Nov. 12 (UPI) -- As the COVID-19 pandemic surges again in the United States, churches are fighting state and local orders that cap attendance at services at lower numbers than allowed at nonreligious places and events, such as stores and protests.
Governors and other officials who issue the orders say the restrictions are necessary to minimize the spread of coronavirus. But religious institutions across the United States have filed numerous court challenges since the spring arguing that the different capacity limits and social distancing requirements for them are unconstitutional.
U.S. Rep. Kevin Hern, R-Okla., has introduced a bill that would prohibit state and local governments from setting lower caps in the case of people who are exercising a First Amendment right. The Equal Opportunity First Amendment Act -- which would apply to orders issued during a national or state emergency -- also would allow those who allege they were harmed by unequal enforcement of a public gathering rule to sue in federal court.
"In many instances, Americans are confused and horrified as their local government allows large gatherings of people exercising their First Amendment right to protest but bans church services," Hern said in a news release. "In many communities, businesses and shopping malls are open but houses of worship still have a 10-person limit. These inconsistent ordinances are disproportionately harming communities of faith. If the First Amendment protects protesters, it protects worshipers, as well."
Hern is focusing on freedom of religion, but his bill also would ban discriminatory capacity caps for people exercising the First Amendment's other freedoms -- speech, press, assembly and petition -- according to GovTrack.us, a legislative tracking tool that is part of Civic Impulse LLC, which promotes civic participation and government transparency.
"Presumably, it also would ban stricter capacity in, for example, newsrooms," the website says.
The legislation, introduced July 30, has 24 co-sponsors in the House of Representatives, all Republicans. The bill is awaiting a vote in the Judiciary Committee. GovTrack.us estimates the odds of the legislation passing in the Democratic-majority House are low.
The United States is setting daily records for new cases of COVID-19 and more than 230,000 have died, according to Johns Hopkins University. With the holidays approaching, health officials worry those numbers will keep climbing.
Officials in many jurisdictions say that in the absence of a vaccine or a cure, emergency measures are needed to protect their communities from a virus that spreads easily and can be transmitted by a person who is asymptomatic.
Emergency measures have included stay-at-home orders; bans on indoor worship, including home Bible studies; face mask mandates; physical distancing requirements; and restrictions on the size of gatherings that sometimes have different capacity limits for religious and secular activities. Worries about the spread of COVID-19 through respiratory droplets has also led to bans on singing at services in some places.
In California, opponents of orders by Gov. Gavin Newsom that banned indoor religious services in 18 counties and set capacity limits in others say they are discriminatory. Under those orders, churches can feed and shelter and offer nonreligious counseling to an unlimited number of people, but cannot hold religious gatherings in the same building.
Paul Jonna, a Rancho Santa Fe, Calif., attorney and special counsel to the Thomas More Society, said the restrictions violate the right to the free exercise of religion. Protests are encouraged, but churches are subject to "draconian" rules, he said.
Many governors "just don't see the importance of churches" and don't take the First Amendment into account when deciding whether to place caps on religious gatherings, Jonna said.
In addition, Jonna -- an attorney at LiMandri and Jonna representing churches in three California cases on behalf of the society, a Chicago-based public interest law firm -- contended many of the reasons given for limiting religious gatherings are not supported by scientific evidence.
"Going to church is not more dangerous than going to the grocery store," he said. "It's clear to our experts that there is no science justifying treating churches differently."
He added: "If this current pandemic serves as a basis to shut down churches, we're setting a very dangerous precedent."
Trying to halt spread
Lawyers for California say the state's capacity limit is based on evidence that the risk of infection increases rapidly with larger groups and in settings in which people gather in close proximity for extended periods.
In a written declaration, Dr. James Watt, an epidemiologist with the California Department of Public Health, said most scientists believe that group singing, particularly in an enclosed space, carries a high risk of spreading the COVID-19 virus through the emission of infected droplets. Even normal speech can spread the virus, he said.
