More Than an Idle Threat: Real Assaults on Religious Liberty Emerge in the Pandemic

A chilling headline ran over the weekend from CNN: “Louisville Police Officers to Record License Plate Numbers of Easter Weekend Church Goers.”

Over the course of this pandemic, I’ve consistently argued that churches should follow generally applicable shelter-in-place orders. In an article I co-wrote for The Washington Post, I stated that many of these orders and guidelines from the CDC do not violate religious liberty—moreover, Christians have a duty out of love of neighbor to comply with general policies that attempt to abate the spread of the coronavirus. Indeed, governments are justified in ruling that all mass assemblies ought to cease for a definable period of time. That is rational government policy.

If, however, policies target or single out churches and religious groups, this becomes an entirely different issue—it is an issue of an unconstitutional violation of religious liberty.

Indeed, the headline from CNN describes an actual threat against churches. Police officers were ordered to write down license plate numbers of cars that were present at “drive-in” worship services on Easter Sunday.

The idea of a “drive-in” service goes back to the 1950s and 60s, when figures like Robert Sculler had the idea to gather people together at a drive-in-theater in order to preach the gospel and hold what was considered a worship service. To be clear, my church did not attempt to have this kind of drive-in service on Easter—theologically, I don’t believe that is the most appropriate way for churches to gather.

The theological veracity of drive-in services, however, is not the issue. The issue is religious liberty.

Louisville Mayor Greg Fischer threatened to take action not against those who might violate the social distancing guidelines, but specifically those who otherwise would have kept those orders and participated in a drive-in worship service. As long as people remain in their cars and are of the same household, it is very difficult to see this as anything other than a specific targeting of religion and Christian worship services.

Indeed, other drive-through services are still allowed, including drive-through liquor services in Kentucky. If you can have legal drive-through liquor, it is hard to argue that you can’t have drive-in worship services.

Careful Christian and constitutional thinking are essential to thread the needle rightly, especially in the midst of a pandemic. During a national or global emergency, bad precedents can take root. Over the course of the last several weeks, government officials have breached the line, consistently threatening precious constitutional rights in the name of the common good. Many of these policies, however, specifically target and single out religion, mandating rules and procedures that are not applied to other sectors of the society.

Kentucky Governor Andy Beshear issued a strong warning against drive-in services, but he stopped short of placing them in the same category as a physical gathering in a room. Governor Beshear, however, made a critical error earlier in the pandemic when he said that churches should no longer meet—an order he did not, at least at first, apply to other mass gatherings like high school basketball games. Churches were singled out.

Policies that single out churches and religious organizations are patently wrong and unconstitutional. Since the middle of March, governors, mayors, county commissioners, and health departments continually issue orders that compromise religious liberty—a freedom that is not just one amongst other enumerated rights, but the first liberty enshrined in our constitutional order. Indeed, religious liberty is the liberty upon which all other freedoms depend.

In the state of Nevada, Governor Steve Sisolak banned drive-in services in a tweet made on April 8. Other such orders came around the nation—the language, however, is very important. Are these suggestions, advisories, or legal commandments? Or, in the case of Louisville, do these orders also come with the threat of police action?

It is hard to believe that this kind of language could be used by any American politician. Isn’t respect for religious liberty so deeply ingrained in the American mind that political leaders, regardless of party, would understand their duty to do everything possible to protect this fundamental freedom?

The threat of police force against those attending a drive-in worship service, however, is an unprecedented threat against religious freedom. Of all the mechanisms at the disposal of government, police action is the one that governments must not use without ample justification and constitutional foundation.

In the case of Louisville, it took a federal district court judge the day before Easter to issue a temporary restraining order against Mayor Fischer’s policy, stating, “On Holy Thursday, an American mayor criminalized the communal celebration of Easter.” To be clear, the Mayor of Louisville and the Governor of Kentucky have the authority and responsibility to issue generally applicable orders—orders that do not single out one specific group of people. Specifically threatening religious believers and congregations, however, exceeds their constitutional authority; they are demanding something of Christians that they are not demanding of any other sector in the community.

