As the Covid-19 pandemic spreads unchecked across the United States, some governors are implementing or re-instating limits on public gathering. These restrictions are reigniting simmering frustration and anger about state and local efforts to limit religious gatherings, including Christian worship services. In March, which now feels like a lifetime ago, the vast majority of churches stopped gathering in person, shifting to online streaming options and working overtime to carry forward their mission in an online format while making complicated plans to resume in-person gatherings. Pastors carried the moral weight of their re-opening decisions, a burden for which no seminary education prepares a clergy person. Clergy as whole are prepared to hold the hand of the dying, officiate funerals, and care for the berieved; however, they are not ordained to the ministry of making life-and-death decisions for others the way medical professionals are. As the majority of pastors cried out to God for mercy and wisdom, a few cried out to their congregations to defy public health orders, and some decried the government’s mitigation efforts as assaults on religious liberty. This latter response raises two questions: do government mandates limiting worship gatherings violate first First Amendment, and what is the purpose of religious liberty?
What is the Purpose of Religious Liberty?
From a constitutional perspective, religious liberty is guaranteed because the free exercise of religion is one of the founding principles of the United States. While the role of religious freedom in the country’s establishment has been vastly oversimplified – indeed the majority of colonial settlers wanted freedom for their own religion, but not for others’ – it is true that the Constitution’s framers agreed that the government should not impose faith or impinge upon it. At the most basic level, the purpose of religious liberty is to allow people to believe as they will and to practice their beliefs without restriction, inasmuch as that practice does not violate other people’s rights. But what does this mean from a Christian perspective? For what purposes are we to use our liberty?
For Christians, the primary value of religious liberty is that it grants us the freedom to carry out the mission of the church and to profess and live our faith convictions. Therefore, if we want to understand the purpose of religious liberty, we need to be clear about our mission and our convictions. The mission is given by Christ: go into all the world, making disciples, baptizing in the name of the Father, and the Son, and the Holy Spirit (Matthew 28:19-20). That seems straightforward enough, and the religious liberty we enjoy in the United States protects our right to evangelize with very few restrictions.
Jesus also provided the basic principle that governs Christian convictions: love of God and love of neighbor (Matthew 22:37-40). The First Amendment broadly allows Christians to do the things that love of God and neighbor compel us to do. For example, Christians have challenged laws that restricted churches’ ability to aid people who are in the United States illegally on the basis of Christian responsibility to care for the poor. Or Christians have challenged military draft requirements on the basis of Christian pacifism. But not all Christians agree about convictions, which leads to the current division over whether state and local governments can restrict in-person worship gatherings. Some Christians see such restrictions as violations of the First Amendment, while others see them as reasonable and temporary mitigation efforts.
Do Limits on Worship Gatherings Violate the First Amendment?
The “free exercise” clause of the First Amendment guarantees that “Congress shall make no law . . . prohibiting the free exercise [of religion].” Given the fact that gathering for worship is an essential practice of the Christian faith (Hebrews 10:25), it seems prima facie that restrictions on Christian gatherings constitutes a violation of free exercise clause, since the restrictions place a substantial burden on sincerely held religious beliefs. However, the government may be within its rights to place this burden because it has a compelling state interest to do so and states have generally sought to place the least possible burden on religious gatherings (e.g. by limiting numbers but not banning gatherings entirely, and by recognizing the ability to stream online). These four criteria – sincerely held belief, substantial burden, compelling state interest, and least possible burden – make up the “Sherbert Test,” which courts often use as a starting point for determining whether a prohibition on free exercise is constitutional. It is not a perfect test, but it applies well in this case where the conflict is clearly between substantial burden and compelling interest.
Another principal that applies in religious liberty cases is general applicability or religious neutrality. When considering whether religious liberty is being violated, the court asks if religious groups are being targeted, or if the law is religiously neutral and religious groups happen to be among those directly impacted. This is where the question of limiting religious gatherings becomes much more complicated. When it comes to pandemic mitigation, church gatherings are somewhat unique because of the role of physical contact, singing, responsive reading, and duration of exposure in typical worship services – concerns that don’t necessarily apply in other settings like restaurants or department stores. So the question becomes, is the state within its rights to limit religious gatherings specifically, while placing less burdensome restrictions on other public services like public transit or big-box stores or entertainment venues?
Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York
On November 25th, 2020, the Supreme Court found 5-4 in favor of the Diocese of Brooklyn, which challenged the restrictions Gov. Cuomo imposed on religious gatherings. Justice Breyer wrote the opinion per curiam, and Justices Gorsuch and Kavanaugh each contributed concurring opinions. Justices Roberts, Sotomayor and Kagan issued dissenting opinions. The Court’s decision also applies to a similar case of an Orthodox Jewish congregation, Agudath Israel of America, et al. v. Cuomo. The core issue in these cases is whether Gov. Cuomo’s “regulations treat houses of worship much more harshly than comparable secular facilities.” It’s important to note that the SCOTUS opinion in this case prevents New York from enforcing the ordinances for now while the case continues to undergo review, so this isn’t the final word, however Justice Breyer believes that the final judicial review will yield the same result.
