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Unlawful Limits on Religious Community in the Age of COVID-19

This is a good read on reach and balancing of power in this enviorment:


In America, the COVID-19 pandemic has required sacrifices of almost everyone and has thrown people and communities into chaos as so many activities that were taken for granted only a couple of months ago—going to the store, meeting up with friends, traveling, going to church—have not only become dangerous but have, in many circumstances, actually become illegal. Perhaps the most shocking development to many who believe that the Constitution provides strong religious protections was how easily local and state governments around the nation prohibited religious communities from gathering for worship.

As the challenges of living with a pandemic mounted, however, creative solutions to many problems began appearing around the country. Zoom meetings replaced in-person meetings, curb-side pickup replaced in-store shopping, and internet streaming religious worship replaced in-person services. For many communities, however, these solutions were impractical. Many lack the high-speed internet necessary for something like streaming worship services (and a significant number of Americans lack any home internet access at all, high-speed or not). Furthermore, many religious communities believe that meeting in person is a requirement of their faith. For these groups, internet streaming is not a sufficient solution, and more creative solutions were needed.

For many, that solution came in the form of drive-in church services. In these services, congregants park in their place of worship’s parking lot, and the pastor preaches using either a short-range radio transmitter or sound amplification. This method of gathering doesn’t require internet access, is available to any who would be able to attend the service normally, and permits the congregants to gather in-person while fully complying with the CDC’s guidelines for social distancing and limiting the spread of COVID-19. This seemed like the perfect solution for many whose religious worship was hindered by the pandemic and who could not rely on streaming services.

Unfortunately, those of us who work to defend religious freedom in America soon began to hear from churches who were told by government officials that drive-in services are prohibited. In Greenville, Mississippi, Temple Baptist Church and the King James Bible Baptist Church started holding drive-in services. The Greenville police department proceeded to issue $500 citations to the attendees at Temple Baptist Church and told the King James Bible Baptist Church’s pastor that his rights were “suspended.” Both churches filed lawsuits against Greenville. The U.S. Department of Justice intervened in one of the lawsuits, arguing that the drive-in church ban was unconstitutional because the city was banning drive-in religious services but let people remain in their parked cars in other contexts. Greenville decided, at that point, to reverse its decision and permit the drive-in services.

A similar situation played out in Louisville, Kentucky. On Fire Christian Church, after holding drive-in services for several weeks, was ordered to stop holding the services. Unlike Greenville, however, Louisville did not back down after On Fire Christian Church filed a lawsuit challenging the city’s ban. Judge Justin Walker issued a temporary restraining order against the city, ordering it to permit the church to hold its services. Finally, with the issuance of the TRO, the city and On Fire Christian Church were able to reach an agreement permitting the drive-in services.

On April 10, Chemung County, New York, Executive Christopher Moss announced via the county’s Facebook page that drive-in church services were prohibited. His Tabernacle Family Church, Pine City Christian Church, and Journey Church, three churches in Chemung County that wanted to hold drive-in church services, sent a demand letter challenging the order. While the county executive cited New York Governor Andrew Cuomo’s executive order as justification, that executive order places restrictions on large gatherings, but is silent as to drive-in churches. The day after receiving the letter challenging the prohibition, Chemung County agreed to permit such drive-in services so long as they comport with social distancing guidelines.

In each of these cases, the churches were attempting to follow the CDC’s guidelines for social distancing, and the congregants were simply sitting in their parked cars—something no one disputed would be permitted if they were parked at a Walmart instead of a church. As the nation begins to reopen, we need to keep in mind the principle that religious services cannot be treated worse than other activities. As Attorney General William Barr said, “[I]f a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings.”

And as America looks towards reopening, houses of worship are undoubtedly wondering how they can safely look beyond internet streaming and drive-in services and start to welcome their worshippers indoors. The federal government suggests a phased reopening approach, and while places of worship should follow these guidelines, we must resist policies that would, in the name of following the guidelines, place restrictions on places of worship that are not placed on others.


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