After covid-19 closed most of the nation's church doors, Pastor Rodney Howard-Browne continued to gather his flock at the River at Tampa Bay Church.
Eventually, the Florida preacher was arrested and charged with unlawful assembly and disobeying public health emergency orders.
Tony Spell, pastor of Life Tabernacle Church in Baton Rouge also defied limits on large church gatherings; he has been handed at least a half-dozen citations by authorities, according to news reports.
Both men argue that their activities are absolutely protected by the First Amendment, which safeguards the "free exercise" of religion as well as the right to peaceably assemble.
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The crackdown on ministers has drawn criticism from some Christian conservatives, including former Arkansas Gov. Mike Huckabee, who pointed to several steps Howard-Browne said he had taken in an attempt to minimize the risk.
Among them: installation of a $100,000 "hospital grade [air] purification system."
"While I think the prudent thing to do is to move to online services (which is what our church is doing), I think the government is on very thin ice to 'order' a church to close its doors," Huckabee wrote in an electronic message. "The case of the pastor in Tampa who was actually arrested for having church is alarming, especially in light of the things the church did to protect people. It makes no sense that in many states, abortion clinics and nail salons stay open, but churches are ORDERED to close."
"That should not happen in America," he said.
Others share that view.
Shortly after Howard-Browne's arrest (he was released after posting $500 bail), Florida Gov. Ron DeSantis defined "religious services conducted in churches, synagogues and houses" as "essential activities." In the Sunshine State, at least, congregating for worship is now allowable.
Houses of worship also enjoy special status in Arkansas. While allowed to open their doors in the midst of a pandemic, Gov. Asa Hutchinson has urged the state's churches to voluntarily comply with restrictions on large assemblies. Most have agreed.
While these exceptions have been granted, churches aren't entitled to these favors, First Amendment experts say.
States that limit nonreligious group gatherings can apply the same restrictions to faith-based organizations, according to John DiPippa, dean emeritus of the University of Arkansas at Little Rock Bowen School of Law.
When examining a law that infringes on a fundamental constitutional right, federal judges apply a standard known as "strict scrutiny," he said.
"That means that the government cannot restrict a constitutional right like religious assembly unless it has a compelling interest, and the way they're doing it is narrowly tailored toward that interest," he said. "If limiting groups of people is the only way, or perhaps the only effective way, to accomplish one of the most important things that a government can accomplish, then the government can do it."
Temporary restrictions on church gatherings, he said, would pass constitutional muster.
"The government's not banning just religious assemblies. The government is limiting all assemblies using a neutral benchmark, usually 10 people or more. So it's not singling out religion, and it's doing it for a compelling purpose -- public health in a time of pandemic. There is no other effective way to accomplish that goal other than limiting public assemblies. So, in this case, [the] constitutional right to assemble gives way to the overwhelming public need to control the virus," he said.
In the meantime, congregations can gather, online, to worship, noted Benjamin Marcus, Religious Liberty Specialist at the Religious Freedom Center, a Washington-based initiative committed to "protect[ing] the rights of people of all religious traditions and none."
During a pandemic, the right to assembly may be superseded by the need to save lives, he said.
"All of our rights are balanced against one another," he said. "Religious freedom is not absolute, just like no other freedom is absolute."
While pastors that violate public health emergency rules can be sanctioned, the punishments cannot be too draconian.
Last month, New York City Mayor Bill de Blasio threatened to "permanently" close worship sites that violate public health emergency rules.
Marcus expressed doubts that a permanent closure would withstand constitutional scrutiny.
Religion on 04/11/2020