Why States Should Protect Religion As ‘Essential’ During Emergencies

COVID-19 has exposed numerous fissures in American society, including one that runs to the core of what our nation is founded on. In their responses to the pandemic, many government officials revealed blatant disregard for — and in some cases, outright hostility towards — something many Americans consider essential to their lives: religion.

In Nevada, for example, the governor allowed casinos to open at half capacity and welcome thousands of gamblers, while churches were limited to a mere 50 people, regardless of the church’s size or its health and safety precautions. Indianapolis prohibited churches from having gatherings of more than 25 people, even outdoors, while shopping malls and department stores were allowed to operate at 50% capacity. And the governor of Washington threatened churches with criminal penalties for offering worship services even as he allowed cannabis retailers and breweries to open as “essential businesses.”

These more stringent restrictions on houses of worship have little, if anything, to do with health and safety. They have everything to do with disregard for religion.

This kind of hostility towards religion is wrong. And fortunately, the U.S. Supreme Court agrees. In 2020, the Supreme Court ruled that states cannot treat religious organizations worse than secular ones during an emergency. This led other courts to recognize that important rights are violated when states close church doors while opening those of hundreds of secular businesses.

For example, the U.S. Court of Appeals for the 9th Circuit heeded the Supreme Court’s ruling, striking down Nevada’s unfair restrictions because they were unconstitutional. These rulings are also in line with two other recent Supreme Court decisions, Trinity Lutheran Church of Columbia v. Comer and Espinoza v. Montana Department of Revenue, where the high court held that states could not treat religious organizations worse than secular organizations just because they were religious.

But despite these rulings, some lower courts have still failed to protect churches from discriminatory state policies.

Churches and religious organizations are not superfluous to society. They are essential. Their services are vital, even more so during a crisis like the COVID-19 pandemic. Churches and religious organizations provide community, spiritual consolation, free counseling and therapy, help for those struggling with alcohol and drug addiction, grief and trauma support, charitable giving, and programs that serve the most vulnerable: children, women, the poor, immigrants, and the unemployed. Americans, religious and nonreligious alike, have desperately needed these resources and services in the past year.

Churches and religious organizations need to be free to serve and therefore need legal protection. Several states are considering bills that do just that: offer protections to ensure that religious groups and gatherings are not treated worse than others merely because they are religious.

One example is the Religion Is Essential Act, a bill that became law in Arkansas earlier this year, affirming that churches and religious organizations deserve protection and should not be treated worse than non-religious groups during emergencies. The bill allows states to impose neutral health and safety requirements that other essential businesses must follow, but it prevents states from selectively applying such requirements to churches and religious organizations and requires states to justify any burdens they place on religious exercise. Several other states from California to South Carolina are pursuing similar legislation to ensure that churches are treated fairly during emergencies.

In other words, if a community allows big box stores to be open at a limited capacity during a crisis, it must give the same consideration to churches and religious organizations. If a hardware store is allowed to operate at 50% capacity, churches must not be capped at 10% or 25%. If a grocery store is allowed to open at 25% capacity, a religious charity can too.

It is wrong for governments to treat these organizations worse than others. In crises, especially long-term ones like a pandemic, people of course need food and gasoline. But they also need consolation, access to counseling and rehab, and community support. Sometimes they need practical help, like money for rent or pantry essentials from a food kitchen.

Often, it is churches and religious organizations that meet these needs. Especially during emergencies, we need more, not less, of these vital services. Protecting these organizations protects every American, ensuring that in times of crisis, we have access to all essential services.

Greg Chafuen is legal counsel for the Center for Legislative Advocacy at Alliance Defending Freedom (@Alliance Defends).

The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.

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