After many spring 2020 state legislative sessions were cut short or refocused by the COVID-19 pandemic, some church-state separation opponents seem determined to make up for lost time this year.
Alongside bills that would create or expand private school vouchers, license discrimination in the name of religion, insert religion into public schools and other more typical measures to advance Christian nationalism, is a new category of legislation that undermines religious freedom: measures that prevent state officials from applying emergency and public health measures and restrictions equally to secular and religious entities.
The bills are a misguided response – and in many cases, Americans United would argue, an unconstitutional one – to public health orders issued during the pandemic by some state governors and other state and local health officials that temporarily limited in-person gatherings at a wide variety of settings, including but certainly not limited to houses of worship and other religious gatherings.
As Church & State was heading to press, such bills had become law or were awaiting a governor’s signature in at least five states – Arkansas, Montana, North Dakota, South Dakota and Utah.
Legislative efforts to grant special privileges to religion – even if those privileges could put the lives of others at risk – began last year early in the pandemic. Pennsylvania and North Carolina legislators both sponsored bills in May 2020 to hamper the ability of their governors to place any limits on religious gatherings. For instance, the Pennsylvania bill would have prohibited the governor from issuing emergency orders that “infringe on the right to assemble to worship according to a person’s faith” or “impact the ability to travel to or from a place of worship.”
AU’s State Policy Counsel Nik Nartowicz wrote to Pennsylvania lawmakers last June, urging them to oppose House Bill 2530: “It would single out religious gatherings for preferential treatment, putting public health at risk and violating both the U.S. and Pennsylvania Constitutions.”
Neither the Pennsylvania nor the North Carolina bills, nor similar legislation introduced in Louisiana, passed last year, but that didn’t deter legislators from pushing related measures this year. More than 60 bills that would grant religious exemptions or otherwise encourage special treatment to houses of worship during emergencies were proposed in more than half of the states this spring.
Arkansas’ House Bill 1211 was the first to become law, passing both chambers by early February (Republican Gov. Asa Hutchinson allowed it to go into effect without signing it). The bill, sponsored by state Rep. Mary Bentley (R-Perryville) and state Sen. Kim Hammer (R-Benton), prevents the governor from limiting “a religious organization from continuing to operate or engage in religious services during a disaster emergency.”
Bentley hyped the bill on her Facebook page and in the media, claiming she “thought it was important that we clarify here in Arkansas that we believe like they do that First Amendment rights aren’t canceled by a pandemic,” according to NBC-affiliated television station KARK in Little Rock.
Ironically, Hutchinson had never placed any restrictions on houses of worship in Arkansas. In fact, Americans United’s Public Policy Department wrote to Hutchinson in April 2020, urging him to stop exempting houses of worship from his public health orders.
“This existing religious exemption allows religious gatherings to continue under circumstances deemed too dangerous for secular gatherings, putting the public health at risk,” AU wrote. “We write to explain why this exemption is not only detrimental to public health but also unconstitutional.”
Several Christian nationalist organizations celebrated the Arkansas bill. Jerry Cox, president of the Focus on the Family-affiliated Arkansas Family Council, erroneously claimed the law “will help protect churches and religious groups from discrimination without hampering the government’s ability to respond to an emergency.” The Arkansas Prayer Caucus – a state affiliate of one of the national groups behind the Project Blitz legislative movement – celebrated the bill and Bentley, a caucus member, on its Facebook page.
Greg Chafuen, a lobbyist for Alliance Defending Freedom (ADF), not only praised the bill, but he also issued statements celebrating similar bills passed in North Dakota and proposed in South Carolina. As noted on AU’s “Wall of Separation” blog, a witness who testified in support of the Arkansas bill admitted the bill’s initial language came from ADF. Similar language can be found in other state bills, suggesting ADF was involved in drafting model legislation for friendly state legislators.
