Can Government Close Houses of Worship, and if Government Tries to Do So, Should Churches Comply?

Is It Moral?

Because the Scriptures command us to assemble together (Hebrews 10:25), and to gladly go to the house of the Lord (Psalm 122:1), the morality of closing houses of worship is, at the very least, highly questionable.

If closing churches were a necessary public health measure, this may pose a difficult dilemma.  But as will be demonstrated below, closing churches is not necessary to prevent the spread of COVID-19 and may in fact be harmful to the public good.

Is It Constitutional?

Jacobson v. Massachusetts, 197 U.S. 11 (1905), upheld the state’s authority to require vaccinations in the face of an epidemic, reasoning that unvaccinated persons could spread the disease to others.  However, Jacobson was decided in 1905, long before the courts developed the doctrine of strict scrutiny, and Jacobson must therefore be applied today in the light of strict scrutiny doctrine and given the highest protection known to the law.  As the U.S. Supreme Court said in Whitney v. California, 274 U.S. 357, 373 (1927), “The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights,” which means they can be infringed, if at all, only in furtherance of a compelling interest and, even, then, only if no less restrictive means is available.  See, e.g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 16-17 (1973); Dunn v. Blumstein, 405 U.S. 330 (1972); Wisconsin v. Yoder, 406 U.S. 205 (1972).  This protection is not in any way diminished by Unemployment Division v. Smith, 494 U.S. 872 (1990), because orders forbidding churches to meet are directly aimed at religion, and because such orders infringe upon not only free exercise of religion but freedom of speech and freedom of assembly as well.

Prohibiting churches from holding worship services is constitutional only when it is the least restrictive means of fulfilling a compelling interest.  As we will demonstrate below, less restrictive means are available.

Does It Protect Individual Freedom and Responsibility?

Besides preaching the Gospel of salvation, churches also teach the Word of God and thus inculcate lessons of good moral character and personal responsibility.  

Prohibiting people from attending church both diminishes personal freedom and also inhibits the church’s opportunity to teach personal responsibility.

Does It Strengthen and Preserve the Individual Family?

The Bible teaches that the family is the basic unit of society and that family members are to love and care for one another (Exodus 20:12,14; Ephesians 5:22, 33, 6:14).  Closing churches and preventing them from teaching about family responsibilities does not strengthen and preserve the family; it does the opposite.

Is It in the General Public Interest (Rather than only a Special Interest)?

Closing churches arguably may be intended for protection of the general public, but it is doubtful that it achieves that purpose.   Rather, closing churches may serve the public interest of those who oppose the church and want to diminish its influence.

We believe as a society that God answers prayer.  In times of crisis in the past, Presidents and Congresses have called for national days of prayer to ask God’s help:

*  On 3 October 1789 President Washington declared a National Day of Thanksgiving saying, “Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for his benefits, and humbly to implore His protection and favor….”

*  On 3 July 1849, in the face of a cholera epidemic, President Zachary Taylor proclaimed a National Day of Fasting, Humiliation, and Prayer, stating, “…It is recommended to persons of all denominations to abstain as far as practical from secular occupations and to assemble in their respective places of public worship, to acknowledge the Infinite Goodness which has watched over our existence as a nation, and so long crowned us with manifold blessings, and to implore the Almighty in His own good time to stay the destroying hand which is now lifted against us.”

*   On 30 March 1863 President Lincoln issued a Proclamation Appointing a National Fast Day, saying “whereas it is the duty of nations as well as of men, to own their dependence upon the overruling power of God, to confess their sins and transgressions, in humble sorrow, yet with assured hope that genuine repentance will lead to mercy and pardon; and to recognize the sublime truth, announced in the Holy Scriptures and proven by all history, that those nations only are blessed whose God is the Lord… .”

The public interest is best served by keeping the churches open to pray for God’s deliverance from the COVID-19.  

Is It Necessary?

As demonstrated elsewhere in this position paper, measures to combat the spread of COVID-19 may be necessary, but it is not necessary to close churches.  The nature of the medical necessity, and the proper response to it, is hotly debated by medical experts and political leaders, their opinions and recommendations vary greatly from one day to the next as new findings become available, and the nature of the remedy may vary by state and locale.

Should It Be Done on the State Level?

The Constitution does not delegate any power to the federal government to regulate churches.  The states may have a reserve police power to act for the safety, health, welfare, and morals of the people, but they may not exercise that power in ways that infringe the constitutional rights of the people, at least not without a compelling interest that cannot be achieved by less restrictive means.

Also, the states are better able to tailor regulations to the unique needs of their people and locales.  Regulations that may be needed in New York or New Jersey may be unduly restrictive in South Dakota or Wyoming.

Is This an Efficient and Effective Way to Do It?

Our answer is no.  Preventing the spread of COVID-19 may be a compelling interest, but it can be accomplished by less restrictive means:

  • Churches can meet and worship while practicing the appropriate social distancing and other safety measures.  Restrictions of fewer than ten persons in a worship service are definitely not narrowly tailored; even if they make sense for small church sanctuaries, they are unreasonable and unnecessary for larger sanctuaries. Furthermore, it makes no sense at all to restrict attendance at churches but not restrict the number of people who may shop at a grocery store or liquor store.
  • Churches can hold drive-in services in which the attendees stay in their cars in the parking lot.
  • Churches can hold communion services in which the elements are placed in plastic bags and received without direct human contact.
  • Offerings can be taken, if necessary, using a pouch on an 8-foot pole.

