Religious Liberty Advocates See Rough Road Ahead Due to Pandemic, but Mostly Optimistic About Future Wins

July 31, 2020 Updated: August 2, 2020

News Analysis

Pastor John MacArthur is among America’s best-known conservative evangelical preachers, so many were shocked by his recent decision to defy California Gov. Gavin Newsom and open his church for services.

More than 1,000 congregants attended the following Sunday. The Sun Valley congregation was not the first in California to defy Newsom’s ban, but the decision drew national attention, thanks to MacArthur’s conservatism and prominence.

Newsom’s order amid the CCP virus pandemic reinstated a prior ban on church meetings inside and outside, and closed bars, gyms, indoor dining in restaurants, hair salons, museums, and zoos for the indefinite future in 30 counties.

Thousands of Protestant and Catholic churches voluntarily refrained from in-person meetings when the nation went into lockdown in March, with most going to digital gatherings through May and into June.

But congregants chafed as the weeks dragged on, and numerous skirmishes erupted when aggressive state governors and municipal leaders pushed beyond limits that seemed justified by the threat.

Prominent among such skirmishes was Kentucky Democratic Gov. Andy Beshear’s ban on church gatherings, along with criminal penalties for violators.

First Liberty Institute, a Plano, Texas-based nonprofit devoted to defending First Amendment religious freedoms in court, defeated Beshear’s order when a U.S. District Court ruled that “if social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection.”

Churches but Not Casinos Banned

The Kentucky victory was one of numerous similar First Liberty wins in recent months, but then came the U.S. Supreme Court’s July 24 rejection of a Nevada congregation’s request for an emergency restraining order against Gov. Steve Sisolak’s ban on church meetings with more than 50 people. The ban didn’t apply to Nevada’s many gambling casinos.

“The Nevada decision was extremely disappointing, not only because it was bad law, but it was a blow to religious freedom,” Focus on the Family Judicial Analyst Bruce Hausknecht told The Epoch Times in a July 30 interview.

“The fact that the Supreme Court could affirm religious freedom in recent cases and then turn around and say Nevada’s governor can favor casinos over churches is just mind-boggling,” he said.

Hausknecht was referring to three other recent Supreme Court decisions, in which the justices strongly affirmed the right of religious groups to compete for government grants, to consider religious principles in hiring and firing employees, and the exemption of religious groups from Obamacare’s contraceptive mandate.

But policies stemming from the CCP virus pandemic will continue to spark litigation on vital religious freedom issues, Alliance Defending Freedom (ADF) Vice President for Appellate Advocacy John Bursch told The Epoch Times on July 30.

“A lot of ministers and priests and rabbis are kind of reaching a tipping point. You know, everybody in March immediately jumped on board with whatever governors were saying had to be done to protect public health,” Bursch said.

“But as the crisis has continued, they are watching restaurants and casinos and amusement parks like Disney World, all these things open up with appropriate social distancing and masks.

“But then churches are being told that they shouldn’t open, or if they do, only with highly reduced numbers, so we’re starting to see some civil disobedience, and I think that is probably warranted.”

Government by Decree

First Liberty President Kelly Shackleford told The Epoch Times a key factor in recent and coming religious liberty litigation is that courts have shown too much respect for gubernatorial decrees and orders.

“There’s a whole set of arguments and things that no courts have really gotten into yet, which they should, which is they should not be treating these orders the same way they treat a legislative act,” Shackleford said.

“The reality is they should be given much less respect because, with the legislative process, you go through all this sausage-making, where everybody gets to look at it, different people get to testify, where you question everything, you change, you mold, you react to the different situations.

“After you go through all this process and get something through, you have kind of considered everything, but these orders are like somebody sitting in their basement coming up with rules, and some of them are crazy, and to give them the same kind of deference is wrong and I think the courts need to analyze that.”

Shackleford and Bursch agreed that the Nevada decision shouldn’t be viewed as decisive, because Chief Justice John Roberts intensely dislikes granting emergency orders that prevent a full judicial consideration of issues. The case is still percolating in the lower courts and could well return to the High Court for comprehensive consideration.

All three advocates expect more significant victories on behalf of the free exercise of religion.

“Oh, I would certainly hope so, and the one that I would suggest keeping an eye on for the fall is [Fulton v. City of Philadelphia] that involves Catholic Social Services. The city terminated their license to do adoption and foster care work even though there are more kids that need placement,” Bursch said.

“They are doing it because they hate the Catholic Church’s religious beliefs. I think we are going to see a fairly significant Supreme Court opinion at the end of the term that vindicates the faith-based agency.”

Bursch also expects “some of these [CCP virus] cases will quickly find their way back up to the Court.”

Contact Mark Tapscott at Mark.Tapscott@epochtimes.nyc