By Greg Burt
It has now been a month since many churches in California and the rest of the country eliminated in-person meetings and services at the direction of state and local government officials to prevent the spread of the COVID-19 virus. Christians were baffled as recommendations by governors and health officials to shelter in place turned into mandates enforced with threats of fines and arrest. Many assumed the Constitution, especially the First Amendment with its protections for assembly and religious practice, restricted government officials from telling people how and where they can worship?
California Governor Gavin Newsom says he is restricting non-essential group gatherings, including church meetings, under the authority of the California Emergency Services Act. This law gives the Governor “complete authority over all agencies of the state government” if he declares “a state of emergency.” A “state of emergency” is defined as “the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, plant or animal infestation or disease…”
This act also gives the Governor the power to “make, amend, and rescind orders and regulations necessary to carry out the provisions of this chapter. The orders and regulations shall have the force and effect of law… ” and only after the “state of emergency has been terminated,” shall “the orders and regulations” no longer be in effect.
Alliance Defending Freedom, one of the largest religious liberty, pro-bono law firms in the country, issued specific advice to Christian pastors with concerns about the restrictions on their church services. ADF’s Director of the Center for Christian Ministries Ryan Tucker gave the following advice on a video titled, “COVID-19 and Churches.”
We “encourage you to heed the advice of authorities who recommend social distancing and other means necessary to slow the spread of the virus,” Tucker explained. “But we also understand these measures raise important constitutional issues.” Government officials must “respect and protect Americans’ freedoms to live and worship according to their faith,” and “the freedom to exercise our faith is not a second class right.” If government officials limit meeting sizes or meetings altogether, they “must show a compelling interest” for restricting religious freedom and the right to assembly.
“It is conceivable the current situation involving this global pandemic may qualify as a compelling government interest,” Tucker said. But the interest must be pursued with the “least restrictive means.” The question to be asked, “is the government restriction more burdensome than it needs to be to accomplish its objective? … Temporary and evenly applied restrictions may satisfy that standard.” If the restrictions are “unnecessary prolonged” or if a church or Christian ministry is “being targeted by a government body,” that would be a problem, he concluded.
Such a situation did arise recently at a Baptist church in Mississippi that was forbidden by their city from holding a drive-in service in their own parking lot, even though congregants remained in their cars with the windows rolled up. “In Greenville, you can be in your car with the windows rolled down at a drive-in restaurant, but you can’t be in your car with the windows rolled up at a drive-in church service,” said Tucker. “To target churches that way is both nonsensical and unconstitutional.”
The US Department of Justice lent its support to the ADF case against Greenville by issuing a statement of interest, stating “facts alleged in the complaint strongly suggest that the city’s actions target religious conduct. “Government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity,” said Attorney General Bill Barr.
Since California Governor Gavin Newsom issued his stay-at-home declaration, the vast majority of churches throughout the state moved their services online out of respect for government authority and out of a conviction that temporarily suspending in-person meetings obeyed God’s command to “love their neighbor.” Yet stories continue to emerge regarding California pastors who have defied stay-at-home orders in part or in whole, out of a conviction that obeying the biblical admonition to not neglect meeting together, trumps their obligation to “be subject to the governing authorities.”
In Lodi, California, Pastor Jon Duncan of the Cross Culture Christian Center decided to follow the social distancing requirements of the Governor, but not the restrictions on church meetings. He believes he had the constitutional right to meet while still protecting his congregation by mandating hand sanitizing, and asking all elderly, ill, and immune-compromised individuals to stay at home.
“We love people and don’t want anyone to become infected,” stated Pastor Duncan. “With the health and safety standards we have put in place we are a much lower risk of coronavirus spread than Walmart with its narrow aisles and everyone touching everything.”
Local police arrived to keep the church from gathering and the landlord changed the locks, even though a preschool for another church is still allowed to operate on the property. A San Joaquin County public health official issued a specific order preventing Duncan from returning to the property even to record online services or to use the parking lot for a drive-in service.
According to the church’s attorney, Dean Broyles with the National Center for Law and Policy, the church plans to file a federal lawsuit against local and state authorities for violating the church’s First Amendment rights. Broyles also wrote a letter to Governor Newsom reminding him that “the U.S. Constitution is not suspended by a virus,” and that he should follow the example of five other states that have designated churches as “essential services,” or given churches exemptions from the stay-at-home orders.
Attorneys with the Center for American Liberty and Dhillon Law Group filed a First Amendment lawsuit in federal court on April 13, 2020, challenging the Governor’s criminalization of the free exercise of religion. In their suit, Gish v. Newsom, among clients represented Rev. James Moffatt, a pastor in Riverside County, who was fined $1,000 for holding a Palm Sunday service.
“Criminalizing individual participation at a church, synagogue, mosque, temple, or other house of worship clearly violates the First Amendment,” said Harmeet K. Dhillon, Chief Executive Officer for the Center for American Liberty. “The state and localities have granted sweeping exceptions to the shutdown orders for favored businesses and professions, while specifically targeting people of faith and decreeing to religious institutions that it is ‘good enough’ that they be allowed to offer streaming video services. The state does not get to dictate the method of worship to the faithful.”
“Where government picks and chooses who gets exemptions and who doesn’t, according to entirely arbitrary and opaque criteria, this offends the Constitution and causes irreparable harm,” Dhillon stated. “If a Californian is able to go to Costco or the local marijuana shop or liquor store and buy goods in a responsible, socially distanced manner, then he or she must be allowed to practice their faith using the same precautions.”