Here is a short summary of the Court’s reasoning in the majority opinion. According to the Court, the restrictions appear to not meet the requirement of neutrality, meaning the restrictions on religious gatherings burden religion as religion rather than treating religious gatherings the same way they treat any other kind of gathering. The regulations “single out houses of worship for especially harsh treatment.” Restrictions placed on houses of worship are not matched by restrictions on essential businesses (in “Red Zones”) or even non-essential businesses (in “Orange Zones”). The Catholic Diocese argues that it has in fact followed public health guidelines and no outbreak has been linked to their churches since reopening, in light of which the measures seem particularly harsh and not “narrowly tailored” to address the compelling state interest of controlling the Covid-19 pandemic, such as by taking into consideration the size of the buildings (and therefore the ability to maintain social distance with varying gathering sizes). The opinion also notes the “irreparable harm” of Catholic and Orthodox Jewish worshippers being barred from attending services that have vital in-person elements, such as receiving communion. (It would be very interesting to see how this element might play out in an Evangelical Protestant case where communion is understood differently and where “online communion” has been widely adopted.)
The Court’s opinion in this case may or may not apply in other cases where churches or other religious groups are suing states over gathering restrictions or bans. It appears the key factor will be whether religious gathering are being treated the same as other types of gatherings. But, as the dissenting opinions note, religious gatherings aren’t the same as big box stores or even restaurants, since religious gatherings usually involve people sitting in the same space for an hour or more, singing, responsive reading, and greeting people with affection. But to target these activities might be more difficult and seem even more like an attack on religion as such.
Displacing the Spectacular with Mere Spectacle
Having considered the most recent Supreme Court opinion, I want to return to the question of the purpose of religious liberty and how Christians use it in the United States. Pastors across the country have proudly flouted limits placed on worship gatherings, claiming either that the church is being persecuted or that Christian faith somehow shields people from contracting Covid-19 (or by claiming that the virus is a political hoax, but that’s a whole different issue). The latter excuse is a question of God’s providence, and perhaps I’ll address that another time. But the claim that religious liberties are being violated – the news interviews and Facebook Live rants and local paper op-eds – strike me as a desire to be seen more than a desire to bear witness to the gospel.
This attention seeking behavior might not be a problem if it drew attention to the truly spectacular: the life, death, and resurrection of Jesus Christ for the salvation of the world. Unfortunately, the spectacular Good News is displaced by the spectacle of Christian leaders whose witness lends credence to popular perceptions that churches are more concerned about money and power than about loving their neighbors in the midst of a pandemic. There is a difference between continuing to gather for worship and drawing attention to the fact that you refuse to follow public health guidelines.
Sean Feucht’s worship concerts/protests in major cities across the US provides one stark example of religious liberty being called upon to elevate Christian visibility over Christian witness. Beginning in Minneapolis in wake of George Floyd’s murder, Feucht, who is a Bethel Church worship leader and aspiring politician, has been holding mass gatherings for worship that double as protests against mask mandates and gathering restrictions.
Whatever one thinks of Feucht’s worship leadership or about the safety of gathering thousands of people outdoors without masks, a cursory glance at the media coverage of these events should give Christians pause. The coverage does not disparage the gospel message or mock the desire to worship, but it does raise concerns about the possibility of super-spreader events and the harm of encouraging people to ignore public health guidelines and local ordinances. What people see from the outside looking in is a spectacle, not a principled stand against a grave injustice. They see a group of people led by a celebrity who desire to be seen and whose flouting of city ordinances and public health guidelines looks like dangerous selfishness that lacks basic care for communities ravaged by death and food insecurity. Whether that is Feucht’s or the worshippers’ intent is beside the point. As Christians our public witness matters, which means perception matters as much as if not more than intent.
Am I being too harsh here? Maybe. Shouldn’t worship be a top priority no matter what else is going on in the world? Yes, though large public gatherings aren’t a requirement for worship – just ask Christians in Syria, China, or Indonesia. But imagine for a moment what the perception would be if Mr. Feucht used his celebrity to gather thousands of people to pray for these cities while observing the basic public health guidelines? What if instead of a worship concert/protest tour, Feucht channeled his celebrity status and financial assets into feeding the hungry, providing technology for visiting the sick, setting up care networks for widows and orphans, and praying for healing and justice? Such actions would likely receive less media coverage, but I’d hazard a guess that they would be exponentially more powerful. Unfortunately, these worship concerts/protests are received as spectacle, whatever their intent might be, and that spectacle has displaced the spectacular message of Jesus.
The Icing, Not the Cake
The Church’s mission is not institutional self-preservation. The Church’s mission is to make disciples, to take the Good News of Jesus Christ into the whole world, to do justice and mercy. Religious liberty is too often viewed primarily in terms of its benefit to the Church itself, rather than as an asset that enables the Church to fulfill its mission more freely. Religious liberty is the icing, not the cake. It is a benefit that Christians in the United States enjoy and for which we can be thankful, and it is worth safeguarding. But religious liberty is not promised by Christ and our commission is not dependent upon it. It can be a cause of complacency, as it costs Christians little to worship and evangelize in this country. It can be a distraction, as Christians focus on our own religious liberty instead of caring for those whose liberty is more grievously hindered. It can be an excuse to cry “persecution” even as brothers and sisters in Christ around the world are imprisoned, murdered, and in hiding for the sake of proclaiming the Gospel that we are free to emblazon on t-shirts and broadcast on television.
The cake is the mission of the Church to go into all the world; the icing is that we live in a country in which our mission comes with Constitutional protections. We cannot share the cake while obsessing about the icing.
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