May 20, 2020 UPDATE: Under Gov. Andrew Cuomo’s New York Forward plan, the Governor intends to lift COVID-19-related restrictions on business and other activities through a four-phase, region-by-region process. On May 19, 2020, New Yorkers for Constitutional Freedoms joined pastors across the State of New York in calling upon Gov. Cuomo to (a) lift restrictions on worship services in regions that have not been severely impacted by the pandemic; and (b) lift restrictions on worship services as part of Phase Two, not Phase Four, of New York Forward in other regions. On May 20, 2020, Gov. Cuomo announced that religious gatherings of up to 10 people would be allowed beginning on May 21, 2020; however, the Governor added that large religious services would not be allowed to resume until a given region of the state had reached Phase Four of the New York Forward plan. Gov. Cuomo has encouraged faith communities to consider holding parking lot services or drive-in services.
During the coronavirus pandemic, New Yorkers for Constitutional Freedoms has fielded many questions about government restrictions on church services and other public gatherings. This blog post offers our insights on how the Christian community may best honor and worship the Lord, stand for religious liberty, respect the governing authorities (Romans 13:1), and protect public health throughout this devastating season.
When government takes actions that restrict religious freedom, the U.S. Constitution requires that those actions satisfy a two-pronged test. This is true even during emergencies like the present pandemic. The two pronged-test is this: (1) Does the government’s action advance a compelling state interest? (2) Has the government used the least restrictive means possible to advance that interest?
Without question, government has a compelling interest in stopping the spread of the coronavirus; more than 12,000 New Yorkers have lost their lives to COVID-19. The second part of the test is trickier, though. Has government imposed greater-than-necessary restrictions on religious liberty during the pandemic?
To halt the spread of the epidemic, Gov. Andrew Cuomo has banned non-essential gatherings. The Governor has also issued a guidance document directing churches to refrain from holding in-person services. Some might argue that the Governor’s ban on in-person church services is unconstitutional; given that indoor spaces like supermarkets are still open, the ban on church services could be viewed as an instance of unfairness. NYCF has not taken this position. We believe that to protect against the coronavirus, churches should refrain from holding in-person services during the pandemic whether or not the government orders them to do so. If the government were to order churches to stop meeting because it wished to prevent the preaching of the Good News, churches would have good cause to defy the government. If the government were to permanently ban religious gatherings, such a ban would be blatantly unconstitutional and could be rightfully resisted. That is not what is happening in New York, however. The Governor’s orders, while imperfect, are an effort to protect the public from a pandemic—not an effort to squelch the spread of the Gospel. Furthermore, a court might find that a ban on in-person church services truly is the least restrictive means available to protect the health of the public. For many churches, it would be impossible to hold in-person services in which churchgoers practiced social distancing by sitting or standing more than six feet away from each other.
The Governor’s guidance document also indicates that New Yorkers should not meet for worship in their houses. To the extent that this language is binding, NYCF believes it to be constitutionally problematic. Clearly, this provision does not use the least restrictive means available to protect public health, as it could even be construed to ban a family from praying and worshiping together in its own home. We have expressed our concerns about this language in a letter to Gov. Cuomo.
At least one county executive has ordered churches to refrain from holding parking lot services, arguing that such services have been temporarily banned by the Governor. NYCF does not agree that parking lot services are currently banned. We urge Gov. Cuomo to sign an order expressly allowing such services; such an order would clear up any confusion on the subject. NYCF believes that the best practice for churches that wish to meet during the epidemic is to hold online services. We do, however, believe that churches should not be barred from holding services in parking lots, provided that congregants remain in their cars with their windows closed. Parking lot services strike an acceptable balance between religious practice and the protection of the public. Furthermore, we have asked that the state allow drive-in movie theaters to open; some churches might be able to use those theaters for Sunday services while maintaining social distancing. We believe that any ban on parking lot services is vulnerable to a court challenge. We are encouraged by U.S. Attorney General William Barr’s statement of support for a Mississippi church whose congregants were fined for attending a parking lot service.
New York City Mayor Bill de Blasio recently threatened to permanently close churches that fail to comply with social-distancing requirements. We wrote to Mayor de Blasio to express concern about his over-the-top rhetoric. Government tends to grow, not shrink. It excels at taking liberties from its citizens—especially in the name of safety and security. Therefore, Americans should be careful not to surrender our liberties without just cause. When we must surrender certain liberties due to an emergency, we should only surrender them until the emergency situation is resolved.
Are there a handful of pastors and churches that have continued to hold in-person church services during the pandemic? Yes. With respect, NYCF urges such churches to reconsider their stance. Some church leaders that have taken this approach have needlessly lost their lives to the coronavirus. The available technology makes it possible for many churches to worship together, to pray together, and to study God’s Word together without placing anyone at risk of contracting COVID-19.
Please pray for our government officials during this difficult time. Despite its flaws, government is ordained by God. There is a way for Christians to honor both God and government. Let us pursue that path.