COVID-19 and Religious Liberty

"The churches are asking for equal treatment not special treatment"

- The First Amendment Faithful,
Wall Street Editorial Board

Religious Liberty and the COVID pandemic

Americans possess fundamental rights to freely exercise their religion and assemble when doing so. Those rights have always been limited by what is necessary to protect public safety. In the context of a pandemic, this can mean that the government can temporarily limit communal worship and religious exercise if truly necessary, so long as it does so on equal terms with other activities, showing no special disfavor to religion.

When COVID-19 first reached the United States, little was known about transmission and infection rates. Both governments and religious organizations took immediate steps to keep people safe. Overwhelmingly, a variety of religious denominations voluntarily ceased in-person worship services before government stay-at-home orders were issued. Religious schools transitioned to remote learning or took other appropriate measures to protect their students, teachers, and parents. After months of shelter-in-place orders and temporary prohibitions on everything from daycare to in-person worship services, governments started to make plans to reopen businesses and social activities. Some governments rightly treated religious congregations as essential and made plans for them to resume services alongside businesses. However, many others made the mistake of reopening businesses and allowing mass protests while holding religious exercise back.

Becket stepped in to defend the Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota when Governor Tim Walz issued an unjust order, subordinating religion to the economic interests of the State. Thankfully, when the religious communities stood up for their rights, Governor Walz changed his order, reducing limitations on religious exercise.  

Becket also defended the Roman Catholic Diocese of Madison. When Madison/Dane County abruptly changed its reopening order to uniquely disadvantage religion, Becket sent a letter to County Executive Joe Parisi and Mayor Satya Rhodes-Conway warning them that continuing this discriminatory treatment of in-person worship violated federal and state law. Madison/Dane County too recognized its error and amended its order to return houses of worship to equal footing with secular services.  

Becket filed a friend-of-the-court brief in Capitol Hill Baptist v. Bowsera lawsuit against Washington, D.C.’s policy of restricting socially-distanced and masked outdoor worship services to one hundred people while letting other, larger open-air gatherings continue. Becket’s brief explained that a 100 person limit on outdoor religious gatherings was one of the strictest in the country – and that 42 states had no cap on outdoor worship at all. On Friday, October 11, a federal district court ruled in the church’s favor, allowing it to hold outdoor, masked, social-distanced worship services.

Becket, together with the Jewish Coalition for Religious Liberty, currently represents the Bais Yaakov Ateres Miriam school – an Orthodox Jewish school for girls – in its case against New York Governor Andrew Cuomo and New York City Mayor Bill de Blasio, who singled out the Orthodox Jewish community in New York for draconian lockdown measures. Despite acknowledging that schools were not COVID-19 superspreaders, Governor Cuomo issued an executive order shutting down the school, preventing Jewish parents from exercising their rights to provide their children with a religious education.

Governments have state and federal constitutional obligations to respect the free exercise of religion. While many states and localities have worked to impose the least burdensome restrictions on houses of worship, others imposed unjust burdens on religion not felt by secular entities. The map above shows the states that have worked hard to accommodate religion wherever possible, the states that are treating religious gatherings equally to similar non-religious gatherings, and the states where religion has been subordinated to similar secular services.