After almost three months of COVID-19-related closures, thousands of congregations of all faiths can gather again in person because state or local orders have expired or relaxed. The situation is complex. Congregations still face restrictions like size limits or social distancing rules; in some places, the restrictions remain severe. Out of safety concerns, many congregations that are free to gather will stay online.

And a surge in cases in some places is causing communities to rethink their plans.

Restrictions on in-person worship have been divisive in the general public and within congregations. Those challenging the restrictions have often accused the government of devaluing religious practice. The challengers have often been accused of ignoring the common good.

While many churches are free to resume their gatherings, the questions and disputes around government restrictions during a pandemic remain. As a legal scholar and religious liberty advocate (Thomas Berg) and a law student and church leader (Shawna Kosel), we believe examining the legal principles and convictions at play will help us extend grace to those on both sides of the latest religious freedom disputes. It’ll also provide a better understanding if the virus spikes again and strict restrictions on worship return.

Religious Freedom Considerations

In their early weeks, state orders prohibiting worship were relatively strict across the board, prohibiting a wide range of in-person activities. But as states began to open up, they allowed more activities like in-restaurant dining and “personal services” (hair salons, tattoo parlors, and barbershops). Both of those bring people into close proximity for extended time periods, two of the significant factors that make worship services risky for coronavirus transmission.

If government restricts worship but allows activities presenting similar risks, that can amount to a religious freedom violation in two ways.

One is under the Supreme Court’s First Amendment doctrine, which says that government can restrict religious practice if, and only if, the law in question is “religion-neutral and generally applicable.” According to several court decisions, a law restricting religion fails the general-applicability standard, even if it doesn’t target religion alone, if it allows other activities that cause similar harms.

The second is that under both federal and state rules, government can restrict religious conduct if can prove the restriction is necessary to serving a “compelling” governmental interest (like public health). It’s difficult to prove that restricting religion is a compelling necessity if activities causing similar harms are allowed.

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Candidly, we see downsides when churches assert their rights aggressively by pointing to other activities that the government has allowed. Such assertions can intensify an unhealthy sense of grievance among Christians. They can play into the “what-aboutism” that often makes it difficult to establish any agreement in public debate today.

But equal treatment is also an element of intuitive fairness, and an important means of guaranteeing liberty. As Supreme Court Justice Robert Jackson once wrote, “[N]othing opens the door to arbitrary action so effectively as to allow [government] officials to pick and choose only a few to whom they will apply legislation, and thus to escape the political retribution that might be visited upon them if larger numbers were affected.”

Not only have a wide range of entities opened up, but in the last two weeks cities nationwide permitted large, crowded protests, complete with chanting and singing, exceeding the limits that COVID orders generally place on “mass gatherings.” The protests’ message challenging racism and police brutality is crucial—and often religious. But regulation must rest on the activity’s riskiness, not on the content of its message. Admittedly, the protests were outside, and their grassroots nature would’ve made stopping them impossible. But congregations have already begun to argue that declining to enforce health rules strictly to stop protests means you cannot invoke them strictly to stop worship.

How Courts Have Ruled So Far

As states and cities “open up,” more have permitted in-person worship with limitations. One survey reports that 31 states have no statewide prohibitions on in-person worship, 11 have prohibitions similar to those for other activities, and 9 restrict worship more severely. Some closure orders expired when a new reopening phase began, but others ended only because of actual or threatened litigation.

Many but not all local restrictions have been lifted too. Last week, after a threatened lawsuit, Madison, Wisconsin, eliminated its provision restricting worship gatherings to 50 people (they are still limited to 25 percent of room capacity).

On May 29, the US Supreme Court refused a request by a church to block California’s order confining worship services to 100 people and 25 percent of capacity. Chief Justice John Roberts cast the decisive vote, writing that churches had been treated no worse than “comparable secular gatherings” such as “lectures, concerts, movie showings, spectator sports, and theatrical performances.” He added that in the “dynamic” situation of a pandemic, judges should not “second-guess” elected officials on when to reopen.

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The Court’s ruling presents a hurdle to litigation, but it won’t mean the end of it. The California church faced a stiffer standard than normal because it was seeking an emergency injunction. And the scope of the restrictions may make a difference. California successfully defended its 100-person limit, while Madison rescinded its 50-person limit.

