of the alternative. For example, if a city tells churches that they cannot give communion because of the fear of spreading COVID-19 by touching the bread, but permits restaurants to distribute food so long as the personnel handling food wear gloves, then permitting communion so long as gloves are worn is a less restrictive means of limiting the spread of infection than banning communion altogether.

Finally, the most important constitutional protection that churches and other places of worship or religious exercise have that movie theaters, restaurants, and sports arenas don’t have is the requirement that the government not treat churches or other religious groups worse than the government treats similarly-situated non-religious groups. As the nation begins reopening, this is a factor that can become an issue when “phased re-openings” permit movie theaters or restaurants to open before churches. If a city, for example, permits movie theaters to open so long as every other seat is left open, then the city must make the same provision for churches.

CHURCHES’ RESPONSIBILITIES IN REOPENING

While we have highlighted above certain situations in which local or state governments went too far in limiting churches’ rights to assembly and the free exercise of religion, many government orders related to COVID-19 pass the above-described tests and are valid exercises of state and local authority to regulate for health, safety, and morals—known as the “police power” of the state and local governments. It may be tempting, when we hear of police officers, as in Greenville, Mississippi, telling pastors that their “rights are suspended” or we hear mayors threaten to “permanently” close houses of worship if their congregations do not follow their COVID-19 edicts, to become skeptical of all government restrictions on religious gatherings at this time. Yet we should remember that government is ordained by God for our good (Rom. 13) and recognize that many restrictions that we’ve seen throughout the country are reasonable and fit within the framework that we set forth above. When that is the case, churches do have a legal and Christian responsibility to abide by those state and local requirements, even if they are inconvenient for a time.

RISKS OF REOPENING

There will undoubtedly come a time when churches can re-open, either because courts overturn some governmental orders as unconstitutional or because government leaders ease those restrictions. When this occurs, it is also important for church leaders to remember that this is not necessarily an invitation to return to normal. Even when churches reopen, there may be a continuing need to take some precautions to protect those in attendance from infection.

As churches think about their responsibilities in reopening, they should also think about their liability if they do not take some common-sense precautions, leading to more infections. Every state in our country recognizes what is known as “tort” liability, and one such tort is known as “negligence,” under which someone could be liable for civil money damages if they act negligently. Negligent conduct occurs when someone fails to act reasonably, meaning they fail to act as a reasonable person would act under the circumstances. This is known as a standard of care. The appropriate standard of care can differ from state to state and community to community. The degree of care one must show and precautions one must take are necessarily facts and circumstances dependent. There is no one size that fits all.

But one thing to which courts and juries look for a standard of care are governmental guidelines. So, for example, if the Centers for Disease Control and Prevention (CDC) or your local or state Department of Health put out guidance on safety precautions for public gatherings, courts may one day look to those guidelines in evaluating whether a church was negligent, meaning whether the church failed to act reasonably. To avoid the risk of civil liability, churches should continue to pay attention to guidelines like those issued by the CDC. The CDC has provided a series of guidelines for community and faith-based organizations to assist them in thinking through some of the issues that they may deal with in limiting the spread of COVID-19.  These guidelines are available here. Your state or local government may also have issued guidelines, which you should also consult. As we noted above, the appropriate standard of care can differ from community to community, and your state may recommend precautions (beyond those that the CDC suggests) based on the unique circumstances present in your state or region.

Again, a bit of pastoral wisdom here. Remember that, as a pastor, you are not an epidemiologist. You are not a medical doctor. You are not a public health official. Neither are we. The public health issues presented by this disease are well beyond your and our expertise. God ordained government for the good of the people. Whatever the shortcomings of the governmental experts who are working hard to address this pandemic, they are far more competent than you or we. Pastoral pontification on health issues is unwise in the same way that governmental pontification on theological issues would be. In both circumstances, it would constitute venturing beyond one’s area of relative competence. And wading into these issues and acting contrary to governmental guidance risks serious legal liability and potential financial ruin for you personally and for your church. Be cautious. And be humble.

A FEW CONCLUDING THOUGHTS

We hope you find this summary of a church’s rights and responsibilities helpful as we begin reopening. You can see that the questions that must be asked are often nuanced and very fact specific—what is permissible in one city may be impermissible in the next city over based on what the cities’ other laws say, what the infection rate is, etc. If you believe that your church is being restricted in impermissible ways or you have questions about what you should be doing to prepare for reopening, we would encourage you to look at the information that First Liberty Institute has provided and reach out with more particular questions by going to www.firstliberty.org and clicking on “Get Legal Help.” And if you have questions about what is wise as churches re-open again, consult with your local public health officials and medical professionals within your congregations.

By:
Justin Butterfield

Justin Butterfield is Deputy General Counsel at First Liberty Institute, where he works to defend and restore religious liberty for all Americans. He previously served as the Senior Advisor for Conscience and Religious Freedom at the U.S. Dep’t of Health and Human Services. Mr. Butterfield is a member of McLean Presbyterian Church in McLean, Virginia.

Matthew T. Martens

Matthew T. Martens is a trial lawyer at a leading international law firm, a graduate of Dallas Theological Seminary, and a 9Marks board member. He regularly litigates religious liberty cases around the country in conjunction with First Liberty Institute.