There have been multiple reports around the country of "sizable to large gatherings, such as religious services, choir practices, funerals and parties" that resulted in the significant spread of COVID-19, he said.
The declaration was submitted by the state in response to a lawsuit filed earlier this year by the LiMandri & Jonna attorneys on behalf of South Bay United Pentecostal Church, challenging California's four-stage reopening plan, which limited attendance at services. South Bay Pentecostal, a San Diego-area religious community, also asked for an injunction permitting it to resume in-person services pending resolution of the suit without having to adhere to a cap of 25 percent of building capacity or 100 people, whichever is lower.
After a trial judge and the 9th Circuit Court of Appeals denied the request, the case went to the U.S. Supreme Court, which ruled 5-4 against issuing the injunction.
Chief Justice John Roberts concurred with the majority, writing that the state had similar or more severe restrictions for comparable secular gatherings, such as spectator sports, and treated more leniently dissimilar activities, "such as operating grocery stores, banks and laundromats."
Mat Staver, an Orlando, Fla., attorney who is founder and chairman of Liberty Counsel, which litigates religious liberty cases, told UPI he supports the concept of the Equal Opportunity First Amendment Act.
He argues that churches have been subjected to unconstitutional disparate treatment and noted the U.S. Supreme Court said in a 1947 case that states and the federal government cannot "force or influence a person to go to or remain away from church against his will."
Federal judges are divided on whether prohibiting churches from holding services during the pandemic violates that standard, Staver said. As of mid-October, rulings on whether the different limits for churches violate the First Amendment have been issued in at least 73 trial court cases and by four courts of appeals, with dozens more cases not yet decided, he said.
The cases include a suit filed by Liberty Counsel on behalf of Pasadena, Calif.-based Harvest Rock Church challenging the state restrictions and asking for a preliminary injunction barring their enforcement pending resolution of the matter. After a federal judge denied the request, the case went to the 9th Circuit Court of Appeals, which also declined to issue an injunction.
In a 2-1 ruling on Oct. 1, the 9th Circuit said the evidence does not support the argument that the orders give comparable secular activity more favorable treatment than religious activity.
"The orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters," the majority opinion said.
In a dissent, Judge Diarmuid O'Scannlain noted the state insists that completely prohibiting indoor religious worship services in 18 California counties is necessary to fight the pandemic.
"Yet, in these same counties, the state still allows people to go indoors to: spend a day shopping in the mall, have their hair styled, get a manicure or pedicure, attend college classes, produce a television show or movie, participate in professional sports, wash their clothes at a laundromat and even work in a meatpacking plant," the judge wrote.
Elim Romanian Pentecostal Church and Logos Baptist Ministries, which filed a suit alleging Illinois Gov. Jay Pritzker's executive order capping in-person worship services at 10 people is unconstitutional, also asked for an injunction.
After a trial judge and the 7th U.S. Circuit Court of Appeals denied the request, the churches appealed to the U.S. Supreme Court. During the proceedings, Pritzker dropped the challenged restrictions, leading the high court to also decline to issue an injunction.
Because the governor refused to say he would not reimpose the restrictions, the churches filed a petition last month asking the Supreme Court to review their case and rule on whether the restrictions are unconstitutional.
Other churches have been more successful in their appeals. The 6th Circuit granted two injunctions to Maryville Baptist Church in Bullitt County, Ky., allowing it to hold parking lot and in-person services. And the 5th Circuit granted a request by First Pentecostal Church of Holly Springs, Miss., to host indoor services if it complied with the social-distancing requirements. (Several days before the ruling, the church burned to the ground in what investigators believe was an arson fire.)
Staver hopes the Illinois churches' petition, along with the differing rulings from the appeals courts, leads to an opinion that settles the issue of the restrictions.
"This case and the conflicts among the courts provide an excellent opportunity for the Supreme Court to step in and stop this abuse of the First Amendment," he said.