The Protestant Cases and COVID-19
Jeffrey B. Hammond
The coronavirus pandemic has robbed us all of something. My brother works for the state of Texas, and he still hasn’t returned to his office, having been away for more than a year. My elderly parents caught the virus early this year. Even after recovering, they have limited their trips outside the home. Thus far, however, my immediate family and I have escaped relatively unscathed. My children have had to do much of their schooling via Zoom — not ideal for a junior and senior in high school. My wife (computer science) and I (law) had to finish teaching the spring 2020 semester online after an extended spring break. I can assure you that it is impossible to create the same esprit de corps over a broadcast that otherwise exists in an in-person class.
The virus has let me off easy. It has brutalized many millions of others. From months-long stays in the hospital, to besetting “long-haul” symptoms, to millions of Americans losing their jobs or small businesses, to death, this unseen killer has wrought destruction the full length and breadth of the nation. This virus has acted indiscriminately — as viruses are wont to do — and misery has followed in its path.
America’s churches and other organized religious bodies have also suffered through this pandemic. As spring melted into summer, many churches shuttered, fearing the virus would infect congregants if the congregation assembled together. Churches that did not have any sort of multimedia presence quickly became adept, and then expert, at live-streaming their services over media like Facebook Live and YouTube. As summer ripened into fall, many churches became more comfortable with welcoming the faithful back to their buildings. While parishioners have come back to church, only four in ten American Christians said that they would attend in-person services on Easter. Many churches “hybridized” their worship, with those who felt comfortable assembling at the church building doing so, while others who preferred to hang back at home could view a livestream of the service. “Hybrid” worship services have mirrored hybrid education — with the camera capturing the professor at the lectern and in church what the masked, distanced congregation is doing in the sanctuary.
The trusted researchers at the Pew Research Center conducted a recent poll in which the “clear majority” of respondents favored churches opening their doors again, but only if protocols that all by now are accustomed to — mask wearing, physical distancing, and caps on attendance — can be observed. America wants to get back to church, but it is apprehensive in its return.
The Pew poll makes an interesting sociological point; however, there are deeper lessons to be learned from worship during the pandemic. In the remainder of this blog post, I will discuss the Supreme Court’s main Protestant coronavirus free exercise cases; the newest case of Tandon v. Newsom; and two other prominent churches, Capitol Hill Baptist Church in Washington, D.C. and Grace Community Church in Los Angeles County, who have clashed with their local and state governments over coronavirus worship restrictions, for the proposition that in-person worship is central to the Protestant Christian understanding of devotion to and reverence for God.1In this blog post, I have focused on the “main” Supreme Court cases over the past year involving Protestant churches and have quoted at length from the second South Bay opinion. This is not to minimize the importance of other Free Exercise litigation over the past year, especially Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel of America v. Cuomo. Those cases are vitally important for the propositions that state governments may not “gerrymander” religious bodies so as to impose severe restrictions on them and that the government must treat the indoor exercise of religion the same as other indoor activities in the same physical areas. This, of course, has to do with the number of people allowed indoors for worship compared to the number of people allowed for secular activities in the same areas of the state. Roman Catholic Diocese of Brooklyn was hailed at the time it was handed down for speaking a very strong word on “neutrality” between religious exercise and secular business concerns. The Protestant cases coming out of the Ninth Circuit showed that there were problems applying the principle of Roman Catholic Diocese of Brooklyn all across the country. Of course, there was religious liberty litigation elsewhere in the country. I have chosen, however, to focus on these cases mentioned in the post.
