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Freedom of religion is one of the great hallmarks of American democracy. It's right there in the First Amendment to the U.S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
But these are extraordinary times. As the coronavirus continues its deadly spread, state and local decrees have banned public gatherings. Social distancing is now the norm nearly everywhere.
Most churches have been doing their part to "flatten the curve," some by holding virtual services that parishioners can take part in from home.
But some insist on holding services in traditional fashion, defying governmental authorities and citing their First Amendment rights.
This raises an obvious question: Can the government shut down a church?
The answer, almost certainly, is yes. Government can do that in an emergency as long as churches aren't being singled out.
Michael Moreland, director of the Ellen H. McCullen Center for Law, Religion and Public Policy at Villanova University, told the Deseret News that ordered church closures don't violate religious freedom laws if their purpose is to save people's lives.
“So long as those restrictions are neutral and applicable to everybody, religious institutions have to abide by them," he said.
So, what happens if a church defies an order?
A Florida pastor, Rev. Rodney Howard-Browne, found this out recently when he was arrested and charged with endangering the public after holding two church services on March 29. At the time, Florida Gov. Ron DeSantis had not yet issued a statewide stay-at-home edict, leaving it to local and county governments to deal with coronavirus orders. Hillsborough County, where Howard-Browne's church is located, did issue a stay-at-home order and it was county sheriff's officers who arrested the pastor.
Two days later, however, DeSantis did issue a statewide order — but carved out an exception for churches. And because the state order trumps the county one, now Rev. Howard-Browne is saying he may hold services on Easter Sunday.
Another defiant pastor, Rev. Tony Spell of Life Tabernacle Church in Baton Rouge, Louisiana, ignored a state stay-at-home order with a Palm Sunday service April 5 attended by 1,220 people. Spell had already been arrested and charged with violating Gov. John Bel Edwards' order and has pledged to continue holding services.
In various locales, officials have found that church services are resulting in large COVID-19 outbreaks. Thirty-four parishioners of First Assemblies of God Church in Greers Ferry, Arkansas, tested positive for the virus following a single event there. In Sacramento County, California, officials estimated that nearly one-third of the cases there can be traced to church services.
Nevertheless, a number of states have created exceptions for churches, like Florida has. Delaware, Michigan, New Mexico, Ohio, Texas, and West Virginia are exempting churches from stay-at-home orders in varying degrees. Some, like Florida and Texas, say that church services are "essential." In Michigan, Gov. Gretchen Whitmer took a different path, exempting churches from prosecution if they defied the order.
John Inazu, a law professor at Washington University in St. Louis, told the New York Times that governments might have a problem shutting down churches if it looks like secular businesses deemed essential are allowed to have gatherings of people that churches can't. "There, I think, there's a very plausible religious freedom claim," he said.
Most churches are doing their part to minimize the coronavirus impact while tending to their parishioners' spiritual needs. They have created virtual services and drive-up services with sermons delivered via loudspeakers.
But some defiant pastors will continue to preach from their pulpit to parishioners packed together in pews. Because they can.