Liberties Reporting on First Amendment freedoms

Shuttered churches to reopen

Religious Liberty | California, Minnesota resume worship after church bans challenged
by Steve West
Posted 5/26/20, 07:17 pm

In Los Angeles, you could line up at the local marijuana dispensary, purchase liquor, and shop at the local Walmart or Costco during the coronavirus pandemic but you couldn’t gather for church. California Gov. Gavin Newsom, a Democrat, changed that on Monday when he gave in to pressure and relaxed restrictions on in-person worship.

The new state guidelines allowing places of worship to reopen is pending approval from county public health officials. But they must limit attendance to 25 percent of building capacity or a maximum of 100 attendees—whichever is lower. And it’s still too soon to know which counties will give the go-ahead for in-person worship.

On Wednesday, more than 1,200 Jewish and Christian clergy sent Newsom a letter saying they intended to reopen for worship this coming Sunday and would follow the state and U.S. Centers for Disease Control and Prevention social distancing guidelines for essential businesses. Religious leaders argued the governor’s previous 10-person limit on worship gatherings was unwarranted since he has eased restrictions on businesses.

Newsom also faced continuing court challenges to the worship restrictions. On Thursday, two Calaveras County churches, Mountain Christian Fellowship and Refuge Church, filed a lawsuit challenging the governor’s shelter-in-place order. The next day, the 9th U.S. Circuit Court of Appeals ruled 2-1 to uphold a decision denying a similar challenge from South Bay United Pentecostal Church near San Diego. In his dissent, U.S. Circuit Judge Daniel Collins slammed the state’s “inflexible and overbroad ban on religious services.” The church filed an emergency motion on Saturday asking the U.S. Supreme Court to overturn the ruling.

Minnesota Gov. Tim Walz, also a Democrat, capitulated to similar organized pressure. After he allowed retailers to operate at half capacity but capped worship services at 10 people, the state’s Catholic Conference and two local districts of the Lutheran Church–Missouri Synod, which together represent more than 700 churches, told the governor they would resume in-person worship services this week. On Saturday, Walz issued a revised executive order allowing places of worship to open at a generous 25 percent capacity or 250 people, whichever is lower.

Eric Rassbach, vice president and senior counsel for The Becket Fund for Religious Liberty who wrote the governor and Attorney General Keith Ellison on behalf of the churches, said Walz’s compromise serves as an example for other states to follow. “Churches are not saying ‘we can do whatever we want,’” Rassbach said. “Churches want equal treatment, not special treatment.”

As of Thursday, only eight states prohibited in-person worship or subjected churches to unequal treatment in their reopening plans, according to a Becket survey. One holdout, Nevada, faced a new legal challenge as of Friday. Lawsuits are pending in other restrictive states like Illinois, where Chicago officials threatened Elim Romanian Pentecostal Church with closure under public nuisance laws after it resumed services on May 10.

Meanwhile, the Trump administration has renewed its pushback on states that deem worship “nonessential.” In a letter to Newsom on Tuesday, U.S. Assistant Attorney General Eric Dreiband of the Justice Department’s Civil Rights Division criticized California’s “pronounced unequal treatment of faith communities” in its handling of the pandemic. He called for accommodation of religious worship.

President Donald Trump on Friday urged governors to designate worship as “essential” and to allow houses of worship to reopen. Later that day, the CDC released revised recommendations for places of worship after the White House said the first version was too restrictive.

Associated Press/Photo by Michael Dwyer (file) Associated Press/Photo by Michael Dwyer (file) Salvation Army food distribution in Chelsea, Mass.

Assuring equal treatment

The U.S. Department of Labor last week issued new guidelines protecting federal employees and religious grant recipients.

The new regulations clarify that the federal government must treat religious organizations applying for grants the same as secular groups. Religious organizations don’t have to remove religious art, icons, scriptures, or other religious symbols in order to provide government-supported social services. It also notes that religious groups can govern themselves and select board members based on their beliefs.

The guidelines now follow Secretary of Labor Eugene Scalia’s directive to advance religious liberty in the day-to-day operations of the department, including ensuring reasonable religious accommodation for federal employees. Scalia, the son of late Supreme Court Justice Antonin Scalia, said the Labor Department must “acknowledge the central role that religion and religious freedom play in civil society.”

Alliance Defending Freedom counsel Greg Baylor said the new guidance offers legal shelter to churches and religious nonprofit groups like the Salvation Army that rely in part on federal grants to provide services like meal programs, after-school care, and homeless shelters.

In 2014, the Salvation Army, though admitting no wrongdoing, settled a decadelong lawsuit from former employees who accused the charity of pressuring them to follow its religious mission while they worked on government-funded projects. The new guidelines may curtail such lawsuits, ensuring an organization’s religious autonomy is not subject to attack just because it receives some government funds.

“Religious beliefs motivate many Americans to help their neighbors in need, and these individuals and organizations shouldn’t be forced to abandon their religious character or mission before partnering with the government,” Baylor said. —S.W.

Not in our town

A New Jersey township is facing accusations that its laws discriminate against its growing Orthodox Jewish community. On Wednesday, the U.S. Department of Justice filed a lawsuit against Jackson Township, N.J., in U.S. District Court contending that local ordinances prohibit dormitories for religious schools despite allowing nonreligious projects to build similar housing.

“Using zoning laws to target Orthodox Jewish individuals for intentional discrimination and exclude them from a community is illegal and utterly incompatible with this nation’s values,” said Eric Dreiband, assistant attorney general for the Justice Department’s Civil Rights Division.

Another New Jersey community, the Village of Airmont, is in the middle of similar litigation with Hasidic Jews over the expansion of a private school. Airmont already settled a lawsuit in 2005 alleging it used zoning laws to discriminate against the Jewish community. —S.W.

Jilted singer

The Court of Appeals of North Carolina upheld the dismissal of a church pianist’s defamation lawsuit, deciding it had no business getting involved in the conflict.

A dispute arose after music minister Alan Hix at Diamond Hill Baptist Church in Statesville, N.C., reassigned pianist Kim Lippard’s vocal solo to another choir member. Lippard alleged Pastor Larry Holleman and Hix damaged her reputation by making comments to congregants about her unwillingness to engage in a reconciliation process.

The three-judge panel found that the ecclesiastical entanglement doctrine outlined in the First Amendment to the U.S. Constitution prevented them from resolving the claim because it required weighing doctrinal or other church matters.

“We must remain cautious of deciding the truth or falsity of a religion’s internal communications because doing so risks chilling the religion’s ‘associational conduct' or putting our pen’s power ‘behind a particular religious faction,’” Judge Hunter Murphy wrote.

Chief Judge Linda McGee concurred in part but wanted to limit the ecclesiastical entanglement rule to matters of church doctrine, which would have allowed some of Lippard’s claims to go forward. —S.W.

Steve West

Steve is an attorney and freelance writer based in Raleigh, N.C. Follow him on Twitter @slntplanet or at his blog.

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