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As the pandemic rages on, more than 20 states debate bills that would protect in-person church services

Legislators across the country are considering nearly 50 bills dealing with religious freedom protections during a pandemic

A sign at St. Joseph Catholic Church in St. Joseph, Mich., encourages hope on Monday, March 30, 2020, as schools and churches across the country are closed due to COVID-19. Restrictions on religious gatherings have been a point of contention since the early days of the pandemic.
Don Campbell, Associated Press

More than 20 states are considering legislation this year that would make it easier for churches to hold in-person services during public health emergencies like the COVID-19 pandemic, according to a Deseret News analysis.

From California to Wisconsin to state houses in the Bible Belt, legislators are trying to limit officials’ emergency powers by either preemptively exempting churches from gathering restrictions or ensuring that religious organizations are considered “essential” and treated no worse than other businesses given the same designation.

They’ve also proposed bills that would protect houses of worship, along with many other types of organizations, from coronavirus-related liability claims or adjust state-level religious freedom law to make it clear that houses of worship must always have the option to remain open.

The bills’ sponsors and supporters argue that such measures are necessary to ensure that religious Americans never lose access to in-person spiritual care.

“Practicing one’s religion can be done safely, even during a pandemic, and the state should never have turned those who practice religion into second-class citizens,” said California Republican state Sen. Brian Jones, who is sponsoring a bill that declares religious services to be essential, in a statement.

However, other policymakers, as well as some faith leaders, believe that many of the proposed laws would do more harm than good.

“The virus doesn’t pay attention to whether or not an event is religious. It doesn’t look at the door of a church and think, ‘I’m going to keep moving.’ I don’t think the rules should pay attention to that either,” said the Rev. Brian Kaylor, who testified against three church closure bills during a recent Missouri Senate hearing.

He added that he knows how painful it is to lose access to in-person worship services. But he said religious Americans should be willing to make such a sacrifice in order to save lives.

“I find virtual church to be very awkward, but, at the same time, what it means to love my neighbor is to keep them safe,” said the Rev. Kaylor, who is a Baptist minister and editor of “Word & Way,” a Baptist magazine.

A sign hanging on a locked gate in front of the Ermita de la Caridad church in Miami indicates that the church is closed during the coronavirus pandemic on Thursday, April 9, 2020. More than 20 states are considering legislation this year that would make it easier for churches to hold in-person services during public health emergencies like the COVID-19 pandemic.
Lynne Sladky, Associated Press

Legal conflict

Restrictions on religious gatherings have been a point of contention since the early days of the pandemic.

Although legal experts generally agree that, during a public health emergency, state officials have the authority to temporarily prohibit in-person worship, they don’t see eye to eye on when gathering bans must end.

This summer, the Supreme Court allowed strict restrictions on churches in California and Nevada to remain in place even after the states had loosened rules governing grocery stores, restaurants and casinos.

Justices in the majority said what mattered was that houses of worship were treated the same under the law as other places where people congregate for long periods of time, like movie theaters.

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the free exercise clause of the First Amendment. Similar or more severe restrictions restrictions apply to comparable secular gatherings. ... And the order exempts or treats more leniently only dissimilar activities,” wrote Chief Justice John Roberts about the California decision.

The court’s more conservative justices objected to that assertion, arguing that standing next to someone at a blackjack table or supermarket cash register is not so different from sitting next to them in a pew.

“There is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel,” wrote Justice Neil Gorsuch in his dissent to the court’s ruling against churches in Nevada.

In more recent decisions, Gorsuch’s view has won out. The court has ruled that states like New York violated religious freedom law when they allowed secular businesses to reopen sooner than houses of worship, said Luke Goodrich, vice president and senior counsel for the Becket Fund for Religious Liberty.

“The biggest takeaway is that the government can’t treat houses of worship worse than other types of gatherings,” he said. “The court is very much ready and willing to enforce the constitutional guarantee of free exercise of religion.”

The Rev. Kaylor cited the Supreme Court’s recent rulings to explain why state-level bills banning church closures are unnecessary.

“We already have the rules in place that we need,” he said.

But other faith leaders see value in passing laws that spell out exactly what kinds of religious restrictions are allowed.

“Some people think bills are just brought up to respond to immediate situations, but really they’re crafted for what could happen five, 10 or 25 years from now. They provide guidance for the next pandemic, the next emergency order or the next disaster so that (officials) know in those times what they can do and what they can’t do,” said Chris Dodson, who is executive director and general counsel for the North Dakota Catholic Conference and testified in support of a bill that would make it illegal in most cases to treat religious activity “more restrictively” than secular conduct and has since passed the state Senate.

Legislative landscape

For the most part, bills aimed at preventing church closures or protecting houses of worship from pandemic-related liability claims have not gotten much traction, according to the Deseret News’ analysis.

Of the more than 50 bills proposed so far, only two have been signed into law: SB30 in Alabama, which protects churches and various other organizations from being sued over a COVID-19 outbreak, and HB1211 in Arkansas, which says that houses of worship can’t be entirely shut down during a state of emergency.

A closed sign is shown at The Church of Jesus Christ of Latter-day Saints’ Bountiful Utah Temple on Tuesday, March 24, 2020, in Bountiful.
Rick Bowmer, Associated Press

Legislators in Wisconsin and Kentucky also passed laws limiting officials’ emergency powers. However, the bills were later vetoed.

Kentucky lawmakers were able to override the veto, but Gov. Andy Beshear has since challenged their policy in court.

“Today, the General Assembly attempted to surrender to COVID-19 and accept the casualties,” he said after filing the lawsuit, according to the Louisville Courier Journal. “As your governor, I cannot let this happen. I have filed this action to continue to fight for the protection of all Kentuckians.”

Like Beshear, the Rev. Kaylor believes that legislative efforts to protect religious organizations from government interference will make it harder for community leaders, including pastors, to keep people safe.

The faith leaders he’s spoken with in recent months generally appreciated the safety guidance they received from secular officials, he said.

“When there are no restrictions, pastors are the ones who have to make the difficult decisions,” the Rev. Kaylor said. “They can lose members regardless of what they decide.”

Dodson, on the other hand, is hoping that more of the proposed bills will pass. Policymakers need to make it clear that not even a pandemic gives officials the right to shut down churches.

“The exercise of religious freedom is fundamental,” he said.

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