SALT LAKE CITY — Legal experts, policymakers and pastors from across the political spectrum agree that the COVID-19 pandemic is challenging Americans’ approach to religious freedom. But they have different ideas about who’ll pass the test.
Some religious liberty advocates point to restrictions on church services to argue that many political officials deserve a failing grade. In many states, leaders have acted as if the Constitution only guarantees the ability to worship quietly at home, said Jeremy Dys, special counsel for litigation and communications at First Liberty, a religious freedom-focused law firm.
“I’m concerned with what I have seen in the past six months,” he said. “If current trends continue, the future of religious liberty is very dire.”
Other legal experts say that state officials are only trying to keep people safe. It’s dangerous to offer broad exemptions to public health policies and enable faith leaders to make their own rules, said Maggie Siddiqi, director of the faith and public policy initiative at the Center for American Progress.
“A small set of individuals has demonstrated that they want the ability to use religious freedom as a free pass out of any and all regulations,” she said.
These comments are specific to the coronavirus pandemic, but they should sound familiar to people who follow other religious freedom debates. For years, pastors and other community leaders have clashed over how to apply the Constitution’s religion clauses and what the government owes to people of faith.
Rather than inspire people to see old church-state conflicts in a new light, the pandemic seems to be further escalating existing tensions, legal experts said. At the same time, it’s served as a reminder of why these debates matter and what’s lost when religious freedom advocates spend more time arguing than helping people in need.
“Religious freedom benefits society, not just by allowing people to gather but by creating spaces for religious organizations to do good works,” said Luke Goodrich, vice president and senior counsel for the Becket Fund for Religious Liberty.
Defining religious freedom
Although a pandemic is rife with opportunities for religious freedom conflict, related policy debates in the U.S. got off on a pretty good foot this spring.
State leaders generally tried to craft faith-related restrictions that were fair and respectful, and most pastors understood and heeded calls to cancel or reduce the size of in-person meetings.
“The most remarkable and striking aspect of the pandemic related to religious liberty is how quickly churches adapted and how willingly they transformed,” Goodrich said.
However, as the pandemic stretched into late spring and then into the summer, some notable tension points began to emerge. Leaders in states like Kentucky, Illinois and New York appeared to threaten churches trying to reopen, and some houses of worship filed lawsuits over social distancing rules.
“Houses of worship shouldn’t have to come to the government for permission to exercise their religion,” Dys said.
The lawsuits sparked a backlash in the opposite direction, prompting questions about the real motivation behind pastors’ claims. To some, it felt as if the legal conflict was aimed at showcasing the strength of religious freedom protections rather than doing what’s best for vulnerable congregations.
“I think the people who have pushed hard for religious exemptions during the pandemic believe that, if they can win on this front, they can get a free pass out of just about any regulation,” Siddiqi said.
Dys highlighted comments like these as he explained what’s bothered him most about the past few months. Rather than sympathize with religious leaders’ quest to reopen, some Americans seemed comfortable with policies keeping worshippers trapped at home.
“Many people seem just fine with elected officials saying stay home, don’t go to church and don’t exercise your religion,” he said.
Siddiqi argued that she and others are not advocating for restrictions on religious freedom. Instead, they’re trying to highlight that upholding religious liberty doesn’t require putting people’s lives at risk.
“The people who are advancing this narrative that public health orders threaten religious freedom are actually a fairly small group of people,” Siddiqi said.
She pointed to a recent Pew Research Center survey showing that nearly 8 in 10 U.S. adults (79%) believe houses of worships should be required to follow the same social distancing rules as other organizations and businesses in their area.
Lessons from the pandemic
Goodrich, whose organization has also been involved in lawsuits over gathering restrictions, described pandemic-related religious freedom conflict as unfortunate but not surprising.
Legal experts rarely agree on what laws require religious exemptions or how broad those exemptions should be.
“It’s difficult to strike the balance between protecting public health during an unprecedented pandemic and respecting civil liberties, including the free exercise of religion,” Goodrich said.
What’s more surprising is how open many government officials have been to adjusting restrictions once they’ve learned of churches’ concerns. The pandemic has shown that the best religious freedom solutions emerge when people are willing to see things in a new light, Goodrich added.
“When people are willing to dialogue in good faith and work together, they can not only head off unnecessary religious freedom conflicts, but also build cooperative relationships that are good for society,” he said.
However, such relationships aren’t possible without shared trust, and that’s what missing in many of today’s religious freedom debates, legal experts said. Attorneys, lawmakers and religious leaders disagree on how best to protect people of faith and who to blame when things go wrong.
“There’s dangerous hostility in the country toward religion in the United States right now,” Dys said.
Siddiqi, on the other hand, said that what’s really dangerous is taking religious exemptions too far.
“I am not advocating for limiting religious freedom in any way. My concern is that some religious exemptions are a distortion of religious freedom,” she said.
Although these conflicting viewpoints can’t be resolved overnight, the pandemic is a reminder of why religious freedom advocates should try to be on the same page, legal experts said.
The ongoing crisis has shown just how vulnerable religious rights can be, said Elder David A. Bednar, of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints, in June.
“We have witnessed the government’s swift, well-intentioned, but often dangerous breaching of the boundaries that protect the free exercise of religion. Do we hear the buzzer on the alarm clock? This is a wake-up call for all of us,” he said in an address given during Brigham Young University’s three-day Religious Freedom Annual Review. “Those fundamental boundaries and protections must be healed, renewed and fortified.”
When new threats to faith communities can emerge at any minute, it’s important for policymakers, pastors and attorneys to be willing to work together.
“Religious freedom is fragile,” Goodrich said. “We need to be constantly ready to protect it.”