Essential vs. High Risk

Many orders allowed “essential services” to continue (groceries, food takeout, banks, and health care), but omitted in-person worship from that category, instead classifying them with “mass gatherings” like theatre and spectator sports. The exclusion from “essential” activities is probably the element that most angered those who oppose the orders. Members of Shawna’s congregation were stung that during the weeks when in-person worship was barred, the flashing LED lights of the local liquor store read, “We are essential!”

The rationale for these classifications cannot be that worship services are “inessential.” The First Amendment, by explicitly protecting religious exercise, treats it as an important activity. Classifying worship with sports and entertainment should not reinforce the attitude that religion is one “hobby” among others, rather than part of the lifeblood of society. Churches can be a vital resource during this crisis, comforting people and educating, leading, and encouraging them in acts of compassion and self-sacrifice.

Putting in-person worship in the restricted category can only be based on the risks of transmission it creates. Those are real. In worship and other mass gatherings, as Chief Justice Roberts observed, “large groups of people gather in close proximity for extended periods of time,” longer than in most retail settings. Worship can also involve hugs and the sharing of sacraments or hymnals. And singing seems to propel respiratory droplets further. These factors justified tight restrictions on in-person worship in early weeks—although as already noted, that justification weakens when activities presenting similar risks are “opened up.”

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There’s some perspective in knowing that similar disputes arose during the 1918 flu pandemic. In early October, churches in the District of Columbia complied with authorities’ official request to close, which soon became an explicit ban on even outdoor services. Three weeks later, with cases and deaths declining, the Protestant clergy federation sought permission to hold services on Sunday, October 27. One pastor argued that churches were “not a luxury, but a necessity” and should not be put “in the same class with poolrooms, dance halls, moving picture places, and theaters”; another said that “in quieting through strengthened faith in God the panic and fear in which epidemic thrives, the churches are potential anti-influenza workers.” The ban was lifted on October 29.

Congregations reassembled then, and they’re reassembling now. But the language of “essential” activities has created unnecessary resentment. In their phased reopening plans, many governors and mayors have instead focused explicitly on the relative risks that different activities pose. They should continue with that focus if they have to impose new restrictions in the fall.

Online alternatives?

Congregations have made creative use of livestreaming and recorded videos for online worship. But for legal purposes, that’s not a sufficient answer. Religious-freedom rules do require a claimant to show that a government action “substantially burdens” religious exercise—but substantial limits on in-person worship unquestionably meet that threshold. Civil courts are in no position to question the religious importance of meeting in person; such theological judgments are beyond judges’ authority.

Moreover, some people cannot participate in online services. At Shawna’s church, which is located an hour outside Minneapolis, 10 percent of the congregation lacks internet access. One congregant, who created masks for Shawna’s whole family, told Shawna she’d had no connection with worship for several weeks until drive-in services began recently.

One study estimates that 42 million Americans—including one-third of the population in rural areas—lack broadband access and, during the pandemic, are “being cut off even more from daily life, from doctor’s appointments to online worship services.” African American churches face disproportionate barriers: In a Pew survey, only 73 percent of black regular churchgoers said their churches had moved online, versus 84 percent of all regular churchgoers.

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Conflicts Over Reopening

Congregations that are legally free to open still face multiple questions about whether and how it’s safe to do so. As a pastor’s spouse and a leader in her church, Shawna writes:

The considerations for reopening are staggering, and the members of our congregation and community have strong, clashing opinions about each. Our town’s ministerial association hoped to promote unity by opening all 13 churches on the same Sunday, but it quickly became clear that different congregations’ unique situations would make that impossible.

Our church had to remember our core values in deciding when and how to reopen. We are generationally diverse and put priority on doing church together. We constantly promote the gospel work of bearing with one another, loving each other by setting our preferences aside. We have not yet returned to our building, because the car service has been the most “together” we can be. More vulnerable people can keep their windows rolled up; kids can sit in lawn chairs near their cars. We are considering an evening prayer service tailored to vulnerable attenders. We’re glad we now have freedom to make those decisions.

We are praying for a resurgence of encouragement and patience, of understanding and hope as we move forward. Whether or not it’s called “essential,” the church is still committed to facilitating redemption, reconciliation, peace, mercy, justice, and love.

Thomas Berg is James Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law in Minneapolis.

Shawna Kosel is a wife and mother, community leader, and religious philosopher pursing a law degree at St. Thomas as an extension of her love of learning and commitment to the common good.