Should Your Church Comply With New COVID-19 Orders? Perhaps This Memo Will Help.

Editor’s note: The following memo was written by an elder of a mid-Atlantic church to his fellow elders. The author, formerly a law clerk for a Supreme Court justice, presently works as an attorney and has graciously agreed to let us reprint it here.

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To:         The Elders

Re:         Framework for Compliance with New COVID-19 Orders

OVERVIEW

Last weekend, the Governor announced during a press conference that he would be imposing new restrictions on gatherings in our State to reduce the spread of COVID-19. Initially, he did not clearly specify whether or how these restrictions would apply to churches, prompting many people to wonder how our church would respond. Praise God, the text of the order (once released) made clear that religious services could continue meeting without numerical limitations for the time being, as long as we continue implementing our existing safety protocols. But the initial uncertainty was a good reminder that we are not out of the woods yet on COVID-19—or on new COVID-19 restrictions.

Given that the Governor or the City may attempt to adopt additional restrictions in the future, it seems wise to consider in advance how we will decide whether to comply with them. This memorandum has three parts. Part I outlines a general, two-pronged framework for deciding when Christians may or should submit to a law or order. Part II applies the first prong of that framework to explain how we might evaluate whether to comply with a COVID-19 order in light of biblical principles. Part III applies the second prong of that framework to explain how we might evaluate whether to comply with a COVID-19 order in light of legal principles.

DISCUSSION

Part I: Biblical Submission and Its Limits.

Romans 13:1–7, 1 Peter 2:13–17, and other passages make submission to governing officials the biblical norm, and noncompliance the exception. Nevertheless, there are at least two instances in which noncompliance with a law or order is biblically justified: (1) when complying with a law or order would be contrary to the will of God as revealed in Scripture, and (2) when the law or order is itself legally invalid. More specifically:

• When compliance with a law or order would violate biblical commands, principles, or beliefs, compliance is not a biblical option. Christians “must obey God rather than men” (Acts 5:29). Accordingly, the framework for deciding whether to comply with a law or order on biblical grounds is relatively straightforward:
  • Which biblical commands, principles, and beliefs are implicated by the law or order?
  • Is it possible (within reason) for the Christian to comply with this law or order in a manner that comports with all relevant biblical commands, principles, and convictions?
    • If so, the Christian should comply. (If he disagrees with the law or order, he may consider advocating that it be amended or repealed.)
    • If not, then the Christian should not comply, but only to the extent that noncompliance is required by Scripture. (If compliance with other aspects of the law or order is permitted by Scripture, the Christian should comply with those aspects.)
  • When a law or order is legally invalid—for example, because it is unconstitutional, contrary to a statute, preempted, or outside the scope of the government’s God-given authority—compliance is not required because the law or order is not the “governing authorit[y]” under our legal system, notwithstanding what the person who adopted the invalid law or order might say. 13:1; see Marbury v. Madison, 5 U.S. 137, 163 (1803) (“The government of the United States has been emphatically termed a government of laws, and not of men.”). Nevertheless, compliance with the invalid law or order is permitted as a matter of prudence if the Christian so desires. And Christians should also consider whether to seek official recognition of their position that the law or order is unlawful. The decision-making process is accordingly more complicated:
    • Is compliance with the law or order at issue wise in light of all relevant considerations?
      • If so, it likely doesn’t matter whether the law or order is legally valid. The Christian should ordinarily submit to it as a matter of prudence.
      • If not, proceed.
    • Does the Christian believe that the law or order at issue is legally valid?
      • If so, the Christian should comply. (If he disagrees with the law or order, he may consider advocating that it be amended or repealed.)
      • If not, proceed.
    • Has a court or other competent authority already recognized the law or order as legally invalid?
      • If so, the Christian need not comply.
      • If not, proceed.
    • Would it be wise for the Christian to comply with the law or order until a competent authority has decided whether the law or order is invalid (g., in a lawsuit or a new order), in light of considerations such as the Christian’s biblical convictions, the Christian’s witness to the world, the importance of the law or order, the potential penalties for noncompliance, the obviousness of the legal problems, the impacts of the law or order on the Christian, and financial and administrative considerations?
      • If so, the Christian should comply until the law or order has been stayed or determined to be invalid (or is amended or repealed).
      • If not, the Christian need not comply.

For discussion: Do you agree with this general, two-pronged framework? Would you change anything?

Part II: Evaluating COVID-19 Orders Under Scripture.

1. Which biblical commands, principles, and beliefs are implicated by the law or order?

Any COVID-19 order designed to slow the spread of the virus would implicate the biblical principle that God appoints the governing authorities as servants for our good, and gives them the responsibility of protecting and upholding the dignity of human life.  E.g., Gen. 9:5–6; Rom. 13:1–5.

