Having represented churches around the country throughout this pandemic as they stood up to religious discrimination, we have frequently been asked to share our thoughts on what churches’ rights and responsibilities are as they consider reopening. Although much of this discussion focuses on what legal rights and responsibilities churches have as they transition into this new phase, it is critical to keep in mind that just because something is legal to do (even under our Constitution) does not always mean that it is wise to do.
First Liberty Institute has guidance entitled “Recommendations for Reopening Places of Worship,” available at www.firstliberty.org/covidresources/, that provides some practical, common sense suggestions for churches that decide to begin reopening. While some of the suggestions in that guidance may not be legally required, they can help churches assist their members—particularly their most at-risk members— in staying safe from this pandemic.
THREE REQUIREMENTS OF CONSTITUTIONAL STRICT SCRUTINY
Perhaps the question that we get asked the most about churches and COVID-19 is, “I thought religious exercise is protected by the Constitution. How can the government force churches to close?” The answer to this question, while somewhat complicated, also provides the foundation to understand the rights that churches
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