WASHINGTON — Churches across the nation are reopening according to their state’s guidelines and President Donald Trump on May 22 called on state governors to allow churches to reopen “right now” as “essential” services.
The Centers for Disease Control (CDC) also released new guidelines at the same time, to help faith communities reopen safely amid the COVID-19 pandemic.
Democratic governors in multiple states have not permitted church re-openings in orders that permit partial re-openings for other businesses, something that President Trump subsequently addressed specifically. “I’ll override any governor that wants to play games,” he said during remarks this week. The president’s authority to “override” governors was called into question, however, and White House Press Secretary Kayleigh McEnany clarified that he “will strongly encourage every governor to allow their churches to reopen.”
The CDC presented its guidelines as “suggestions for faith communities to consider and accept, reject, or modify, consistent with their own faith traditions, in the course of preparing to reconvene for in-person gatherings while still working to prevent the spread of COVID-19.”
The suggestions included encouraging the use of cloth face coverings and intense cleaning, social distancing and limiting the sharing of frequently touched objects consistent with one’s faith tradition. The guidance noted that “religious worship has particularly profound significance to communities and individuals, including as a right protected by the First Amendment. State and local authorities are reminded to take this vital right into account when establishing their own re-opening plans.”
The CDC initially released reopening guidelines for schools and businesses earlier in May, but did not mention communities of faith due to concerns raised by the Trump administration that the draft guidance for places of worship was “overly prescriptive” and interfered with church autonomy.
“The federal government cannot single out religious conduct as somehow being more dangerous or worthy of scrutiny than comparable secular behavior,” Roger Severino, the director of the Department of Health and Human Services’ Office for Civil Rights, commented on the guidance at the time.
Trump’s Coronavirus Response
Trump’s response to the pandemic will continue to be a key issue in the months ahead on an uncertain campaign trail. His push to reopen stands in contrast to his Democratic opponent, former Vice President Joe Biden, who claimed that Trump is mishandling the COVID-19 pandemic and urged more caution in reopening, arguing that the president is not listening to the experts. The Trump campaign countered that Biden supports policies that would increase damage to the economy.
There was speculation that the president’s strong push to reopen churches could have been motivated by April polling that showed a double-digit percentage decline in Trump’s favorability among white evangelicals (-11), white Catholics (-12) and white mainline Protestants (-18) from the previous month. A source close to the Trump campaign told Politico that the numbers were “pretty concerning.”
Irrespective of any possible political motivations, religious liberty advocates have appreciated the Trump administration’s moves to loosen restrictions on worship.
Mark Rienzi, president of Becket which represented the Minnesota bishops in their challenge of the state’s coronavirus restrictions, praised Trump’s calling churches “essential.” He told the Register, “We are pleased that the federal government understands the principle that our clients in Minnesota have been fighting for — that religion is an essential service for the well-being of society that cannot be subordinated to the economic interests of the states.”
“We hope that local officials across the country will heed the president’s words and respect houses of worship, including our clients, as they reopen safely, responsibly and consistent with CDC guidance,” Rienzi added.
DOJ Warnings of Unequal Treatment
According to Becket’s latest count, there are now only eight states that are continuing to impose “facially unequal treatment on religious worship during the reopening process.” The Department of Justice sent warning letters to the governors of two of these states, California and Nevada, regarding their restrictions on churches. It also filed statements of interest in cases pushing back on church restrictions in Illinois, Virginia, and Mississippi.
On Tuesday evening, Nevada Gov. Steve Sisolak, a Democrat, amended his reopening guidelines after a letter from the DOJ warning that “the flat prohibition against 10 or more persons gathering for in-person worship services — regardless of whether they maintain social distancing guidelines — impermissibly treats religious and nonreligious organizations unequally,” since the state allowed other businesses to reopen at 50% capacity.
Similarly, Democratic California Gov. Gavin Newsom received a DOJ letter earlier this month pointing out that, according to Newsom’s plan, “places of worship are not permitted to hold religious worship services until Stage 3. However, in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets, and others are permitted to operate with social distancing. … This constitutes precisely the kind of differential treatment the Supreme Court identified in the Lukumi decision in which the government is not willing to impose on certain activities the same restrictions it is willing to impose on constitutionally protected religious worship.”
Newsom has since allowed houses of worship to reopen at 25% capacity or 100 people, whichever is less. The California Catholic Conference welcomed the news, noting that the reopening would differ according to diocese.
