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.

Protecting your church against sexual orientation and gender identity lawsuits
By / Jul 1

In a recent New York Times article, constitutional law expert Eugene Volokh says:

If I were a conservative Christian (which I most certainly am not), I would be very reasonably fearful, not just as to tax exemptions but as to a wide range of other programs — fearful that within a generation or so, my religious beliefs would be treated the same way as racist religious beliefs are.

Volokh’s warning is jarring, but it need not send Christians into a panic. It should, however, steel our resolve to be prepared for what is coming our way after the high court legalizes same-sex marriage nationwide (as most observers expect it will do). That ruling will come down either Friday or Monday morning. But the legal implications of the decision won’t take a generation to unfold (as Volokh suggests). Christian churches, ministries, and schools will be facing serious legal challenges within very short order. In fact, they already are.

The ERLC has teamed up with ADF to produce an updated version of a resource designed to help ministries do just that—prepare. This resource is a 44-page booklet titled Protecting Your Ministry from Sexual Orientation Gender Identity Lawsuits. It’s a legal guide explaining how churches, Christian schools, and Christian ministries can get ready for the inevitable challenges to come. This booklet is very practical and provides a checklist that leaders should work through based on the kind of organization they serve. You can download the booklet here for free or read it below.

I would particularly encourage churches to make their way through the five point checklist that applies to them. Last night, I worked the elders of my own church through this checklist and identified a number of areas where we need shoring-up. I’m quite certain we are not the only church in this situation, and so I am hoping that this post will encourage you to be sure that your church is prepared.

You need to read the entire guide, but here’s is a summary of the five items that every church needs in order to be ready:

1. Statement of Faith

A statement of faith needs to include three elements: (1) a statement on marriage, gender, and sexuality, (2) a statement of final authority for matters of faith and conduct, and (3) a statement on the sanctity of human life. Be sure that your statement on gender identity establishes a normative connection between gender and biological sex. If your statement isn’t clear on that point, your church could be exposed to lawsuits related to transgenderism (pp. 5, 27 of ADF guide). Also, you not only need to identify the Bible as the final authority, but you also need to specify who is “the final human interpreter of that source for the organization” (pp. 6-7 of ADF guide).

2. Religious Employment Criteria

Your church can best avail itself of the First Amendment’s protection in employee disputes if you create and faithfully enforce religious employment criteria for every employee. That requires churches to do at least two things: (1) require all employees and volunteers to sign a statement affirming the church’s statement of faith and standards of conduct, and (2) create written job descriptions for every employee and volunteer position.

3. Facility Use Policy

If your church allows outside groups to rent or use your property, then you need to adopt a facility use policy. The ADF guide provides a helpful example of the kind of language that needs to appear in such a policy (see page 28 of the ADF guide).

4. Formal Membership Policy

If your church does not have a membership policy, you need to change that. Biblically, this should already be a priority for your church. You need to specify what the requirements for membership are, how one joins, how one resigns, and the procedures for church discipline. If all of this isn’t spelled out up front, your church could be exposed (see ADF guide pp. 17-18).

5. Marriage Policy

ADF recommends that churches adopt a comprehensive policy concerning the marriages that their pastors or ministers may solemnize or otherwise participate in. Again, the guide has a helpful example of such a policy that you can use as a model (see page 18 of ADF guide).

As I mentioned, you need to read the entire guide. It’s time to get prepared.