What exactly does the First Amendment mean for Churches during COVID-19?

February 28, 2021

The global pandemic has presented many challenges to our way of life. Work, family, community — nothing seems to look like it once did.

For millions of Americans, going to Church on Sunday was as routine as work and time with family. Religious ceremonies across the nation have been a source of spiritual, emotional, and social healing.

In March of 2020, most churches in America followed President Donald J. Trump's plea to help mitigate the spread by closing their doors and going completely virtual. While inconvenient, going online for a few weeks was a collective sacrifice the Church made. Little did they know the “15 Days to Slow the Spread” would become 9 months and counting.

In May, an organization called “Church United” called for the re-opening of churches across the State of California, and on Sunday, May 31st (Pentecost Sunday), over 3,000 churches opened their doors for the first time in 3 months.

Does the Church have a legal right to gather in the midst of a pandemic?

This question has been asked and debated since March of 2020 with little collective clarity on the subject. Opinions raging with emotion cannot answer this question, but the Constitution of the United States can.

Clergy, legal pundits, and religious scholars have pointed and debated the basis what the First Amendment of the Constitution provides to religious institutions during a time of crisis.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Constitution of the United States, Article I

When you begin to pull at the threads of this masterpiece, one phrase stands out: free exercise thereof.

The phrase is under the legal framework of what pundits refer to as the Free Exercise Clause. It’s implications for religious institutions, their sovereignty of action, and their autonomy are fascinating.

Michael William McConnell is a constitutional law scholar who served as a United States Circuit Judge of the United States Court of Appeals for the Tenth Circuit from 2002 until 2009. Since 2009, McConnell has served as a professor and Director of the Stanford Constitutional Law Center at Stanford Law School.

In 2002, he published “Religion and the Constitution” with a group of legal scholars to provide a sound understanding of the relationship between government and religion within the framework of the Constitution. What he notes about this Free Exercise Clause should provide a sigh of relief to clergy and churches across America:

The Clause protects not just religious beliefs but actions made on behalf of those beliefs. More importantly, the wording of state constitutions suggest that “free exercise envisions religiously compelled exemptions from at least some generally applicable laws.” The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons.

Michael McConnell not only claims that the Free Exercise Clause protects the rights of Americans to engage in religious rituals but also gives the Church sovereignty in its expression, even if that expression violates the law.

Some have claimed the danger in this reality is that it allows religious institutions to engage in violent behavior in the name of religion, such as what we’ve seen abroad with the Islamic State of Iraq and the Levant in its terrorism activity. This is a naive and over-exaggerated viewpoint, and to compare those actions with the Church continuing to meet during a pandemic is unpolished.

Others argue the constitution protects religious rights from federal regulation or intervention, but not individual states. Again, this argument shows an inadequate understanding of constitutional law. Under the 14th amendment, the constitution was made applicable to the States.

To take this point further into the legal spectrum of credibility, let us turn to legal precedent through a recent United States Supreme Court Case: Wisconsin v. Yoder.

Legal Precedent: An Amish Anomaly

In 1972, members of the Old Order Amish community, along with the Conservative Amish Mennonite Church, were convicted of violating the state of Wisconsin’s school-attendance law, which required children to attend school until the age of 16.

The Old Order argued that: (1) requiring their children to attend school until the age of 16 would expose them to worldly influences and (2) violates the rights they possess under the First Amendment under the Free Exercise Clause. Under the 14th Amendment, the state of Wisconsin was bound to the Free Exercise Clause.

If a State has a “compelling interest” that can withstand the free-exercise claim, there is a legal ground to make exceptions. The Supreme Court held that compulsory attendance, although important, could not withstand a free-exercise claim. The Supreme Court noted that the government’s interest in education could still be achieved only through age 14.

From this case, the Court applied this doctrine by this question: Has the gov’t significantly burdened a sincerely motivated religious practice?

The Supreme Court, in four landmark cases through 2020, has sided with religious institutions in New York and California, indicating that states cannot impose stricter standards on churches than they do other establishments. In one of the court filings, they said “Religious gatherings … are still being treated unequally relative to numerous comparable secular activities, including attending school, working at a meatpacking plant, getting a facial, shopping at Costco, playing contact sports, casino gambling, and mass celebrations after a presidential election…”

The Coronavirus pandemic has been a devastating reality for the world. The Church provides a critical spiritual and mental service. The Church not only has the legal, moral, and religious framework to continue meeting in-person but has sovereignty to continue to do what it has always done: care for the spiritual awakening of millions of people — and in a year like 2020, I couldn’t imagine something more important than that.


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