Looks like the First Amendment is going to be restored to the U.S. Constitution.

Um, that’s not how this freedom thing works. Image courtesy of Adobe Stock.

It’s about time.

As of this morning (update Saturday 5/23), places of worship in California will be allowed to resume full operations in Phase 4, which will be at some distant point in the future, likely the end of the year or sometime in 2021. Vague comments by state authorities hint the opening date may be after a vaccine is in use.

In Illinois, full worship services will not be allowed until after a vaccine is in use, with the governor acknowledging that will be 12 or 18 months from now.

Another state, I lost track of which one, put worship in the last category to reopen, along with concerts and stadium-filled athletic events.

Other states and counties, too numerous to bother gather articles for specific citation, have placed worship services low on the list of places to open.

It now looks like the First Amendment may be put back in the Constitution after having been removed by a wide variety of governors.

Several recent events for you to consider:

  • Catholic and some Lutheran churches in Minnesota will resume worship on May 24.
  • Around 500 California churches (primarily Protestant) are reopening May 31, with or without permission.
  • Roman Catholics in Orange County will resume Mass on June 14.
  • CDC issued guidance for worship services.
  • California governor is thinking about maybe allowing worship again. Will let us know Monday, May 25.

This discussion will be posted on several of my blogs.

Why fuss over something like gathering to worship?

If you think I’m being too harsh on the long list of governors and bumbling public health officials who won’t allow in-person worship, be advised that too many of my relatives and ancestors fought for our freedom to let American freedoms be trampled upon.

Three of my relatives I personally knew came home from war with life-long physical or emotional injuries. Each suffered until he died.

One of my ancestors died in the effort to crush slavery and rebellion. His blood is in the ground at Champion Hills, east of Vicksburg.

The price paid for our freedom is measured in blood.


Reclaiming the First Amendment

5/20/20 – Tyler Bursch, attorney representing four named advocacy groups and over 1,200 pastors in the state of California – A Letter to Gov. Gavin Newsom from Churches / Declaration of Essentiality / Reopening May 31, 2020 – Letter indicates it is been signed by more than 1,200 pastors.

Ten pastors and one rabbi are explicitly mentioned in the second paragraph. Three of them are from my immediate area. All of them appear to be representing large communities of faith.

Letter explains in  six paragraphs there are second order effects of the shutdown, which particularly include deteriorating mental health.

This section includes the following comments:

“Without the checks and balances of the courts and legislature, the clergy now stand as a counterbalance to unchecked regulatory action.”


“We do not intend or desire to be mere contrarians, but we intend take our appropriate role in the governance of our state. With you, we struggle with finding the right balance of public safety and individual liberty considering the effects of COVID-19 and the clergy we represent collectively agree to pray for you as our governor to receive divine guidance and consider why we believe your Executive Order is unconstitutional, but more importantly, detrimental to the health and safety of California families.” (Emphasis added)

The letter then spells out the legal basis why the governor’s order violates the Constitution. Letter also spells out the legal argument, which will be familiar to many readers of this blog, which placed limits on what actions governments may take which place specific restrictions on religious organizations.

A few specific comments as highlight, with all footnote references removed for ease of reading:

“The First Amendment to the U.S. Constitution prohibits government actors from enforcing any law prohibiting the free exercise of religion. Fundamental to the free exercise of religion is the right to gather and worship.  The Executive Order violates the First Amendment of the United States Constitution because the Order is not narrowly tailored to serve the County’s interest in preventing the spread of Coronavirus.”


“Laws burdening the free exercise of religion that are not neutral or generally applicable are subject to strict judicial scrutiny.  [T]he minimum requirement of neutrality is that a law not discriminate on its face.” A law “lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.” The Executive Order lacks facial neutrality and general applicability because the “Essential Critical Infrastructure Workers” (ECIW) list expressly targets religious gatherings by narrowly permitting “faith-based” activities that stream services online but prohibit in-person services, even if they strictly follow CDC and social distancing guidelines. In other words, religious gatherings or assemblies of any size are specifically prohibited, except for the few persons providing virtual worship services.” Meanwhile, a host of other in-person secular gatherings are permissible under the ECIW as discussed in the facts above.”

Strict judicial scrutiny means courts will skeptically evaluate any rules that are specifically adverse to religious organizations.

In other words, letter is asserting that if you consider settled law in the United States, the orders in California would fail and be overturned if subject to court review.

Another nine paragraphs explain the “individualized government assessments” issue. My extremely condensed, non-attorney summary of this long discussion is evaluation of the state actions from a different direction indicates the restrictions on churches are overbroad and would be overturned if reviewed by a court.

In short, the letter declares the state actions are illegal under federal law.