Some churches have chosen to “livestream” their services so member and others can view them from their homes.  Some may believe this satisfies the Lord’s command in Hebrews 10:25 to not forsake assembling together; others believe it does not satisfy that command.  The First Amendment protects both in their beliefs.  Livestreaming may not satisfy the religious convictions of many, and many persons, especially those who are older, may not have access to livestreaming.  Churches are free to choose this option, but for many it is not acceptable.

When constitutional rights are at stake, government not only should but must use the least restrictive means of achieving its objectives.

The effect of closing down on business and social activities must also be considered.  Some would simplistically say the issue is dollars versus lives, but it is far more complicated than that.  An economic depression leads to hospital closures, denial of medical procedures, loss of jobs, business failures depletion of retirement accounts, and much else.  This leads to poor health, mental depression, suicides, and many other threatening life issues.

If Government Orders Churches to Close, What Should Christians Do?

Romans 13:1-7 commands Christians to obey civil government.  However, the command assumes that the civil ruler is commanding what is right and prohibiting what is wrong (13:2-4).  When the civil ruler forbids us to do what the Word of God commands, we must “obey God rather than men” (Acts 5:29).  See also, Exodus1; Daniel 3, 6; Esther 4:14-16.

As Daniel did in Chapter 1, we should try to work out our differences with authority when at all possible.  We should educate, negotiate, agitate, legislate, and if these don’t work, litigate.  But if none of these work, we must remember that while we are servants of government, we are God’s servants first.

Furthermore, Romans 13 is directed toward individual Christians, because Christians like other citizens are subject to civil government.  The church as an institution stands in a different relationship to government.  God has created the two kingdoms, church and state, each is a divine institution, and neither is subject to the other.  

As Luther wrote in “Secular Authority: To What Extent It Should Be Obeyed” (1523), “…these two kingdoms [church and state] must be sharply distinguished, and both be permitted to remain; the one to produce piety, the other to bring about external peace and prevent evil deeds; neither is sufficient in the world without the other.”   The functions of church and state are different but not incompatible.  In a crisis like this, each kingdom should work for the glory of God, the edification of man, and the preservation of sacred human life.  Unfortunately, we seem to be moving away from Luther’s and Calvin’s understanding that church and state are two kingdoms ordained of God (a view which is close to that of the Founders of our constitutional republic) and moving toward a view like that of Rousseau, who taught that the state is an evolving organism that stands above all other societal organizations (labor unions, clubs, schools, societies, of which the church is merely another of the same), and therefore the state has authority to regulate all other societal organizations including the church.  If so, the State is becoming our god.

State officials seem to assume, sometimes, that no one is safe unless they are in the protective care and regulation of the state.  But churches also care for their people, as do families.  As Judge James C. Dever III wrote 16 May 2020 in Berean Baptist Church et al. v. Cooper, No. 4:20-CV-81-D, p. 19:

The public has a compelling interest in preventing the spread of COVID-19.  Lives are at risk, particularly among the elderly and those with pre-existing conditions such as obesity, hypertension, and lung disease.  But the instinct for self-survival is strong.  The court trusts worshipers and their leaders to look after one another and society while exercising their free exercise rights just as they and their fellow citizens (whether religious or not) do when engaged in non-religious activities.  

Christians are subject to both kingdoms, church and state, so the state has limited authority over believers.  But the church as an institution is a separate kingdom and it is questionable whether the state has any authority over the church.  The church should be hesitant to concede that the state has authority to regulate the church.  But the church has a duty to protect the health and safety of its people.   In extraordinary circumstances, a church may decide that holding traditional services would jeopardize the health and safety of its people and others.  The church might then issue a statement that it is modifying its worship services, not because it acknowledges the authority of the state to regulate the church, but because of its own duty to protect health and safety.  Some might think this is splitting hairs, but the proper relationship between church and state is a vitally important issue.

It might be tempting to overlook this state encroachment as a minor infringement.  However, as James Madison warned,

It is proper to take alarm at the first experiment on our liberties.  We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revolution.”

  • James Madison, A Memorial and Remonstrance, 1785, Works 1:163.  

Restrictions on liberty are commonly imposed at times of war, epidemic, or other major crisis, because at such times people are likely to accept the restrictions.  However, such restrictions often remain after the emergency ends, or if not, the precedent for future restrictions is set, and future restrictions, sometimes more severe, are more readily accepted.  Soon, such restrictions become the rule rather than the exception.   The thought that churches might be closed each year because of flu season would have seemed ludicrous a few months ago, but now the possibility must be taken seriously.

As President Ronald Reagan reminded us,

Freedom is a fragile thing and is never more than one generation away from extinction.  It is not ours by inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people. Those who have known freedom and then lost it have never known it again.

Let us carefully guard the public health, but as we do so, let us make sure we keep liberty alive.

©2020 Used by Permission

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