The DOJ recently filed a statement of interest in a case against Illinois Gov. J.B. Pritzker (D) for relying “on authority under the Illinois Emergency Management Agency Act to impose sweeping limitations on nearly all aspects of life for citizens of Illinois, significantly impairing in some instances their ability to maintain their economic livelihoods.” Chicago churches have filed lawsuits against the Democratic governor’s orders, which limit their gatherings to 10 people, and protested the fact that churches are not labeled “essential.”
Regarding the president’s urging to reopen churches, Pritzker stated that he was “as anxious as anybody to make sure that our churches, our mosques, our synagogues open back to where they were before COVID-19 came along,” adding, “We’re gradually moving in that direction. But there’s no doubt the most important thing is, we do not want parishioners to get ill because their faith leaders bring them together.”
A federal judge in North Carolina recently granted a temporary restraining order permitting two churches to hold indoor services of more than 10 people, which are disallowed under the restrictions ordered by Gov. Roy Cooper, a Democrat. “The record, at this admittedly early stage of the case, reveals that the governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship together indoors,” Judge James C. Dever III wrote in his ruling.
“We don’t want indoor meetings to become hotspots for the virus and our health experts continue to warn that large groups sitting together inside for long periods of time are much more likely to cause the spread of COVID-19,” Cooper’s representative said in response to the ruling. “While our office disagrees with the decision, we will not appeal, but instead urge houses of worship and their leaders to voluntarily follow public health guidance to keep their members safe."
“It does seem like a lot of these government officials are selectively cherry picking, which entities get to open and which ones don’t,” Michael Berry, general counsel at First Liberty, which has successfully represented many churches challenging coronavirus restrictions, told the Register. “When they declare a Home Depot or a Walmart is an essential business therefore they get to open but a place of worship which is essential to American life and central to our society [is not] … these governors and county officials are just declaring by executive fiat, ‘well I don’t think you’re important enough to open.’”
“There’s no constitutional right to go to the mall but there’s absolutely a constitutional right to free exercise of worship,” he said.
Berry said that the president’s comments on the issue were “a recognition that as the nation begins to reopen that places of worship of all faiths should not be left out.”
“There’s always going to be an appropriate balance between public health and constitutional liberties and freedoms and I think that that’s what the administration is trying to do,” he said.
Minnesota Bishops’ ‘Good Example’
In Minnesota, Democratic Gov. Tim Walz stated Saturday that “deeming houses of worship essential services” was “up for debate in this country.” However, he did allow limited public worship gatherings, but only after the bishops of Minnesota said that they would defy his restrictive order against such gatherings. Public Masses will resume at one-fourth of church capacity.
“The Catholic bishops of Minnesota believe that the previous limitation on faith-based gatherings to 10 people unreasonably burdened the Church’s ability to fully meet the sacramental needs of our faithful,” Archbishop Bernard Hebda said in a May 23 letter on the matter.
“As allowances were made for other, less essential activities, it seemed to many that the life of faith was receiving unequal treatment,” he continued. “The new executive order removes that unreasonable burden on the Church and allows us to bring the Eucharist, the food of everlasting life, to our community.”
Robert George, the McCormick Professor of Jurisprudence at Princeton University and former chairman of the U.S. Commission on International Religious Freedom (USCIRF), told the Register that “constitutionally, the governors and other state officials are required to be evenhanded and fair in their treatment of different entities whether those are businesses or churches and other houses of worship.”
“There’s a legitimate place for DOJ involvement supporting the churches,” added George, who is Catholic. “There’s a legitimate role for the president in using his bully pulpit and speaking out on behalf of constitutional principles.”
He praised the “good example” of the Minnesota bishops, saying that “the best way to defend your rights is to exercise them and especially to exercise them when they are being violated and to exercise them in defiance of those who are unconstitutionally violating them.”
In that case, he said, “there was a clearly discriminatory treatment of churches, the bishops understood this, and they simply defied an illegal order, an unconstitutional order. Now, something like that should never be done lightly but this was a case where it was clear.”
Bishops in other states faced with similarly unjust restrictions “should demand equal treatment,” George said, “not special treatment but equal treatment so if the liquor store is open, the church has to be allowed to open.”
Lauretta Brown is the Register’s Washington-based staff writer.