Explainer: Religious liberty and Capitol Hill Baptist Church’s lawsuit in Washington, D.C.

By / Sep 23

This week, the Capitol Hill Baptist Church (CHBC) in Washington, D.C., filed a lawsuit in the U.S. District Court for the District of Columbia seeking relief from D.C. Mayor Muriel Bowser’s current order regarding places of worship. The congregation is working to find a way to legally and safely gather outdoors for services in Washington during the ongoing pandemic. Here is a statement from CHBC, made available on their website, regarding their efforts to begin gathering again in D.C.

Russell Moore, president of the ERLC, commented on the news of CHBC’s filing, “Capitol Hill Baptist Church has served as a model for all of us in engaging this matter with the governing authorities. They sought out a peaceable resolution and have consistently met and exceeded public health guidelines. The District of Columbia, sadly, has chosen to act inconsistently and arbitrarily, treating houses of worship by standards other than those necessary to maintain public health, thereby coming into conflict with First Amendment protections. Let’s pray that the District will quickly reconsider their actions, or that the courts will do so for them, and that the church and the government in our nation’s capital can both serve their neighbors freely in their respective spheres.”

Why is the church pursuing litigation?

Currently, Washington is in Phase Two of its COVID-19 guidance plan in which “places of worship can operate services and activities with up to 100 people or up to 50% of their capacity, whichever is fewer, with strong safeguards and physical distancing.” These limits apply to both indoor and outdoor services. The church is currently meeting outdoors each Sunday evening on the property of a sister church in Virginia because Mayor Bowser’s guidance prohibits a congregation of CHBC’s size from gathering outdoors in Washington.

What has the church done to try to resolve the situation before litigation?

CHBC last met indoors for a Sunday service in early March. In the days that followed, the church elders were in touch with the Washington government and, by that next weekend, made the decision to cancel all in-person Sunday services beginning March 15. The coronavirus had arrived in the United States, and the pandemic precautions were, rightly, accelerating.

Then, in June, as more was known about the virus and the safety of wearing masks, social distancing, and being outdoors, the church filed for a waiver from the city to gather for services outdoors. After not receiving an official response from the mayor’s office, despite many conversations with other city officials, the church resubmitted for a waiver earlier this month in September.

The resubmittal was done after the church established a record of meeting safely outdoors in Virginia with the precautions of wearing masks and social distancing. Unfortunately, on Sept. 15, though the city thanked CHBC for its efforts to mitigate the risk of spread of COVID-19 in their proposed gathering plans, the waiver request was denied.

What are the legal arguments?

The church’s legal complaint is that Washington’s guidance restricting religious gatherings is “violating its rights under the First and Fifth Amendments to the United States Constitution and the Religious Freedom Restoration Act.”

A critical note from the church’s filing is that “for CHBC, a weekly in-person worship gathering of the entire congregation is a religious conviction for which there is no substitute.” The filing then gives extensive explanation of the significance of the Sunday gathering for the life of the church, both throughout 2,000 years of church history and for CHBC specifically. 

The church argues that the mayor’s order applies more stringent rules to religious gatherings than it does to other similar social gatherings like restaurants or other outdoor gatherings, including protests. Large groups of people with a communicative purpose are permitted to gather outside without a size limit but churches of CHBC’s size are not. This is central to the church’s complaint—the district is treating similar gatherings differently. In Washington’s Phase Two guidance, the church’s complaint notes that, “houses of worship, which have a constitutional right to gather, are the only entity expressly encouraged to continue meetings virtually.”

CHBC makes clear that “the church takes no issue” with Mayor Bowser’s support of and participation in the protests and gatherings such as in June when part of 16th Street NW was turned into “Black Lives Matter plaza” or in August when people commemorated the March on Washington anniversary on the steps of the Lincoln Memorial. The church supports such exercise of First Amendment rights but takes exception to the government’s decision to favor only certain gatherings because, “the First Amendment protects both mass protests and religious worship.”

What is the church asking the court to do?

The church is asking the court to give CHBC permission to meet outdoors, with social distancing, masks, and other appropriate precautions. CHBC is asking the court to restrain the government from “prohibiting [CHBC] from physically gathering as a congregation in the District of Columbia if conducted with appropriate social distancing practices.”