Depending on its terms, a COVID-19 order restricting the size of church gatherings could also implicate our biblical belief that members of local churches are commanded to assemble regularly and to be a corporate display of God’s glory to the world by preaching the gospel and making disciples (See Heb. 10:24–25; see also Matt. 5:16; Matt. 28:18-20; Eph. 3:10; 1 Tim. 4:13; 2 Tim. 4:2). Such an order could also implicate our biblical belief that God the Father sovereignly reigns over creation and is the author of every event that occurs in both time and eternity, see Ps. 135:6; Acts 1:7; Rom. 8:28–30; Rom. 11:36; 1 Cor. 8:6; 1 Cor. 15:24; Eph. 1:3-12, our biblical call to “encourage one another and build one another up,” 1 Thess. 5:11, our biblical call to “address one another in psalms and hymns and spiritual songs,” Eph. 5:19, our biblical belief that baptism should be done by immersion, see Matt. 3:13–17; Matt. 28:18–20; Acts 2:38–41; Acts 8:36–38; Rom. 6:4; Gal. 3:27; 1 Pet. 3:21, our biblical belief that the Lord’s Supper should be taken by believers and administered regularly by each local church, see Matt. 26:26–29; Acts 2:42; 1 Cor. 11:17–34, our biblical call as elders to “shepherd the flock of God,” 1 Pet. 5:2, our biblical belief that ultimately “our citizenship is in heaven,” Phil. 3:20, and potentially even parents’ biblical duty to patiently lead their children in the ways of Christ, see Exod. 20:12; Deut. 6:4–9; Ps. 78; Prov. 6:20–22; Prov. 22:6; Prov. 23:13–14; Prov. 29:15–17; Luke 17:1–2; Eph. 6:1–4; Col. 3:20–21. Many of these beliefs are set forth in our church’s Statement of Faith, and this list is merely illustrative—it is by no means intended to be comprehensive.

2. Is it possible (within reason) for the Christian to comply with this law or order in a manner that comports with all relevant biblical commands, principles, and convictions?

The answer to this question will depend on the terms and scope of the COVID-19 order and the exigency of the circumstances justifying it.

Discerning whether a COVID-19 prohibition on gathering violates biblical commands requires prayerful judgment calls. On the one hand, the biblical commands and beliefs listed above clearly establish a normal pattern and practice for the believer that should not be set aside lightly. On the other hand, none of the commands and beliefs listed above categorically requires that it be observed in-person, indoors, every week, by every member of the church body, without delay or deferral or flexibility. As elders of this church, we must account for all relevant circumstances as they exist at the time we are being asked to comply with the COVID-19 order, ignore inaccurate and irrelevant facts and opinions, and then prayerfully make a judgment call as to whether the order goes “too far,” such that obedience to the State becomes disobedience to God. Ultimately, I believe that the bottom-line question is this: Do the relevant circumstances as we know them justify the departures from biblical patterns and practices that the COVID-19 order is demanding?

In conducting this analysis, I recommend that we focus in particular on whether our COVID-19 safety protocols have been effective in reducing the transmission of the virus, whether our congregation has been complying with those protocols, and whether our area is experiencing such a significant spike in the number of COVID-19 cases in comparison to previous weeks that meeting in person seems unwise. We should give appropriate weight to the scientific data and expertise of health authorities, but at the same time, we should avoid abdicating our own responsibility to weigh that scientific information against the commands of Scripture, the sovereignty of God, and the reality of eternity—ultimately, the question whether we should depart from the biblical norm is a spiritual and moral question, not a scientific one.

I would also recommend against making decisions based on the fact that we complied with the orders issued earlier in the pandemic, when much about the nature of the virus was uncertain and we lacked the COVID-19 safety protocols that we now have implemented. At this point, we have much more information about the virus and about how to mitigate the risk of transmission, so I personally feel much more comfortable and equipped to independently evaluate whether a COVID-19 order goes too far. Finally, because we are talking here about biblical principles, we should avoid making decisions based on political considerations or public opinions as such, regardless of whether those factors weigh for or against compliance with a COVID-19 order.

For discussion:

• Do you agree with the approach articulated above? Would you change anything?
• Suppose that the Governor’s recent order had prevented us from gathering in person with more than 25 people present, punishable as a misdemeanor with up to 12 months’ jail time and up to a $2500 fine. Suppose further that the State’s health authorities believed that the State’s case count per capita and positivity rate remained “relatively low,” that cases in the State were not rising as rapidly as elsewhere, that hospital capacity was “stable,” and that the only “spike” in the number of diagnosed COVID-19 cases in the State was on the opposite side of the State. Finally, suppose that our area was also averaging 15–17 cases per 100,000 people, which is on the lower end of the scale, and that this figure was not significantly different from the levels that existed when we last met in person (with safety protocols in place). Under those circumstances, should we have limited our gathering to 25 people under this framework? Is there more information you would want to know?