Indeed, in this specific case, congregations did not attempt to meet in person, in their worship centers, in complete defiance to the most basic guidelines from the CDC. Those guidelines against social distancing, moreover, came from a precedent established in the 1918 influenza epidemic that swept the nation. That sickness claimed the lives of far more Americans than is expected with COVID-19. It was during that epidemic that social distancing and the cessation of mass gatherings were established as helpful precedents that did not violate the constitutional freedoms guaranteed to religious organizations.

Pandemics can set a longstanding precedent; and attempts made by many states and jurisdictions—like banning drive-in worship gatherings—represent potentially dangerous precedent-setting policies that could undermine our constitutional order. In Mendocino County, California, for example, the public health authorities mandated that churches video streaming their services could not including singing.

Again, to be clear, authorities can and should require that churches respect and maintain physical distancing between all the very limited participants in a streamed worship service. The worship leader, the other musicians, and the pastor should comply with the local, state, and federal guidelines that are in place to help stop the spread of COVID-19. It is an entirely different matter, however, to tell Christians that they cannot sing in praise and honor of God. Indeed, these orders came out just days before Resurrection Sunday—orders saying that Christians, on the day where they celebrate the resurrection of the Lord Jesus Christ, are prohibited from signing.

Governmental authorities cannot intrude upon the integrity of Christian worship, which is exactly what these orders violate.

Other questions abound during this pandemic, especially over the issue of what is and what is not essential. During this crisis, governments must determine what services are essential to society and those that can be suspended in order to slow the spread of the virus. However, we have a major problem when governments indicate that liquor stores and pet stores are essential but religious services are not. When governments assert that abortions are essential but singing in a streamed worship service is just too unsafe and nonessential, then we have slipped into a complete upending of the American constitutional order.

Government should never be in the position to derail any religious ministry and deem it nonessential. That is, on its face, completely unconstitutional.

Moreover, governing officials, including Governor Andy Beshear of Kentucky, have recognized the way churches and religious groups responded in this crisis. Governor Beshear said, “To our knowledge 99.89% of all churches, synagogues, and all mosques in Kentucky have chosen to do the right thing.” The right thing, in this case, is to cease all physical gatherings, which must be understood as enormously costly for churches. Christians understand the central importance of gathering together physically—of singing together, partaking of the ordinances together, and sitting together under the preaching of God’s Word. Indeed, just think of the cost to Jewish families who were unable to gather for the Passover this past week. The vast majority of churches and religious groups have complied with government calls to restrict social interaction.  If some congregations defy these orders, then the law should be applied appropriately.

Even then, however, we must keep in mind this fundamental reality of the American constitutional order—an order enshrined in our governing documents since 1789. Religious liberty, the freedom of assembly, and all other essential liberties are not granted by the government. They were recognized by our founders as rights granted by the Creator. These were discovered rights, not constructed. Government has a duty and responsibility to protect, defend, and respect these pre-political liberties.

This means that during a crisis, authorities must do everything within their power not to single out any religious institution. Authorities must also resist any urge to demean religious services and organizations as “nonessential.”

In response to Mayor Greg Fischer’s order, United States District Court Judge Justin R. Walker of Western Kentucky, issued a temporary restraining order that effectively curtailed Fischer’s attempt to prevent drive-in church gatherings and ended the threat to have the police take license plate numbers of those who dared to defy this unconstitutional mandate. The Judge said, “The mayor’s decision is stunning, and it is ‘beyond all reason’ unconstitutional.”

Judge Walker struck at the heart of the problem, arguing that the orders coming from the Louisville government were “not generally applicable, to both religious and non-religious conduct. Here, Louisville has targeted religious worship by prohibiting drive-in church services while not prohibiting a multitude of other non-religious drive-ends and drive-throughs including, for example, drive-through liquor stores… When Louisville prohibits religious activity while permitting nonreligious activities, its choice must undergo the most rigorous of scrutiny. That scrutiny requires Louisville to prove its interest is compelling and its regulation is narrowly tailored to advance that interest.” Judge Walker also stated that Louisville’s policies were underinclusive and overbroad: “They’re underinclusive because they don’t prohibit a host of equally dangerous or equally harmless activities that Louisville has permitted on the basis that they are ‘essential.’”

