The legal groups were among those supporting more than a dozen state and federal lawsuits seeking to reduce or lift limits on in-person religious worship.
According to Collett, however, equality is one principle at the center of lawsuits from churches and religious communities challenging epidemic restrictions. The government “cannot restrict religious communities and activities more than similar non-religious groups and actions,” she said.
In the case of Greenville, Mississippi, the city allowed drive-in restaurants to operate under coronavirus restrictions but tried to fine attendees at a drive-in church service $500 per person.
“After legal action was initiated, the mayor reversed his positions. As U.S. Attorney General William P. Barr said in his statement supporting the churches, ’religious institutions must not be singled out for special burdens’,” Collett said.
It is “irrational and unconstitutional,” she added, to allow retail stores to open with social distancing requirements while prohibiting religious gatherings of more than 10 people in spaces built to accommodate 200 or more.
A more contested principle in these debates, said Collett, is the claim that religious beliefs, communities and activities are “uniquely valuable” and any restriction must have “greater justification,” like other First Amendment rights of speech and assembly.
“This is the principle that some governors and mayors relied on when they declared religious activities to be among the state’s essential services,” she said. “Under this principle, the government can temporarily shut down movie theaters and concert venues, while permitting worship services and public masses to continue.”
Garnett echoed these comments. Despite some outlier cases, religious communities “have agreed that reasonable, temporary limits on in-person gatherings are justified by public-health concerns.”
“Mainstream religious-freedom advocates and religious leaders agree that generally applicable, non-discriminatory restrictions on in-person gatherings may be applied to religious services.,” he said.
“They also insist, appropriately, that if our knowledge and the evidence are such that officials determine that some gatherings or group activities are permissible, it is wrong to discriminate against religious gatherings that are similar to those that are permissible,” Garnett continued. “There are lines to be drawn, of course, and comparisons can be difficult, but it would seem that if a casino or a theater can open safely then so can a religious gathering.”
Some of the legal arguments cited by the Center for American Progress themselves seemed to justify this approach.
(Story continues below)
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“As exemptions (for critical infrastructure) pile up, churches have a legitimate beef. When governments fail to apply burdens across the board, the argument that the government must restrict public gathering for worship in the name of the public’s health becomes less compelling,” the legal scholars Robin Fretwell Wilson, Brian A. Smith, and Tanner J. Bean said in a March essay quoted by the center’s staff. These scholars contended that this meant there needs to be “fewer exemptions, not more.”
CNA sought comment and clarification from the Center for American Progress.
Maggie Siddiqi, director of the think tank’s Faith and Progressive Policy Initiative and co-author of the two commentaries, responded:
“As our nation surpasses 100,000 deaths from Covid-19, we would urge states and localities to avoid allowing any large gatherings, including at houses of worship. Numerous outbreaks of the virus have been documented at houses of worship, even when congregants were attempting to practice social distancing. The right to religious freedom is not a license to spread the virus and put communities at risk. We applaud the leadership of the vast majority of houses of worship in our nation that are saving lives by continuing their services while keeping their building doors closed.”
Guthrie Graves-Fitzsimmons, another think tank co-author, was critical of the Trump administration’s religious freedom concerns about Centers for Disease Control guidelines.
In a May 14 commentary for CNN, Graves-Fitzsimmons said “the administration is once again trying to unfurl the banner of what it might describe as religious freedom, this time as cover for a premature push to reopen the economy.”