How can Christians pray for CHBC and Mayor Bowser?

Christians can pray for this congregation in the nation’s capital who, after six months of public health prohibitions, is seeking to gather safely for services in the city where the church covenanted in 1878. The members of CHBC are making this claim as free citizens in a free state with constitutional protections for religious exercise and with a specific intention not to bypass all the means available to find resolution. Christians can pray for a quick and just resolution.

Christians can also pray for Mayor Bowser and her team of legal and health officials serving this great city. We all recognize the severity of this moment and are deeply thankful for the public authorities responsible for protecting people from COVID-19.

As we pray, we should consider that this week the pandemic reached a new mark as more than 200,000 of our fellow Americans have died from this virus. Such a statistic is difficult to grieve because it’s challenging to even comprehend. And yet, many people, myself included, have friends and family members who have or are now battling for their lives after contracting this virus. As the people of God we know that in such battles, we need our church communities. We need to pray together, provide meals for one another, support the nurses and doctors and pharmaceutical professionals providing healthcare, and yes, we need to gather together as the church.

Within this strange year, opportunities abound for Christians to love their cities and for churches to be a sign of the confidence the people of God have in Christ. In acting safely and speaking wisely, churches can meet regularly to share the gospel with a world burdened by a once-in-a-generation pandemic. It’s not too much for churches to ask that their government would treat them equally under the law.

What’s next for religious freedom in Nevada?

By / Sep 3

Under Gov. Steve Sisolak’s phased COVID-19 reopening orders, many businesses have been permitted to reopen at half capacity, including casinos, indoor theme parks, gyms, and restaurants. But religious services are capped at 50 people, regardless of the size of the facility or what other measures are taken to prevent the spread of COVID-19.

Practically, this means that if a casino’s maximum capacity is 2,000 people, 1,000 people may gamble at its tables and slot machines, while a church of the same size may welcome just 50 to a worship service.

In response, a church in rural Lyon County represented by Alliance Defending Freedom, Calvary Chapel Dayton Valley, sued Gov. Sisolak, arguing that the state’s COVID-19 restrictions on religious gatherings are unconstitutional because they treat religious gatherings worse than comparable secular activities and spaces, such as casinos.

Where is the litigation now?

The Nevada federal district court that initially heard the case denied the church’s motion for an emergency injunction, which would have halted the unequal treatment from the COVID-19 regulations and allowed churches to meet in person indoors at half capacity, the same as casinos and other secular spaces. The church lost its request for immediate relief again at the Ninth Circuit, and appealed to the Supreme Court by filing an emergency application for injunctive relief. The Supreme Court denied the motion, although four justices—Justices Thomas, Alito, Gorsuch, and Kavanaugh—filed dissents.

The case is now back at the Ninth Circuit, where the parties are completing briefing on the case and are waiting for the court to set a date to hear arguments.

What arguments is ADF making before the 9th Circuit?

Although the First Amendment prioritizes religious freedom, Nevada is treating casinos better than churches. At the very least, this Nevada church should be able to meet in person at half capacity while following certain health and safety protocols. The governor’s orders violate the church’s free exercise rights, show the governor’s preference of secular speech over religious speech, and prove that Nevada treats secular assemblies better than religious gatherings. As Justice Alito explained, “[t]he Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance.”

What’s next for this case?

The parties wait for the Ninth Circuit to set an oral argument date. Following the Ninth Circuit’s decision, the case could be appealed to the United States Supreme Court.

How should Christians be thinking about this situation?

The First Amendment provides broad and strong protections for religious exercise, and governments should ordinarily avoid any interference with a church’s worship practices. Indeed, religious freedom is a foundational, bedrock right that must be respected by our governing officials. Public officials also have the authority to protect public health and safety. These two public responsibilities may be in tension, but one does not negate the other; the First Amendment is not suspended even during a pandemic.

Throughout this time, we have counseled that civic leaders must honor and respect the First Amendment protections for churches just as churches must love their neighbors and their communities by working with civil leaders to do their part with respect to the pandemic.

