By Lindsey Van Ness
Pew Charitable Trusts

Gathering to pray feels more important than ever for many Americans of faith, as COVID-19 cases top 2 million in the United States and communities roil with anger about police brutality and systemic racism.

Yet many governors and city leaders still prohibit large religious gatherings, angering some clergy — even those who backed pandemic-related restrictions imposed months ago — who see the continuing curbs on services as an attack on their civil rights.

Religious leaders, congregations and individuals have filed lawsuits against governors, mayors and other officials in at least 30 states.

President Donald Trump poured fuel on the fire two weeks ago. “I call on governors to allow places of worship to open right now,” he told reporters, calling the entities essential. “These are places that hold our society together and keep our people united.”

Worshipers attend a drive-in service at LifePoint Community Church in Willow Spring, North Carolina, last month. Many governors require the faithful to maintain social distancing during the pandemic. (AP photo by Robert Willett/The News & Observer via Pew Charitable Trusts)

In late April, roughly 2 in 3 states had restricted or prohibited religious gatherings, according to the Pew Research Center. (The Pew Charitable Trusts funds the center and Stateline.) By early June, that number had declined to 20 states, according to the Becket Fund for Religious Liberty, a Washington, D.C.-based nonprofit law firm.

Any gathering could lead to the spread of the coronavirus, including church services, as the Centers for Disease Control and Prevention has shown. In March, about a third of 62 worshippers at an Arkansas church tested positive for COVID-19. Three people died after two symptomatic people attended a service.

The CDC called a mid-March choir practice at a Washington state church a superspreading event after an asymptomatic attendee transmitted the disease to 52 of 61 people. The highly contagious gathering led to two deaths.

Courts have ruled that the government can restrict meetings to protect the public — but under the narrowest restrictions and for the shortest time necessary, said Gene Policinski, CEO of the Freedom Forum Institute and its First Amendment Center, in an interview.

“Any time government restricts our rights for any reason, it bears attention from all of us,” he said. “The government better have a pretty darn good reason.”

‘No Pandemic Exception’

Religious liberty advocates have been swamped with requests for help.

Scottsdale, Arizona-based Alliance Defending Freedom has represented 14 churches in lawsuits and assisted more than 2,500 churches and ministries.

First Liberty Institute, based outside of Dallas, Texas, received more than a hundred requests for legal help in the first half of May, significantly more than the few dozen they would have expected so far this year, according to attorney Jeremy Dys.

One client was On Fire Christian Church in Louisville, Kentucky, which sued the city after the mayor banned outdoor drive-in services leading up to Easter in April. A judge ruled the services could go on.

“We believe that beyond any shadow of a doubt it is crucial to be able to congregate with one another,” church Pastor Chuck Salvo said in a recent interview.

But judges also have ruled against such challenges.

The U.S. Supreme Court dismissed an appeal from a California church to strike down Democratic Gov. Gavin Newsom’s restriction of places of worship to 25% capacity or no more than 100 people.

In Illinois, a federal appeals court denied two church requests to hold services in spite of Democratic Gov. J.B. Pritzker’s ban on religious gatherings. The judge said the lawsuit was ill-founded, selfish and could risk lives.

In Maine, a U.S. district judge denied a church’s motion for a temporary restraining order to allow it to hold an in-person service in early May. Democratic Gov. Janet Mills had limited gatherings to 10 people but allowed drive-in services. The judge ruled the state’s standards were uniform and did not violate the Constitution.

Most of the legal debate has revolved around consistent restrictions.

Religious groups shouldn’t be categorically exempt from government oversight, and governments have a legitimate interest to protect the public’s health, said Emilie Kao, director of the Richard and Helen DeVos Center for Religion & Civil Society at the Heritage Foundation, a conservative think tank in Washington, D.C.

“Government authorities, state or local, should be treating religion in an even-handed and fair way,” Kao said. “We’ve seen disparate treatment of religious groups, religious communities, where their ability to worship has been limited where similar-sized secular activities were allowed.”

For example, she said, Minnesota allowed malls to reopen before religious gatherings. Under the state’s plan, retail businesses could reopen at 50% capacity May 18. Religious gatherings were allowed at 25% capacity starting May 27.