The Protestant Coronavirus Free Exercise Cases
There was a battle in the Supreme Court over the weighty fetters free exercise concerns must bear. State governors and public health authorities tightly restricted in-person worship, claiming that the virus can spread doing that which worship requires — being in close proximity to other people while loudly expelling air (i.e., singing). At the same time, churches labored under in-person worship while certain secular activities like having one’s hair done at a beauty salon or watching a bowling competition were deemed permissible. Churches therefore claimed that in-person worship was being singled out for unfavorable treatment. To be sure, as the main Supreme Court cases involving Protestant churches, including South Bay United Pentecostal Church v. Newsom, Harvest Rock Church, et. al. v. Newsom, Gateway City Church v. Newsom, and Calvary Chapel v. Sisolak have been issued, the restrictions on in-person worship have been loosened and state officials have now allowed churches to gather at their respective buildings for corporate worship.2Becket reports that, as of May 24, 2021, forty-nine of the fifty states have lifted all restrictions on in-person worship, and that Washington State plans to lift all of its restrictions by June 30, 2021. See https://www.becketlaw.org/case/minnesota-churches/ (accessed June 9, 2021). Becket’s statement does need nuance, however, as New York and California, for example, show that they still have some restrictions on in-person worship. For New York, see https://www.governor.ny.gov/sites/default/files/atoms/files/ReligiousandFuneralServicesMasterGuidance.pdf (accessed June 10, 2021 – most restrictions lifted once seventy percent of New Yorkers have received at least one dose of vaccine). On Monday, June 7, 2021, Governor Andrew Cuomo stated that 68.6% of New Yorkers had received at least one dose of the coronavirus vaccine. See https://www.nbcnewyork.com/news/coronavirus/in-about-face-ny-delays-universal-end-to-school-face-mask-mandate/3093133/ (accessed June 10, 2021). For California, see https://covid19.ca.gov/industry-guidance/ (accessed June 10, 2021 – stating, in part, that restrictions on in-person worship will end on June 15, 2021).
However, when these decisions are stripped to their essences, they are really about the standard by which free exercise cases should be evaluated: the standard in Employment Division v. Smith, which forces the free exercise concern (in this case, gathering in the church building) to give way to a “neutral law of general applicability” (restrictions on gathering in the church building or for other similarly situated activities, like public lectures) or the standard announced in Church of Lukumi Babalu Aye v. Hialeah, where the government must remain neutral between the free exercise interest at stake and the secular interest. If the government cannot remain neutral between those interests, it must fulfill the strict scrutiny test: it must articulate a compelling interest, and it must accomplish its interest by the least restrictive means.
The problem with these standards is that which is faced by courts with any case — the prior case’s precedent does not fit “on all fours” with the current case. And thus, one cannot be completely certain which standard should apply. From the perspective of state governments, the Smith standard should prevail because all the government was doing was treating worship services like other activities where people congregate, sit, and listen to a person on a stage (like a public lecture). The analogy, of course, is not entirely apt. Worshippers do not merely listen to a lecture (sermon); they also participate in the service, doing things that are not otherwise illegal, like singing, taking elements of Communion, and praying. And as you will remember, in the Smith case, the Respondents were doing something illegal — ingesting peyote — as part of their cultic practice. The public health orders in the coronavirus decisions were “neutral” in a sense — they applied to all activities of a particular category. But they failed to account for the central place congregational worship had in these believers’ lives.
And congregational worship is, in fact, the paradigm exercise of religion. We would do well to remember that the worship engaged in by the churches involved in the past year’s cases did not involve the unusual cultic practices that the Lukumi case did (the ritualistic slaughter and consumption of chickens). The churches in the past year’s cases wanted to do what they usually did: namely, worship God according to their denominational dictates and idiosyncratic reading of the Bible. These churches wanted to engage in their standard worship. Nevertheless, their argument rings true that they have not been treated neutrally (that is, the same) with respect to other activities in which people encounter each other, like shopping. Justice Gorsuch convincingly makes this point in his statement, along with Justices Alito and Thomas to the South Bay United Pentecostal Church’s application for injunctive relief from California Governor Newsom’s flat prohibition of in-person worship.
I find it interesting that, in the latest iteration of the South Bay case, Chief Justice Roberts tried to strike a conciliatory tone to all sides. He concluded that California’s across-the-board ban on indoor worship had run its course. But he saw the utility in keeping the state’s ban on singing and chanting. The Chief Justice wrote:
[T]he State’s present determination — that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero — appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.
I adhere to the view that the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.” …But the Constitution also entrusts the protection of the people’s rights to the Judiciary — not despite judges being shielded by life tenure…(KAGAN, J., dissenting), but because they are. Deference, though broad, has its limits.3South Bay United Pentecostal Church, et. al. v. Newsom, 592 U.S. ___ (2021) (South Bay II) (concurrence of Roberts, C.J. granting church’s application for injunctive relief in part and denying it in part).