Part III: Evaluating the Legal Validity of COVID-19 Orders. 

1. Is compliance with the law or order at issue wise in light of all relevant considerations?

The answer to this question will depend on the same types of facts and circumstances identified above. If our area is experiencing a surge in COVID-19 cases and we think that a livestream-only service is wise and consistent with Scripture, it matters little whether a COVID‑19 order is legally valid. There is also something to be said for deferring to the governing authorities when possible, and for avoiding needless tensions when the restrictions are tolerable. We’re not out to pick a fight! (See Matt. 17:24–27.)

That said, when we are deciding whether to voluntarily adopt new restrictions as elders on behalf of the church—whether in response to a new COVID-19 order or on our own initiative—we should bear in mind that cancelling services and events prevents individuals from making their own decisions about attendance based on their own consciences and health circumstances. If, for example, we decide to continue with an in-person Sunday morning service, individuals with concerns about COVID-19 or legal compliance may still decide to stay home and use our livestream, which is by no means a full substitute for meeting together but still provides some spiritual edification. By contrast, if we decide to do a livestream-only service, members who would have desired to gather in person will not be able to do so. Who knows what opportunities for discipleship, confession, encouragement, exhortation, or prayer would be missed? Thus, speaking only for myself, it would take a significant surge in COVID-19 cases in our area for me to conclude that reverting to livestream-only is wise when it is not legally required.

2. Does the Christian believe that the law or order at issue is legally valid?

Although protecting the public health falls within the scope of the government’s God-given authority, our Nation has adopted laws limiting the government’s ability to infringe on the free exercise of religion, even when the government is otherwise acting within its authority. In addition to the Free Exercise Clause of the First Amendment to the U.S. Constitution—which at a minimum protects religious observers against unequal treatment and against laws that impose special disabilities based on religious status—see Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020)—some state laws provide additional protections for religious exercise. For example, Virginia’s analogue to the federal government’s Religious Freedom Restoration Act (“RFRA”) provides that no Virginia governmental entity or official “shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability unless it demonstrates that application of the burden to the person is (i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that compelling governmental interest,” Va. Code § 57-2.02(B). Violations of this statute can be raised “as a claim or defense in any judicial or administrative proceeding,” Id. § 57-2.02(D).

Although I cannot provide legal advice here and do not intend to do so (an attorney should be consulted to evaluate any particular order), it would seem that virtually any COVID-19 order significantly restricting a church’s gatherings would substantially burden the church members’ exercise of religion. And assuming a substantial burden, the main question under statutes like RFRA would be whether the COVID-19 order is both essential to further a compelling governmental interest and the least restrictive means of doing so. If not, the COVID-19 order would be legally invalid under this type of statute.

3. Has a court or other competent authority already recognized the law or order as legally invalid?

If new COVID-19 restrictions are issued, it will likely take time for a court to decide whether to grant preliminary relief against them, even if a lawsuit is filed immediately.

4. Would it be wise for the Christian to comply with the law or order until a competent authority has decided whether the law or order is invalid (e.g., in a lawsuit or new order), in light of considerations such as the Christian’s biblical convictions, the Christian’s witness to the world, the importance of the law or order, the potential penalties for noncompliance, the obviousness of the legal problems, the impacts of the law or order on the Christian, and financial and administrative considerations?

If we as elders conclude in good conscience that a COVID-19 order is legally invalid, but no competent authority has already confirmed our conclusion, then we must decide whether to comply with it pending such a formal decision. I recommend that we consider a number of factors, including the following:

1. Would compliance with the restriction be inconsistent with Scripture?
2. Would noncompliance with the restriction without seeking a legal determination by a competent authority force others to violate their own consciences?
3. Would noncompliance with the restriction be publicly noticeable, or is the restriction focused on purely internal matters, such as baptism, the Lord’s Supper, singing, or meetings? If noncompliance would be publicly noticed, would it magnify the Name of Christ or potentially tarnish it?
4. Is the restriction at issue a major component of an overall public-health plan, or is it focused on peripheral matters?
5. Is noncompliance likely to result in hefty fines or significant jail time?
6. How disruptive is the restriction in practice?
7. Are the legal problems with the restriction self-evident? Do the problems have a moral component to them that would justify civil disobedience?
8. Do we have the financial and administrative wherewithal to pursue a lawsuit or other avenues of relief?

For discussion:

• Do you agree with the approach articulated above? Would you change anything?
• Suppose the same hypothetical as above. Under those circumstances, should we have limited our gathering to 25 people under this framework?  Is there more information you would want to know?