A Q&A for churches on government restrictions with a religious liberty attorney

Navigating the tension between church and state during a pandemic

April 15, 2020

Many church leaders feel tension between government restrictions related to COVID-19 and the fundamental right of religious liberty. Can the government prohibit in-person worship services? What about drive-in services or online streaming? This pandemic provokes many such questions about the rights and responsibilities of both churches and governments at every level, from D.C. to state governors and local public health departments.

To gain insight on the interplay between our religious liberty convictions and what public health requires during this coronavirus crisis, the ERLC posed several questions to Luke Goodrich, vice president and senior counsel at The Becket Fund for Religious Liberty. Goodrich is a veteran of multiple federal Circuit and Supreme Court victories and the author of Free to Believe: The Battle Over Religious Liberty in America. The ERLC works with Becket often on a range of issues and Russell Moore, president of the ERLC, serves on their board of directors.

1. What religious liberty protections do churches have right now—and what unique powers do government officials have—during a pandemic?

Churches have fundamental constitutional rights to the free exercise of religion and freedom of assembly. Those rights are often augmented by federal or state laws like the Religious Freedom Restoration Act. At the same time, these rights are not absolute. Just as freedom of speech doesn’t mean you can spread defamatory lies about your neighbor, freedom of religion doesn’t mean you can spread a dangerous virus to your neighbor. The government has authority to protect public health, and that authority must be balanced with the right of religious liberty. 

In practice, that means that the government has a strong argument that it can temporarily limit public gatherings, including religious gatherings, during a dangerous pandemic. As long as the government does so uniformly—not targeting religious gatherings for special enforcement or disfavor—courts are likely to say that the government has remained within its proper bounds. But if the government targets religious gatherings while ignoring similar nonreligious gatherings, or if it goes after certain kinds of religious gatherings that pose no threat to public health—such as a drive-in church service where everyone stays in their vehicles—that is a violation of religious liberty.  

2. How should government officials be thinking about honoring and accommodating religious liberty during a public health crisis? 

Government officials have a basic constitutional obligation to treat religious gatherings no worse than similar nonreligious gatherings and to allow people to exercise their religion. But that’s just the constitutional minimum. 

To fully respect religious freedom, government officials should recognize that religious groups are essential partners in caring for the vulnerable. They are providing emergency supplies, distributing food, offering coronavirus testing, running field hospitals, and caring for the elderly poor. Those services should continue unhindered. 

And religious groups are not just meeting practical needs; they are also meeting spiritual needs that are essential for human flourishing. Because of that, government officials should view religious services as essential, and look for ways to permit religious practices as much as possible, and as soon as possible, consistent with public health. That means allowing enough church staff to gather so they can stream services online—an activity that furthers public health by allowing many people to worship safely at home. It means allowing drive-in services and sacraments where proper health precautions are taken. And it means exempting religious gatherings from restrictions where appropriate—as many states have already done—and making sure that temporary limits on in-person gatherings are lifted as soon as safely possible.

Government officials should also avoid inflammatory threats against religious gatherings—such as threats to take down license plate numbers and quarantine those who attend services, or to shut down churches permanently. Such threats are unnecessary and unhelpful, and they only make it harder for churches and public health officials to work together.

Ultimately, churches should approach religious freedom conflicts the same way they approach COVID-19: not with fear of suffering but with calm confidence in the goodness of God. Neither a global pandemic nor a local bureaucrat can silence the gospel. 

3. What should churches consider when thinking about their religious freedom and their relationships with local governments during a crisis like this one?

During a widespread, fast-moving crisis like this one, there will inevitably be incidents of government overreach. Thus, churches must remain vigilant about infringements of religious freedom. As Madison said, “it is proper to take alarm at the first experiment on our liberties”—because a government that can violate religious liberty in a pandemic can violate it for other reasons too.

At the same time, churches must distinguish between real infringements of religious freedom and mere shadows. They must discern when to obey God rather than men (Acts 5:29), and when to obey the governing authorities (Rom. 13:1). A government that targets religious gatherings is infringing religious freedom. A government that imposes temporary limits on all gatherings in a pandemic is trying to protect public health.

Churches should also strive for peace with everyone (Heb. 12:14; Rom. 12:18). They should avoid using inflamed rhetoric or a posture of defiance to provoke a conflict with government officials who are attempting to navigate a pandemic. Instead, they should work with government officials, if possible, to find solutions that will enable them to continue ministering while still protecting public health. 

Thankfully, most churches have already done so, making major adjustments to their ministries to love their neighbors well—such as moving services online, following social distancing recommendations, and finding creative ways to care for the most vulnerable. Loving our neighbors, in turn, strengthens the case for religious freedom, as it shows that religion is essential to a flourishing society.

4. Let’s get practical. What if the government’s guidance is unclear or contradictory—like when a local municipality has stricter policies than state or federal governments? What should churches do then?

Churches should try to follow the government guidance that applies to them. If the guidance is unclear, the church can reach out to the relevant officials to seek clarification. Many states and counties have set up special inquiry email accounts for this purpose. For example, churches in California reached out to local officials to determine whether live streaming of services was allowed despite a shelter-in-place order, and the local officials there clarified that the church could have several staff members gather so they could stream their services online.

In many situations, if churches and local officials are willing to dialogue in good faith, they can find a solution and spare all sides the distraction of a public spat. Even better, they may be able to build cooperative relationships that bear good fruit over the long term.

5. What steps should a church take if they believe that their state or local authorities are infringing their religious freedom?

If a church faces an intractable violation of religious freedom, it needs solid legal advice. Organizations like Becket, Alliance Defending Freedom, and First Liberty can help churches assess their legal rights and, in some cases, work with government officials to find a solution. Becket has advised churches across the country behind the scenes about how to comply with local stay-at-home orders while still conducting services.

Churches should also count the cost of litigation. Becket represents all its clients free of charge, as do many other groups. But litigation can still draw time and attention from other efforts that may be more important to a church’s ministry. So litigation should be a last resort. 

Ultimately, churches should approach religious freedom conflicts the same way they approach COVID-19: not with fear of suffering but with calm confidence in the goodness of God. Neither a global pandemic nor a local bureaucrat can silence the gospel. 

Jeff Pickering

Jeff Pickering is the director of the Initiative on Faith & Public Life, a project of the American Enterprise Institute. AEI is a leading public policy think tank in Washington, DC and the initiative exists to equip Christian college students for faithful engagement in public life. Jeff moved to Washington … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24