The Chief Justice’s reasoning is thin. He didn’t provide much of a warrant for keeping the ban on singing and chanting other than it would be good to be deferential to the “politically accountable officials” who presumably know better about the dangers of singing indoors. Nevertheless, he thinks that deference to those same “politically accountable” leaders has its limits; and therefore, the total ban on indoor worship had to go.
Capitol Hill Baptist Church
The Capitol Hill Baptist Church in Washington, D.C. has become well known for insisting on in-person worship. Early in the pandemic, the mayor of Washington forbade all in-person worship and would not even let the church participate in outside, appropriately distanced worship. The church had to find space in a sympathetic Baptist church’s property in Virginia in order to gather. Only after suing the District did a federal court allow the church to participate in outside worship in the District. Later, houses of worship in the District were subject to building capacity limits of 25% or 250 worshippers, whichever was less. Recently, the same court that ruled in favor of Capitol Hill Baptist Church ruled in favor of the Roman Catholic Archdiocese of Washington, D.C. and enjoined the enforcement of all percentage and hard number capacity limits.
This church’s plight with the Metropolitan Washington government provides three insights about church/government relations. First, it is peculiar that the mayor did not allow in-person worship for many months after other cities and states started allowing such gatherings, albeit with restrictions like physical distancing, mask wearing, and limits upon building capacity. The problem, of course, with the District’s limitation on Capitol Hill Baptist Church was its comprehensiveness. No one could meet in the church’s building — not even a scaled-down congregation that observed safety protocols. The District’s edict seemed to be an overbroad restriction when sensible compromise was available.
Second, the church had a real, theological basis for rejecting the mayor’s suggested alternative of live-streamed services. The church’s pastor, Dr. Mark Dever, insists that the church meet in one service every Sunday, and not in multiple services as larger churches sometimes do. And the church refused to livestream its services in order to accommodate parishioners through video who might feel more comfortable not gathering with other church members. The District was especially fond of the video option, arguing that live-streamed video of the pastor and the other participants in the church service was equivalent to robust participation by an in-person congregation. The church did not agree. The reason is simple: as one of the Assistant Pastors, Justin Sok said, “A church is a community that gathers regularly,” following the instruction of Hebrews 10:25 (NIV): “[do] not [give] up meeting together, as some are in the habit of doing.”
Dever’s insistence on in-person worship is borne out of a robust ecclesiology: for the church to be the church that authentically worships Jesus Christ, it must physically assemble together and participate in the regular ordinances of worship: singing, praying, reading Scripture, hearing preaching, and receiving the elements of Communion. Just as “no man is an island” (John Donne), no Christian is an island.
It is true that any worship activity can be done by oneself or in a small group. For instance, during the spring of 2020 while my church was not meeting at our church building, my family and I watched the livestream of our Sunday services (in which our minister and other participants in worship led those watching from home), and we took Communion as a family. Many other families in our church did the same. It is not necessarily better or worse for Mark Dever to have rejected the District’s suggested accommodation to the unknown infectiousness and lethality of the virus. It is merely different. More importantly, such a rejection reflects the church’s sincerely held belief that cannot be compromised away. It is certainly a more rigorous and literal understanding of New Testament demands on the local congregation.
Third, Capitol Hill Baptist Church sought to be treated equally as well as other expressive activities that have occurred in the District during the pandemic. During the summer of 2020, the world was riveted by hundreds of thousands of protestors demonstrating in the District against police brutality and other racial injustices. The lasting image of those demonstrations is the phrase “Black Lives Matter” painted in bold, yellow strokes on Pennsylvania Avenue in front of the White House. These demonstrations were not limited by the District’s government. Capitol Hill Baptist did not disapprove of the demonstrations. In fact, the church welcomed the protests as bringing much needed attention to the plight of African-Americans faced with unjust uses of government force that had taken away their freedom and lives. All the church requested was to be treated the same as those who protested on the streets of Washington, seemingly without any restrictions at all. When asked about the difference between non-spaced protestors and spaced church-goers, Mayor Bowser remarked, “‘First Amendment protests and large gatherings are not the same,’ because ‘in the United States of America, people can protest.’”
