The United States is closed for business. With stay-at-home orders in almost every state across the nation and any operation not deemed essential by the government shut down or severely limited, it’s all but official. In this time of liberty on lockdown, many wonder if the COVID-19 pandemic trumps freedom of worship and the right to assemble. Coronavirus may have conquered America, but can it cancel church?
Define Essential
Most state administrations seem to agree that only essential businesses should remain open and function more or less as usual. But what’s essential? Upon that one little word hangs so much confusion. Hospitals, grocery stores, and gas stations are, of course, still open around the country – as are many restaurants, though only for driving through or picking up at the curb. In some states, hair salons are essential. In others, it’s marijuana dispensaries and vape establishments. Even bike shops remain open as essential in Philadelphia, New Orleans, and San Francisco. Liquor and tobacco stores make the cut almost without exclusion nationwide. While officials may be confused about what we can and can’t live without, a glance at this eclectic list shows a clear definition of essential: whatever goods and services that people want badly enough to fight for.
A Time of Fellowship?
So what about churches? If booze, smokes (narcotic or otherwise), and cheeseburgers are essential goods that can’t be lived without, what about worship and fellowship? In some places, churches make the list; in others, they don’t. New Hampshire’s governor banned public gatherings of more than 50 people back in March, and churchgoers sued. “We can choose to assemble if that is our desire,” one plaintiff said in a press release. “What cannot occur is one man in a position of power deciding to strip us of our rights in the name of safety and without due process.”
Superior Court Judge John Kissinger, however, disagreed. He upheld the ban, saying it was clear that “this is an extraordinary public health crisis,” and that he couldn’t see “a more critical public objective than protecting the citizens of this state and this country from becoming sick and dying from this pandemic.”
The opposite occurred in Florida. The Hillsborough County Council met and reversed an order that imposed a ten-person limit and six-foot social-distancing restriction on churches. Governor Ron DeSantis amended his executive order so that religious services across the state could be considered essential and, therefore, exempt from the social-distancing regulations. This change comes after Hillsborough County Sheriff Chad Chronister issued a warrant for the arrest of the pastor of The River at Tampa Bay Church, despite earlier giving written assurance that no one would be locked up for attending services.
First Amendment – Does It Apply?
In those states shutting down places of worship, many believers rail against what they see as a clear violation of the First Amendment. The relevant parts for this complaint are “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and “or the right of the people peaceably to assemble.”
Does this prevent the state from enforcing social distancing at all? Not according to some legal experts and government officials. Judge Kissinger doesn’t think so, of course, but he isn’t alone. “The state has leeway even under the First Amendment to determine the time, place and manner of assembly, and it also can impose restrictions that are narrowly tailored to further a significant interest,” explains Elizabeth Goitein, director of the Brennan Center for Justice’s Liberty and National Security program. “In a public health crisis like this, these restrictions could include prohibiting gatherings of a certain size.” Evidently, the governors across the Union who haven’t recognized churches as essential agree.
The state’s authority here is about as well defined as the term essential business – and, for better or worse, it will likely fall to the highest court in the land to someday provide a universal standard. As Liberty Nation’s legal affairs editor Scott D. Cosenza explained:
“The idea that persons can assemble whenever and however they want because of the First Amendment is not one shared by the Supreme Court. It is, however, not clear what restrictions on the right to assemble that court will call reasonable in response to the current pandemic. The Supreme Court has recognized broad powers of state authorities in dealing with contagious disease, but those cases have not been tested for a hundred years and are not directly on point. The only thing for sure at this point is that these cases will see the high court one day.”
Care to guess where the justices will fall on the issue? Look no further than the way the right to gather together has been affected thus far – and how the Second Amendment has been treated since FDR’s 1934 National Firearms Act kicked off decades of infringement. We have a well-established precedent in this country of setting aside the allegedly inalienable rights any time a crisis excuse presents itself.
Assembly in an Age of Tech
While many hallowed halls have closed their doors across the nation and the world, that doesn’t stop true believers from gathering in the Lord’s name. As Liberty Nation Editor in Chief Leesa K. Donner wrote, “Church, as most Christians will inform you, is not a place, but rather a people.” And while we’re advised to avoid gathering in large groups in person, there’s no reason in this technological age that we can’t still assemble and spread the word. Pastors across the nation, many in country churches that previously only reached small congregations, have turned to podcasts and video streams to share their sermons with members stuck at home – and in so doing make themselves available to the world.
While the pandemic and the subsequent panic have brought devastation, it has also presented lessons and opportunities for growth. When we can’t safely (or legally) have our traditional gatherings, we find a new way to make it work. Coronavirus may have the nation shut down, but it can’t cancel church.
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Read more from James Fite.
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