“We commend North Dakota for making it clear that officials can’t use a public crisis to discriminate against religious operations while promoting secular ones, and we encourage other states to pursue similar legislation,” Chafuen wrote on March 30, the day North Dakota Gov. Doug Burgum (R) signed Senate Bill 2181 into law.
North Dakota passed a different bill than that passed by the Arkansas legislature – it requires that any emergency orders that “substantially burden a person’s exercise of religion” must serve a compelling government interest and be the least restrictive measure the government can take. The orders also must apply equally to similar religious and secular entities and activities.
As AU’s Nartowicz noted in his letter to North Dakota legislators, the bill was unnecessary because it restates current law while creating vague and uncertain legal standards that could put the public health at risk in future emergencies or disasters. Still, the law is likely to have a chilling effect on elected officials and public health experts considering including houses of worship when they implement science-based best practices meant to keep a community safe.
In some states, attempts to exempt houses of worship from public health orders were worked into much broader bills. In South Dakota, Sen. Lee Schoenbeck (R-Watertown) said Senate Bill 124 was in response to the pandemic, but his bill about preventing government from “burdening” someone’s religious practices doesn’t include language limiting it to pandemics, public health orders or any other state of emergency.
Instead, as AU’s VP of Public Policy Maggie Garrett explained to the Conde Nast LGBTQ publication them., it’s modeled after the federal Religious Freedom Restoration Act that has been misused “to circumvent laws that protect LGBTQ people and others from discrimination in the workplace, when they are seeking government services, when they’re customers at businesses and other public accommodations, and when they’re seeking health care.”
LGBTQ rights and other advocates were vocal in their opposition to the bill, which was signed into law by South Dakota Gov. Kristi Noem (R) on March 10. Schoenbeck brushed aside concerns that people would be harmed by his bill: “I just got to tell you, I find it offensive when people play the LBGTQ-whatever card, or race card, or any of that kind of garbage, instead of dealing with the merits of what’s before you,” Schoenbeck said during a February committee hearing, according to the Sioux Falls Argus Leader. “And what’s before you is a bill that does nothing to discriminate, except to protect people and the free exercise of their religion.”
While legislative supporters claim these bills are protecting religious freedom, many faith leaders say they do the opposite. “The virus doesn’t pay attention to whether or not an event is religious. It doesn’t look at the door of a church and think, ‘I’m going to keep moving.’ I don’t think the rules should pay attention to that either,” the Rev. Brian Kaylor, a Baptist minister and editor of the Baptist magazine Word & Way, told the Utah-based Deseret News.
“I find virtual church to be very awkward, but, at the same time, what it means to love my neighbor is to keep them safe,” said Kaylor, who testified in opposition to several related bills in his home state of Missouri.
Twenty-seven national faith-based organizations issued an April 12 statement expressing “deep concern” about state legislation seeking to exempt houses of worship and religious gatherings from public health orders. Groups signing the letter included BJC (the Baptist Joint Committee for Religious Liberty); ADL (the Anti-Defamation League); Bend the Arc: A Jewish Partnership for Justice; Evangelical Lu- theran Church in America; Interfaith Alliance; Methodist Federation for Social Action; Muslim Advocates; National Council of Churches; Presbyterian Church (USA) Office of Public Witness; Unitarian Universalists for Social Justice; and the United Church of Christ, Justice and Local Church Ministries.
“Religious freedom is a fundamental American value, and the freedom to worship in accordance with one’s spiritual practices and traditions is a right of the highest order,” the groups wrote. “At the same time, religious freedom does not demand tying the hands of public officials who are trying to safeguard public health as they respond to unforeseen events like pandemics, natural disasters and other emergencies.
“This pandemic has been difficult for us all,” the open letter concludes. “We all wish to return to in-person worship services, but now is the time for religious communities to lead by example, taking proactive steps to keep ourselves and the broader community safe. These bills, which claim to protect houses of worship, do not make religious gatherings safer – to be sure, the pandemic acknowledges no religious exemption. We urge you to oppose these proposals as you respond to the pandemic.”