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.
Churches but Not Casinos BannedThe 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 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.
“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.
Government by DecreeFirst 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.
“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.”