Then, the Judge landed a powerful, very short sentence: “But if beer is essential, so is Easter.”

You may not have heard the name of Judge Justin R. Walker. If you have not heard of his name, you are about to become very familiar with it.

Indeed, an editorial ran just days ago in the Wall Street Journal: “Get Ready for Another Court Fight.” The fight in question is over President Trump’s nominee to the D.C. Circuit Court of Appeals. This is the second most important court in the United States of America. Its members are often called upon to be nominees to the Supreme Court.

The judge nominated by President Trump to fill the vacancy on the Court of Appeals for the D.C. Circuit is none other than Judge Justin R. Walker.

Walker’s name appeared in the news days before his ruling about Louisville’s unconstitutional policies against churches. The New York Times ran an article on April 4^th, which declared, “President Trump… nominated Judge Justin Walker, a protégé of Senator Mitch McConnell, to a vacancy on the influential United States Court of Appeals for the District of Columbia Circuit, touching off what is likely to be a contentious confirmation fight in the Senate.” Given the present urgency and battle over the federal courts, it is no wonder that there will be a major controversy with Judge Walker’s nomination. Indeed, assuming there is no vacancy on the Supreme Court, Judge Walker’s confirmation hearing will be the biggest judicial battle in this crucial 2020 election year. If confirmed, the Duke University and Harvard Law School graduate would be the youngest judge appointed to the D.C. Circuit in a generation.

At this juncture, we must observe a critical pattern emerging in American politics. Many of the leading public figures trampling upon or compromising religious liberty are elected Democrats. The eventual hostility that will no doubt meet Judge Walker in his confirmation hearing will come from Democrats—their consternation will be directed at his constitutional hermeneutics, his views on abortion cases, but also his stance on religious liberty.

There is no coincidence in the hostility of Democrats towards religious liberty—it reflects the secular trajectory of the Democratic Party. Many in the press and in the political power structures now refer to religious liberty with scare quotes around it, as if it is nothing more than a term of intellectual invention.

The Mayor of Louisville is a Democrat. Governor Beshear is a Democrat. Governor Sisolak of Nevada is a Democrat. California is almost entirely under the sway of Democratic politicians at the state and local level. Contrast the actions of the Democrats in Kentucky with those of Kentucky Attorney General Daniel Cameron, who is a Republican. Cameron, when asked about drive-in services, stated that he had no problem with them so long as “they comply with federal guideline for social distancing to slow the spread of COVID-19.”

The Attorney General balanced a legitimate public health interest with the equally precious interests of the American Constitution. He was careful not to apply or support any policy that singled out religious services. This is what you hope for in an Attorney General.

Mitch McConnell, moreover, who serves not only as the United States Senate Majority Leader but also as the senior U.S. Senator from Kentucky, sent a letter to Mayor Fischer on April 9^th that protested the Mayor’s threats against religion. Senator McConnell said, “To my knowledge, the government has not imposed similar wholesale bans on gatherings of people in vehicles for commercial purposes, including large, heavily-trafficked retail operations, grocery stores, and many others. Let me be clear, I believe churches should follow CDC guidance on mitigating the transmission of COVID-19 and support temporary government regulations consistent with that guidance. Religious organizations share the national responsibility to fight the disease’s spread. The reports of churches meeting in open defiance of CDC guidelines and thereby contributing to the spread of the disease are troubling and disheartening. I do not support those irresponsible gatherings. But religious people should not be singled out for disfavored treatment.”

This is the essential point of the entire issue at stake as this nation faces this global pandemic. American citizens must get this point and be ready to defend and define it—our constitutional liberties are at stake and the precedents set during this health crisis will have far reaching implications in the decades to come.

We must be alarmed that just this past weekend, the mayor of a major American city threatened to have the police take down the license plate numbers of cars gathered in a parking lot for an Easter worship service—people who were otherwise abiding by the CDC and other governmental guidelines.

They are taking names. They are taking numbers. This is happening in America 2020.