by Lathan Watts, Director of Public Affairs for First Liberty Institute a non-profit law firm and think tank dedicated to defending religious liberty for all Americans and a Regional Fellow of National Review Institute. FirstLiberty.org
When those entrusted with the power to protect the God-given rights of the people do so selectively, arbitrarily picking and choosing which freedoms are worthy of protection and to what extent, then we are no longer a nation governed by the rule of law but by the whims of men.
President Lincoln once observed, “Nearly all men can stand the test of adversity, but if you really want to test a man’s character give him power.”
America now faces a convergence of calamities unlike any our nation has dealt with in nearly a century. Amidst the confusion, what has become clear is the character of those in power is being tested, and some are found as lacking in character as in their understanding of the Constitution.
The response to the COVID-19 pandemic from many governors and local elected officials is a primary example. From the first days of the crisis, houses of worship across the land closed their doors, went to online services, and sought to work with government officials to ensure the safety of their communities while trying to meet the spiritual needs of their congregations.
Not surprisingly, some officials abused their power and restricted religious liberty far more than other freedoms.
Attorneys from First Liberty Institute fought back, securing a critical victory for religious freedom and On Fire Christian Church in Louisville, KY. In that case, then U.S. District Court Judge Justin Walker granted a temporary restraining order preventing Louisville Mayor Greg Fischer from blocking On Fire Church from holding drive-in services on Easter. This was “the lawsuit heard across the nation,” the first case filed and won in defense of religious liberty amidst the COVID-19 pandemic.
First Liberty also filed a federal lawsuit against Greenville, Mississippi’s Mayor, Errick Simmons, on behalf of King James Bible Baptist Church, seeking to stop his unconstitutional order from prohibiting CDC-compliant drive-in church services. Later the same day, Mayor Simmons announced that he was rescinding his order, and allowing drive-in church services to operate free of government interference (provided that they continued adhering to proper CDC guidelines).
In another case of government gone wrong, First Liberty Institute and the North Creek Law Firm represented Joshua Freed at a hearing to challenge Washington State Governor Jay Inslee’s ban on religious gatherings of any size in response to the COVID-19 pandemic. Freed simply wanted to meet with one other person at a time, in his yard, to discuss the Bible and pray together, but Inslee’s order prohibited even that. As a result of the hearing, attorneys for Governor Inslee acknowledged that home-based Bible studies and prayer meetings were permissible, and that the Governor would not enforce the rules against home Bible studies on a one-on-one basis.
Our firm also represented churches in Texas, New York, and Illinois against overreaching government officials.
First Liberty was also called upon to stand with Ken Ham — CEO of Answers in Genesis, the Creation Museum, and the Ark Encounter in Kentucky — as they had an unfortunate “encounter” of their own with the outrageous wave of religious discrimination affecting churches, houses of worship, and religious organizations all over the country. Even though many shops and businesses in Kentucky were beginning to reopen, Ken Ham’s organization was not allowed to do so — leaving hundreds of furloughed employees out of work. As Ken puts it “We should have been free to open — but there was no reopening allowed for a religious organization like ours.”
So just like numerous other churches and religious organizations across the country, Answers in Genesis made First Liberty their first call — and thankfully, both the Creation Museum and the Ark Encounter were able to open shortly thereafter.
Even U.S. military service members aren’t immune to attacks on religious liberty. In a stunning display of anti-religious discrimination, the U.S. Navy recently issued an order which bans all service members from attending church and other religious gatherings indoors — even though other methods of gathering such as parties, protests, and mass transit — are allowed.
In response, First Liberty sent a letter to the United States Navy on behalf of active duty officer Daniel Schultz and numerous other service members across the nation asking the U.S. Navy to grant an accommodation so that they may attend indoor religious services.
From the very beginning of the COVID-19 pandemic we heard government officials at every level repeat some version of the mantra “the first priority of government is protecting the health and safety of the citizens.”
For example, New Jersey Governor Phil Murphy when asked by Fox News host Tucker Carlson how he could justify the arrest of 15 men attending the funeral of a Rabbi replied, “That’s above my paygrade Tucker; I wasn’t thinking of the Bill of Rights when we did this…”
And that’s the problem! The first priority, in fact the justification for the existence of government, is to protect the God-given rights of the people.
Of course, government is charged with protecting the health and safety of the citizens; but it must be done, as all government action, within the parameters of the Constitution. First Liberty Institute and our volunteer attorney network have taken elected officials to court all over the country to hold them to this standard.
What has also become clear in recent months is how some in government are willing to demand constitutional protections be enforced or abandoned depending on the subject matter. When business owners peacefully assembled to protest against the government imposed lockdown they were called everything from “selfish” to “domestic terrorists” and accused of valuing money over the lives of others.
But when protests over the death of George Floyd broke out in cities across the country, no such concern over public health could be heard. It was exactly the opposite response. Over 1000 public health professionals signed on to a letter specifically calling for governments not to use concern over the spread of COVID 19 to stop protest marches and other demonstrations:
“However, as public health advocates, we do not condemn these gatherings as risky for COVID-19 transmission. We support them as vital to the national public health and to the threatened health specifically of Black people in the United States. We can show that support by facilitating safest protesting practices without detracting from demonstrators’ ability to gather and demand change. This should not be confused with a permissive stance on all gatherings, particularly protests against stay-home orders.” (emphasis added)
The last sentence of that letter means either the virus can distinguish between protestors based on the issue they’re protesting or these public health officials care more about virtue signaling and adherence to political ideology than the public health.
Any American with a modicum of morality and respect for justice in a civil society was appalled at what happened to George Floyd. That same sense of morality and respect for justice is what causes many to recoil at the sight of violent arsonists and thieves masquerading as protestors attempting to cloak their crimes in lawful activity.
Many Americans are rightly perplexed by government officials who tell them they must sit at home instead of going to their house of worship while thousands march shoulder to shoulder in city streets across the country.
Faithful Americans reacted to initial restrictions due to COVID-19 with the same willingness to limit their activities as everyone else. Now, they simply want their freedom to attend houses of worship treated equally with the freedom to attend peaceful protests or to go to a casino — both of which have been deemed by some governors as more essential. That disparity must end.
As one federal judge observed, “Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are ‘open’ and which remain ‘closed.’”
The discrimination against houses of worship by governors and local officials across the nation has been appalling. Worse yet, this inconsistent application of the First Amendment can only exacerbate the division and strife that already plague our nation. The beauty of the First Amendment is in its protection of all religion, speech, press, and peaceful assemblies equally, without any regard to the popularity of the ideas. If our republic is to survive we must hold ourselves and those we entrust with power to the same principled standard.