The letter then announces worship services will resume in these houses of worship on 5/31/20:

“Again, we believe you are attempting to act in the best interests of the state, but the restrictions have gone too far and for too long. In order to restore the proper balance between public safety and individual liberties, the clergy we represent have declared their intent to begin holding in-person church services beginning on Sunday, May 31, 2020. All services will be held in compliance with CDC and state guidelines for social distancing as is required of ‘essential businesses.’ “

5/21/20 – Victory Girls Blog – Churches Pushed Back Against Coronavirus Edicts – Rules in Minnesota apparently are going to open up non-church businesses before churches are allowed to have more than 10 people on campus.

Roman Catholic and Lutheran Church-Missouri Synod officials separately announced congregations in the state may resume worship services on May 24. Congregations will worship at no more than 33% capacity.

The governor will not allow worship services to have more than 10 people participate while malls and certain retailers can operate at 50% capacity. On June 1 bars, restaurants, and salons can operate but at reduce capacity.

Religious worship? Still 10 people.

In his public letter, the Archbishop of St. Paul and Minneapolis pointed out the governor’s orders are aimed at religious organizations:

“It concerns us, however, that we still are without a clear roadmap, metrics, or definite timeline from your administration about a phased re-opening. Executive Order 20-56, moreover, seems to have taken a step backward, imposing an explicit prohibition on faith-based gatherings where none had existed.”

In other words specific restrictions are put in place on places of worship while restrictions are relaxed for businesses. A federal court would not look kindly on that action.

District President of the LCMS also pointed out the intentional, deliberate, disparate treatment applied to churches:

“We were disappointed to find that instead, you allowed retail and other non-critical businesses to open, setting a plan in place for bars and restaurants to reopen while limiting churches to meetings of ten people or fewer.”

5/22/20 – Orange County Register – Dioceses of Orange will allow parishes to hold public Masses starting June 14 – A three-phase plan will allow our Roman Catholic brothers and sisters in Orange County California to start worshiping on June 14, including vigil Masses on the 13th.

The Bishop continued the official dispensation which excuses Catholics from the obligation to attend Mass.

This will allow each person the latitude to determine when it is safe to return to Mass based on each person’s risk assessment (wow, check out that freedom thingy again).

So you can see there is some serious pushback gathering against restrictions imposed by many states against faith-based communities.


Federal efforts to reinstate

The widespread pushback apparently generated response at the federal level…

5/21/20 – AP – Trump declares church is “essential,” calls on them to reopen – During an impromptu press conference, the president described places of worship as “essential” and asked governors to reopen worship this weekend, meaning 5/24/20.

He also threatened to override the orders of any governor who did not do so. There is a legally dubious assertion, since the authority under our federal system for police powers clearly puts responsibility for opening or closing businesses, churches, synagogues, and mosques within the purview of each state governor.

On the other hand the public comment puts lots of pressure on governors to let people of faith resume in-person worship services.

The above comments were rapidly followed by…

5/22/20 – Center for Disease Control – Interim Guidance for Communities of Faith – CDC gives a couple pages of guidance on how worship services can be resumed. Opening paragraph and multiple comments to the document emphasize that any changes in worship practices need to be made in light of the beliefs of a particular faith tradition. Consider this specific comment:

“Any decision to modify specific religious rights, rituals, and services should be made by religious leaders.”

In other words each faith tradition can determine how to modify its worship services. Those decisions are not up to any political or secular or public health department authority. This is another example of someone in a government position actually having read the Constitution.

(Yes that is sarcasm. Yes, it is intentional. Yes, with every day that passes and devastation from the lockdown expands it is increasingly clear that a wide range of government officials deserve every ounce of sarcasm that can be gathered and poured on their head.)

Guidance give suggestions on how to scale operations, maintain healthy hygiene including facemasks, cleaning, and promoting social distancing.

For example, places of worship should consider the possibility of decreasing or suspending singing or chanting because that may spread coronavirus by emission of aerosols. Something to consider seriously by each congregation in each faith tradition.

Guidance also has a variety of monitoring, safety, and cleaning suggestions. Serious consideration will need to be given to how to minimize sharing of items that cannot easily be cleaned between  each use, such as prayer rugs, offering baskets, or hymnals. Again, guidance repeatedly mentions any modifications must be consistent with beliefs of a faith tradition.


California may reinstate, possibly

The pushback by communities of faith, the president, and the CDC got attention in California…

5/22/20 – Daily Bulletin – Trump orders governors to open churches “right now.” Newsom says guidelines coming Monday – The governor indicated there will be new guidelines by Monday, 5/25. Article indicates he has been getting a lot of pushback from religious leaders across the state.

We will see what news Monday brings.


So, it looks like the First Amendment will probably, most likely, be restored in the very near future.

It is long past time to do so.

Leave a Reply

Your email address will not be published. Required fields are marked *