But in Nevada, religious freedom is being violated. The state has one set of rules for casinos—a powerful interest group in Nevada—and another rule for churches. Thankfully, in most places, churches and state and local officials are working together to find ways to safely gather while protecting public health. We encourage pastors and church leaders to continue to build relationships with local officials. And if you believe your religious freedom has been violated, reach out to the leaders at ADF’s Church Alliance or head to ADF’s website to ask for legal help.

How do you know if your religious liberty is violated?

By / Jul 21

Almost everyone agrees that government has the responsibility to safeguard public health, and almost everyone agrees that government authority heightens in times of national security or public health emergency. At the same time, almost everyone would agree that no government’s power—even in emergency times—is all-encompassing. I’m often asked about specific real or potential government measures and asked, “Would this be a violation of religious liberty?” 

Sometimes those questions are easy to identify. If the government were to say, “Because the pandemic is the result of an offense against the storm-god, we need every citizen to offer a small sacrifice to Baal,” then that’s obviously a violation of religious liberty. Or, if a locality said that all houses of worship must be closed except for prosperity-gospel churches “because, Lord knows, we need some healing around here,” then that’s a violation of religious liberty too. Most situations, though, are not quite that easily discerned. 

Can governments temporarily suspend public gatherings (including churches) or cap their sizes? Yes, as long as there’s a valid reason to do so and as long as houses of worship are treated no differently than other, similarly-situated entities and as long as every reasonable accommodation is made for religious practice. Could a government, for instance, block off the entrance to a church that is on fire—to keep people from filing into the building to their deaths and to free up the streets for fire-trucks and ambulances? Yes. Could the government then keep that entrance blocked indefinitely after the fire is gone, because they don’t like the preaching on hell that goes on there? No. 

Could a government allow gatherings of people to assemble at houses of worship as long as there is a temporary suspension of singing? Perhaps, if the government shows reasonably that singing could faster spread the virus, thus endangering people in the community and if the same sort of mandate applies to concerts or glee clubs or musical dramas or marching bands or half-time sports shows. In short, the government could not say that singing must be suspended indefinitely—to keep any future virus from taking hold—because weekly singing isn’t “essential,” in their view. And the government could not allow a community presentation of Beauty and the Beast while prohibiting a Christmas cantata at First Methodist Church. 

Think of it this way: If there were a contagious and fatal poison somehow embedded in the North American supply chain for bread products, could the government stop the production and sale and consumption of bread until the crisis was over? Yes. But could the government mandate that churches use potatoes instead of bread? No. Moreover, suppose that the poison was identified and dealt with, and, while the crisis is over, there’s a scarcity of bread. Could the government allow bread to be used at restaurants but ban Communion? No. 

Can someone claim freedom of speech while listing the names of undercover CIA agents in a televised speech? No. Does that restriction on speech mean that the government can stop someone from criticizing the CIA? Also no. Religious liberty is imperiled both by apathy and by paranoia. Cliché metaphors (“Freedom of speech does not give you the right to yell ‘Fire!’ in a crowded theater”) can be abused to snuff out legitimate rights. But often they stick around precisely because they do point to something useful to remember. In that case, you just have to know which cliché tells the accurate story of your situation: the frog in the kettle or the boy who cried wolf? Both speak to something true, but there’s real trouble if you think you’re in the one situation when you’re in the other. 

This originally appeared in Russell Moore’s newsletter, “Moore to the Point.” Subscribe here to keep up to date. 

Church, state, and social distancing

By / Apr 11

This Holy Week, Christians are tangibly experiencing this extraordinary moment in American history. To combat the spread of COVID-19, our nation has taken dramatic steps to alter our normal rhythms of life. And as we’ve all now experienced, the necessity of social distancing has affected nearly every sector of our society. Things that were commonplace only a few weeks ago are either absent entirely or significantly altered. Restaurant dining rooms are closed. Remote work is mandatory. Americans are staying home. And in most cases, America’s churches have closed their doors.

Few of us could have imagined such a scenario mere months ago. There is no playbook for navigating life during a pandemic. And it is no stretch to say that all of us are finding our way through this moment at least partially in the dark. As an organization, we’ve said from the beginning that churches and Christian leaders are critical at this time. And we’ve encouraged Christians, especially pastors and Christian leaders, to take a posture of cooperation toward government and public health officials. We’ve urged the churches we serve to make every effort to help mitigate the spread of the coronavirus. 