It is tricky at best to judge another person’s motives, doubly so when there is an actual reason to take a particular course of action. The mayor had good reasons to shut down churches (including Capitol Hill Baptist Church) — at least early on while the District was coming to grips with the consequences of the pandemic. However, her reasons appear to have been pretextual in light of her statement about the summer protests. Nevertheless, in the free exercise landscape created in the aftermath of Smith, Bowser finds herself in good company. Since at least Smith, and likely well before, speech catapulted over religion as America’s “first freedom.” Perhaps we should read Bowser’s preference for the summer demonstrations as acknowledging this reality. Nevertheless, the quote belies the steep uphill climb faced in the moment by the church to be able to achieve what it most desired. While one can argue about the place in a constitutional hierarchy expressive speech should hold (especially speech on a topic so urgent as the equal treatment among races), it is baffling at best, sinister at worst, to see the chief executive of the nation’s capital hold religious exercise in such disrespect.
Grace Community Church
An equally notable example of contentiousness over the right to in-person worship is that of Grace Community Church, pastored by John MacArthur, the famous conservative minister. MacArthur fought hard against Los Angeles County’s shut down orders. From late July of last year, MacArthur held in-person worship, disobeying county shut-down orders. Many congregants went without masks and social distancing. The more that MacArthur pressed, the more that county officials became entrenched in their position. Eventually, MacArthur invited officials to throw him in jail for his intransigence. From the start, MacArthur wanted a full church building.
A flashpoint in MacArthur’s striving with Los Angeles County has been his antipathy, even disdain for even the concept of “religious liberty.” One quote is telling: “You say, ‘Well, isn’t religious freedom important for Christianity? No, it’s meaningless. It doesn’t matter what law governments make or don’t make. They have no effect on the kingdom of God.” Essentially, MacArthur’s argument is that the church should not be begging the state, hat-in-hand, for the privilege of living out one of the church’s main tasks — worshipping the Lord in the corporate assembly. The problem is that refusing to obey the government’s orders means in his case that he refuses to compromise with the government at all for a solution. He apparently views “religious liberty” as a compromise with the local authorities, and an unrestricted worship assembly as an advancement of the kingdom of God. He is willing to disobey what he sees as unjust restrictions on his church. He has held worship inside the church building even when banned entirely by the county authorities. County authorities discussed retaliation against MacArthur, including evicting the church from a parking lot lease that covered many of the church’s parking spots.
Tandon v. Newsom
Finally, we should make brief mention of the latest ruling from the Court, Tandon v. Newsom. In Tandon, the Court upheld an injunction against the California governor forbidding in-person worship inside a private home during the pandemic. The state seemed to stand on fairly solid reasoning for banning in-home assemblies because people will likely be in close quarters and would be prone to communicate the virus to others. The per curiam opinion reasoned that if Californians were allowed to participate in certain secular indoor activities, but not in-home worship, then such a discrepancy would amount to discrimination against the religious practice, violating religious neutrality and causing strict scrutiny to be applied. One popular outlet, Vox, stated that the Tandon decision has made Smith a “dead letter” because it agreed with the dissenters that the ban on in-home worship was a “neutral law of general applicability,” because it applied to all groups of non-family members that wanted to gather in private homes, and not just religious groups.
It remains to be seen whether Tandon has killed Employment Division v. Smith. It is clear, though, that worship remains at the center of free exercise concerns. Given its importance, churches were on solid footing in seeking to worship at least on the same terms as other similar indoor activities. Through fits and starts, in heavily restricted states and cities, the Supreme Court and lower federal courts seemed willing to allow churches to have at least some of their congregations back in their buildings. But now churches can be at peace that their state government officials have lifted restrictions on in-person worship. ♦
Jeffrey B. Hammond is an Associate Professor of Law at Faulkner University, Thomas Goode Jones School of Law in Montgomery, Alabama. Hammond specializes in law and religion, constitutional law, and health law.
Hammond, Jeffrey B. “The Protestant Cases and COVID-19.” Canopy Forum, June 21, 2021. https://canopyforum.org/2021/06/21/the-protestant-cases-and-covid-19/