We must be alarmed that…the mayor of a major American city threatened to have the police take down the license plate numbers of cars gathered in a parking lot for an Easter worship service—people who were otherwise abiding by the CDC and other governmental guidelines. They are taking names. They are taking numbers. This is happening in America 2020.
A chilling headline ran over the weekend from CNN: “Louisville Police Officers to Record License Plate Numbers of Easter Weekend Church Goers.”
Over the course of this pandemic, I’ve consistently argued that churches should follow generally applicable shelter-in-place orders. In an article I co-wrote for The Washington Post, I stated that many of these orders and guidelines from the CDC do not violate religious liberty—moreover, Christians have a duty out of love of neighbor to comply with general policies that attempt to abate the spread of the coronavirus. Indeed, governments are justified in ruling that all mass assemblies ought to cease for a definable period of time. That is rational government policy.
If, however, policies target or single out churches and religious groups, this becomes an entirely different issue—it is an issue of an unconstitutional violation of religious liberty.
Indeed, the headline from CNN describes an actual threat against churches. Police officers were ordered to write down license plate numbers of cars that were present at “drive-in” worship services on Easter Sunday.
The idea of a “drive-in” service goes back to the 1950s and 60s, when figures like Robert Sculler had the idea to gather people together at a drive-in-theater in order to preach the gospel and hold what was considered a worship service. To be clear, my church did not attempt to have this kind of drive-in service on Easter—theologically, I don’t believe that is the most appropriate way for churches to gather.
The theological veracity of drive-in services, however, is not the issue. The issue is religious liberty.
Louisville Mayor Greg Fischer threatened to take action not against those who might violate the social distancing guidelines, but specifically those who otherwise would have kept those orders and participated in a drive-in worship service. As long as people remain in their cars and are of the same household, it is very difficult to see this as anything other than a specific targeting of religion and Christian worship services.
Indeed, other drive-through services are still allowed, including drive-through liquor services in Kentucky. If you can have legal drive-through liquor, it is hard to argue that you can’t have drive-in worship services.
Careful Christian and constitutional thinking are essential to thread the needle rightly, especially in the midst of a pandemic. During a national or global emergency, bad precedents can take root. Over the course of the last several weeks, government officials have breached the line, consistently threatening precious constitutional rights in the name of the common good. Many of these policies, however, specifically target and single out religion, mandating rules and procedures that are not applied to other sectors of the society.
Kentucky Governor Andy Beshear issued a strong warning against drive-in services, but he stopped short of placing them in the same category as a physical gathering in a room. Governor Beshear, however, made a critical error earlier in the pandemic when he said that churches should no longer meet—an order he did not, at least at first, apply to other mass gatherings like high school basketball games. Churches were singled out.
Policies that single out churches and religious organizations are patently wrong and unconstitutional. Since the middle of March, governors, mayors, county commissioners, and health departments continually issue orders that compromise religious liberty—a freedom that is not just one amongst other enumerated rights, but the first liberty enshrined in our constitutional order. Indeed, religious liberty is the liberty upon which all other freedoms depend.
In the state of Nevada, Governor Steve Sisolak banned drive-in services in a tweet made on April 8. Other such orders came around the nation—the language, however, is very important. Are these suggestions, advisories, or legal commandments? Or, in the case of Louisville, do these orders also come with the threat of police action?
It is hard to believe that this kind of language could be used by any American politician. Isn’t respect for religious liberty so deeply ingrained in the American mind that political leaders, regardless of party, would understand their duty to do everything possible to protect this fundamental freedom?
The threat of police force against those attending a drive-in worship service, however, is an unprecedented threat against religious freedom. Of all the mechanisms at the disposal of government, police action is the one that governments must not use without ample justification and constitutional foundation.
In the case of Louisville, it took a federal district court judge the day before Easter to issue a temporary restraining order against Mayor Fischer’s policy, stating, “On Holy Thursday, an American mayor criminalized the communal celebration of Easter.” To be clear, the Mayor of Louisville and the Governor of Kentucky have the authority and responsibility to issue generally applicable orders—orders that do not single out one specific group of people. Specifically threatening religious believers and congregations, however, exceeds their constitutional authority; they are demanding something of Christians that they are not demanding of any other sector in the community.
Indeed, in this specific case, congregations did not attempt to meet in person, in their worship centers, in complete defiance to the most basic guidelines from the CDC. Those guidelines against social distancing, moreover, came from a precedent established in the 1918 influenza epidemic that swept the nation. That sickness claimed the lives of far more Americans than is expected with COVID-19. It was during that epidemic that social distancing and the cessation of mass gatherings were established as helpful precedents that did not violate the constitutional freedoms guaranteed to religious organizations.
Pandemics can set a longstanding precedent; and attempts made by many states and jurisdictions—like banning drive-in worship gatherings—represent potentially dangerous precedent-setting policies that could undermine our constitutional order. In Mendocino County, California, for example, the public health authorities mandated that churches video streaming their services could not including singing.