Across the country, churches have willingly taken the steps suggested by the CDC and public officials, as well as our own organization, despite the very real difficulties and financial hardships such compliance has entailed. This does not include every church in every locality to be sure. Considering the overwhelming spirit of cooperation displayed by the vast majority of churches, it is nonetheless disheartening to see so much media attention and scrutiny directed toward the situations where cooperation has broken down. If anything, the actions taken by the vast majority of churches are commendable.

At the same time, we’ve also warned that government officials, in order to be effective in their duties, must be careful to avoid even the appearance of overreach. The separation of church and state requires a delicate balance of authority between the two institutions. In almost every case, government officials have acted cautiously to protect that balance. In others, the ERLC has successfully advocated for state and local officials to consider amending policies to better accommodate churches. Even so, it is apparent that in a very few places, there are officials who are not exercising the right amount of care in maintaining this cooperation.

Several weeks ago, New York City Mayor Bill DeBlasio threatened to fine and even “permanently” close churches and other religious organizations who failed to observe social distancing guidance. And while the mayor’s words drew the attention of some, many dismissed them as bluster in a high-pressure moment. As Russell Moore commented concerning DeBlasio’s threats, “He doesn’t have the authority to shut down churches and synagogues and he’s not going to do that.” Still, in recent days there have been concerning reports about elected officials who, in seeking our common goal of stopping the transmission of the virus, are acting and communicating in ways that can be counter-productive.

In response to the social distancing guidelines, churches in many places have tried creative ways to worship together and in limited ways to gather for Easter services. In most places, these alternatives are happening without controversy because local officials are working closely with religious leaders.

But in others, these alternatives are being opposed by local officials, raising questions about whether houses of worship are being treated in the same way as other businesses or activities. The government has a clear public health interest in restricting public gatherings. But even in times of emergency, officials must be sensitive to fundamental freedoms and tailor public health restrictions narrowly. We are therefore concerned about certain instances of aggressive action that both violate the spirit of cooperation these moments call for and erode trust in the capacity of local leaders to rise to the occasion. 

As Christians, we recognize that the scriptures call us to submit to the governing authorities (Rom. 13:1) and to live as good citizens (1 Tim. 2:2; Tit. 3:1). At the same time, the scriptures are more than clear that Caesar is not God, and our ultimate allegiance belongs not to any state but to a King and kingdom. 

Each county and city will approach this moment in different ways, with its own measures, restrictions, and requirements. And right now local leaders are working to take the appropriate steps to protect the people they were elected to serve. Governors, county commissioners, and mayors hold enhanced authority to protect their communities in times of emergency. They are also closer relationally and personally to those communities. 

Ideally, our system allows those closest to the problem to tailor their response to best fit the situation. And depending on the severity and nature of the threat, officials in different places will choose to respond differently to meet the needs of their communities. The benefit of pushing those decisions down to the lowest authority capable of taking the appropriate action is that it allows for more precise and calibrated decisionmaking than would be possible at the state or national level.

But of course, flattening the curve requires robust, good faith action on the part of citizens as well. Churches are a critical part of this. As Christians, we recognize that the scriptures call us to submit to the governing authorities (Rom. 13:1) and to live as good citizens (1 Tim. 2:2; Tit. 3:1). At the same time, the scriptures are more than clear that Caesar is not God, and our ultimate allegiance belongs not to any state but to a King and kingdom. 

We recognize that public officials are forced to make difficult decisions at this time. Every community’s risk profile is different with respect to COVID-19. But public officials must recognize the substantial power they wield and do all that they can to preserve the ability of churches to safely and uniquely minister in their communities. We encourage local officials to take the time to hear the concerns of pastors in their communities in order to offer guidance, and when possible to make reasonable accommodations. 

It has never been more important for pastors to support our government’s efforts to save lives by stopping the spread of COVID-19. And at the same time, the ability of Americans to worship strengthens our communities and sustains individuals through these difficult times. What is needed most right now is cooperation and good faith. We’ve already seen that the majority of churches are willing to do their part. It is essential that government officials view pastors and churches as allies, and not antagonists, in this collective effort and support their abilities to minister effectively to the greatest extent possible.