WASHINGTON (Reuters) - When an evangelical Christian pastor was arrested in Florida for flouting a stay-at-home order aimed at curbing the new coronavirus, a conservative religious liberty group was quick to leap to his defense.
But the decision by Liberty Counsel to represent Rodney Howard-Browne, co-founder of The River at Tampa Bay Church, marks a split among religious liberty advocates, with others preaching caution on going to court in the midst of a global pandemic.
Other groups, including Alliance Defending Freedom and the Becket Fund for Religious Liberty have so far held their fire, saying states have strong interest in protecting public health as long as the government action is limited in time and scope, even as Sunday’s Easter holiday approaches.
Howard-Browne, who was arrested on March 30 after being accused of presiding over two services attended by hundreds of parishioners, is himself something of an outlier as most houses of worship have closed their doors in the interests of public health.
He was charged with misdemeanor offenses of unlawful assembly and violation of public health emergency rules for refusing to follow Hillsborough County’s stay-at-home order.
”We can’t throw out constitutional rights even in an emergency,” said Mat Staver, Liberty Counsel’s founder and chairman, in reference to the 1st Amendment to the U.S. Constitution, which protects freedom of religion.
Other religious-liberty lawyers say a public health emergency changes the legal calculation.
”The right of religious freedom doesn’t give you carte blanche to threaten the public health of your neighbors,” said Luke Goodrich, a Becket lawyer.
David Cortman, an Alliance Defending Freedom lawyer, said that although some local governments have overstepped, most have sought to accommodate religious groups as much as possible.
Various states, including Texas and Florida, provide exemptions for religious gatherings, while others allow for limited gatherings.
”Overall, various government agencies have done a good job. What ADF is trying to do is ensure everyone understands we are in a crisis and people need to be careful,” Cortman said.
Groups like ADF, which has a focus on conservative Christians, are on the lookout for any state or local orders specifically targeting religious groups, which would be an obvious violation of the 1st Amendment. If religious groups are treated the same as other secular groups, then it is difficult to argue that the state is guilty of discrimination, the lawyers said.
The government can also claim that in the face of a global pandemic it has a compelling interest in protecting public health that can override concerns about short-term infringements on religious freedom, they said.
Litigation over religious issues has been few and far between even as other legal fights have broken out on other divisive social issues including abortion and guns.
Media headlines have focused on the few churches that have remained open in various states including California, Ohio and Texas despite public health warnings. In Baton Rouge, Louisiana, Pastor Tony Spell has continued weekly services at his Life Tarbernacle Church in defiance of a state ban on gatherings of 10 people or more despite having been arrested last month for doing so.
Tension could increase this week as Christians celebrate Easter and Jews mark Passover. The Muslim holiday of Ramadan is also approaching.
Liberty Counsel’s Staver said most churches that closed their doors voluntarily did so on the understanding it would be for a period of weeks, not months.
”The longer that goes and obviously with Easter coming up you are going to see more frustration and questioning,” he added.
Maggie Siddiqi, who heads the faith and progressive policy initiative at the liberal Center for American Progress, said some states are accommodating religious groups too much and may be putting the public at risk.
”Viruses do not discriminate on gatherings based on whether they are religious or not,” she said. “Our public health response should be bans on gatherings whether they are religious are not.”