And most religious groups, she said, want to follow health recommendations and keep congregants safe.

In Wisconsin, the Catholic Diocese of Madison had advised its parishes to follow state guidelines until May, when the state Supreme Court struck down Democratic Gov. Tony Evers’ stay-at-home order.

The diocese released a plan to resume Masses at 25% capacity with distancing and other health measures, said Brent King, the diocese’s communications director. The diocese set up sanitation stations and asked congregants to sign up for Mass and refrain from congregational singing.

But officials of Dane County, which includes Madison, limited gatherings to 50 people and said it would fine churches in violation. The limit wasn’t an issue for smaller parishes, but seven of the parishes in the county can have close to a thousand attendees, King said.

So the diocese sought counsel from Becket Fund, the legal firm, which sent a letter June 3 to county officials saying the cap was unconstitutional. Two days later, officials changed the limits for religious services to 25% capacity.

“Given the virus, and now given the civil unrest, people need God,” King said in an interview. “People need God all the more right now.”

Dane County did not want to use taxpayer dollars on a lawsuit, said County Executive Joe Parisi in a statement. “COVID-19 is here, infecting more people every day and minimizing contact in large group settings is an incredibly effective approach to staying healthy.”

Changing Guidelines

After Trump’s news conference and detailed guidelines from the CDC that followed, a few states loosened restrictions on religious gatherings.

Guidelines lifting Minnesota’s ban on religious gatherings were released May 23, a day after the CDC’s.

Pritzker of Illinois released new guidelines May 28. The nine-page report gives a range of options for churches and advises against the riskiest activities: singing, group recitation, serving food and beverages, and person-to-person contact.

In some places, changing guidelines have led to confusion. The CDC, for one, quietly updated its guidelines within days of releasing them. The changes included removing warnings about singing as a risk for spreading the virus.

Unclear guidelines, in part, prompted a state lawmaker to passed the House State Government Committee in late May and will be considered again. The House returned to session this week.

Wolf’s most recent executive order on restrictions for businesses and gatherings excludes churches, synagogues, temples, mosques and other places of congregate worship. The order says the entities are strongly encouraged to enforce social distancing and mitigation measures such as wearing masks.

“The administration will continue to monitor public health indicators, adjust orders and restrictions as necessary,” said spokesperson Lyndsay Kensinger in an email.

Virus Hotbed?

Bills like Owlett’s also have been introduced in Minnesota and North Carolina.

Religious leaders filed a lawsuit challenging Democratic North Carolina Gov. Roy Cooper’s order restricting indoor gatherings to 10 people. A district judge issued a temporary restraining order to allow congregations to meet.

Cooper’s office said it would not appeal the decision. “We don’t want indoor meetings to become hotspots for the virus,” the office said in a statement. “And our health experts continue to warn that large groups sitting together inside for long periods of time are much more likely to cause the spread of COVID-19.”

Some pastors agree, including the Rev. Jerome Washington, of Mount Vernon Baptist Church in Durham, North Carolina. He said he’s in no rush to preach to his over 250-person congregation again.

“First and foremost, the safety of the members of our congregation come into play,” Washington said in an interview. “It has nothing to do with an edict from the governor, the president or anything.”

He’s particularly sensitive to the fact that most of his congregation is African American, a group that has been disproportionately sickened by the virus.

“When you think about how the virus is spread, corporate worship is a hotbed for that virus,” he said. “We are not going to put the people we are called upon to serve at risk.”

A similar line of thinking has guided Rabbi Hara Person, chief executive of the Central Conference of American Rabbis, composed of rabbis from the reform branch of Judaism. Only a few small synagogues have opened, and none of the members has pursued legal action against government restrictions.

“We believe in the separation of church and state,” Person said. “We believe the state doesn’t tell us what to do, but, if anything, we’re coming down more strongly on the safety issue.”

The organization soon plans to release detailed guidelines for rabbis on resuming gatherings, she said.

“In general, what we are telling people is to be as careful and cautious as possible,” she said. “There’s a [Jewish] value called pikuach nefesh. What it literally means is the saving of a life, that a saving of a life is more valuable than anything else.”

Lindsey Van Ness is an editorial assistant for Stateline, an initiative of the Pew Charitable Trusts