Courts overturn pandemic restrictions that discriminate against houses of worship

December 18, 2020

In issuing pandemic restrictions, governors in several states have violated the Free Exercise clause of the First Amendment by treating religious organizations less favorably than secular organizations. As the ERLC has repeatedly advocated in our engagements with governor’s offices and city halls around the country throughout this pandemic, churches must be treated the same as similar businesses, spaces, and activities. Fortunately, several recent court decisions have upheld religious liberty and overturned these non-neutral applications. The national turning point in this judicial shift was the religious liberty case decided by the Supreme Court the Wednesday before the Thanksgiving holiday, Roman Catholic Diocese of Brooklyn v. Cuomo. As more cases have worked their way through the federal courts, it appears this New York case has set a new standard for how such disputes should be resolved. 

The Roman Catholic Diocese case was based on restrictions imposed in October by New York Gov. Mario Cuomo. The governor issued an Executive Order that imposed severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons could attend each religious service, and in orange zones, attendance was capped at 25. While a house of worship in a red zone could have no more than 10 persons, businesses categorized as “essential” (which included such services as acupuncture clinics) could admit as many people as they wanted. In orange zones, churches were limited to 25 persons, while nonessential businesses could decide for themselves how many persons to admit into their facilities.

The Roman Catholic Diocese of Brooklyn filed an injunction against the order, claiming the restrictions violated the Free Exercise Clause of the First Amendment. The Diocese said the regulations treated houses of worship much more harshly than comparable secular facilities. They also noted that they had complied with all public health guidance, implemented additional precautionary measures, and had operated at 25% or 33% capacity for months without a single outbreak in their congregations. 

In a 5-4 ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court sided with the Diocese and prohibited the governor from enforcing the restrictions on religious facilities. In their majority opinion the court said that, “There can be no question that the challenged restrictions, if enforced, will cause irreparable harm,” adding that “even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

On Dec. 15, a three-judge panel of the Ninth Circuit Court of Appeals cited the New York decision in their unanimous ruling in favor of Calvary Chapel, a church in Nevada challenging their governor’s non-neutral pandemic restrictions. The ERLC has been involved in the Nevada church case throughout the year, as Jeff Pickering detailed in a recent piece, The good religious liberty news for churches in Nevada from the 9th Circuit.

In that case, Nevada Gov. Steve Sisolak had implemented pandemic reopening orders which allowed many businesses— including casinos, indoor theme parks, gyms, and restaurants—to reopen at half capacity. But for some other locations—including movie theaters, museums, and churches—the order capped attendance at 50 people, regardless of the size of the facility or what other measures are taken to prevent the spread of COVID-19.

The governor’s directive was later revised in a way that limited casinos and other businesses to 25% of fire-code capacity while houses of worship were restricted to 25% of fire-code capacity or 50 persons, whichever was less. For example, a casino that could hold 2,000 would be allowed to have 500 people while a church that could hold 2,000 would be limited to 50 people. 

Calvary Chapel Dayton Valley challenged the order in court, claiming the governor’s directive was a violation of the Free Exercise Clause of the First Amendment to the United States Constitution. The district court denied the church’s request for a preliminary injunction barring enforcement of the Directive against houses of worship, but that decision was reversed by a unanimous panel on the U.S. 9th Circuit Court of Appeals. 

The Ninth Circuit said in part, “The Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, arguably represented a seismic shift in Free Exercise law, and compels the result in this case.” Based on the injunctive relief, Nevada houses of worship will be allowed the same 25% limit as other facilities, without the 50-person cap.

Also on Tuesday, the Supreme Court overturned two lower-court rulings that had permitted states to enforce similar non-neutral restrictions against houses of worship. In a Colorado case, a federal district court had denied a request by High Plains Harvest Church to bar the state from enforcing capacity limits. A similar case in New Jersey that limited attendance at houses of worship to the smaller of 25% of capacity or 150 people, was also thrown out. In yet another case, decided earlier this month, the justices ordered a federal district court to reconsider the case of Harvest Rock Church, a Christian church with multiple campuses in California, that had challenged that state’s restrictions on indoor worship services.

“Tuesday’s orders are further evidence of the broader impact of the New York ruling,” says Amy Howe, a reporter that cover the Supreme Court, “which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.”

As the ERLC has stated since the onset of the pandemic in the United States, the First Amendment provides broad and strong protections for religious exercise, and governments should ordinarily avoid any interference with a church’s worship practices. For this reason, we repeatedly counseled that civic leaders should regularly assess whether restrictions and exemptions are applied consistently and in a way that respects First Amendment protections for houses of worship. For the same reasons, we have also encouraged state and local officials to issue guidance rather than mandates and to view churches and religious organizations as allies in the fight to combat the virus. 

The separation of church and state is a vital aspect of American life. Guidelines equip pastors and faith leaders with the tools they need to make the best decisions for their own congregations and parishioners. In issuing guidelines instead of mandates during a long-lasting public health challenge like the COVID-19 pandemic, government officials invite the cooperation of faith leaders without encroaching upon their authority or autonomy. But in any event, as the Supreme Court has recently indicated, it is critical that the government not discriminate against houses of worship by treating them differently than similarly situated secular entities.

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