Late Friday night a federal district court judge in Washington, D.C., handed down a religious liberty ruling that I hope will echo throughout the nation. One of the reasons is obvious—it upheld the religious liberty of the church and limited the degree of deference courts should grant public health measures as the pandemic drags on for month after month.
The other reason is less obvious, but in many ways equally important. It demonstrates how thoughtful Christians can engage in the public square and defend their liberty with conviction while also caring for their communities and demonstrating extraordinary patience with public officials. In other words, in one court case we’re watching what it’s like when Christian legal ends are pursued through Christian moral means.
As is my custom, let me state my biases up front. The church that filed suit is Capitol Hill Baptist Church. I know and respect a number of its members, and I’ve met its senior pastor, Mark Dever. It’s a good church, full of good folks. It’s a church that I would expect to do the right thing, the right way. And indeed it did.
If you’ve paid any attention to any aspect of the pandemic culture wars, you know that disputes about religious liberty and a proper Christian response to the draconian lockdowns began almost immediately after those lockdowns began. The defiant few gained national attention. One Louisiana pastor famously declared to his large church, as he encouraged hugging and close contact, that they were “raising up revivalists, not pansies.”
But the vast majority of churches and pastors did the right thing—rather than risk their congregants’ lives or risk their communities by hosting potential “superspreader” events—churches by the tens of thousands shut their doors, went online, and worshipped as best they could in truly unprecedented times.
Then the days turned to weeks, the weeks turned to months, and it became plain—especially as protests spread across the land, as states and cities began to open favored industries, and as we learned much more about how to hold events safely and mitigate risk—that in many jurisdictions religious liberty was under threat. Churches weren’t sharing the burden equally with other institutions—instead, they were facer greater burdens, even when they diligently offered to accommodate reasonable public health concerns.
Sadly, this disparate treatment has been facilitated and empowered by the Supreme Court. In July it even blocked a religious liberty challenge to a Nevada public health regulation that granted fewer rights of assembly to churches than it did to casinos. (Justice Neil Gorsuch’s dissent in the denial of cert is something to behold.)
The position of the court, early in the pandemic, was clear: “in areas fraught with medical and scientific uncertainties,” public health officials “should not be subject to second-guessing by an ‘unelected federal judiciary.’”
But what if the uncertainty fades, yet the restrictions remain? What if public officials flout their own guidelines with their own behavior? Then what is a church to do?
Some churches, furious at the disparate treatment, have chosen what one might call the Leeroy Jenkins approach—after the legendary video game comedy skit. They just charged ahead, gathered in-person (often without any social distancing or masking), and either dared the authorities to stop them or challenged the restrictions while simultaneously flouting even scientifically-sound health guidelines.
Thus, they became poster children of many of the problems with modern Evangelical political engagement. Certainly they are attempting to preserve religious freedom, but through a method that disregards the health and well-being not just of the congregants who (voluntarily) assemble, but members of the public who most certainly do not consent to potential superspreading events taking place in their communities.
To apply the interlocking obligations of Micah 6:8—act justly, love mercy, and walk humbly—preserving religious liberty is just, but it lacks mercy and reeks of arrogance to risk your congregation and community by defying reasonable safety measures.
Enter Capitol Hill Baptist. Rarely have I seen a legal dispute follow the Micah 6:8 model more precisely. Love mercy? Before litigation, it proposed a plan of outdoor, fully masked services, with congregants socially distanced by family groups. It represented a kind of textbook best practices approach for events in the age of COVID.
Walk humbly? It did not immediately demand its way. Instead, it demonstrated great patience—first seeking a waiver from D.C. large-gathering restrictions in June and then again on September 1 when the city failed to respond. Only after the city rejected its second waiver request did the church file suit.
And did the church act justly? Yes. D.C.’s regulations are both indefinitely onerous and unfairly applied. For example, it currently permits unlimited outdoor seating for restaurants, yet restrictions even on outdoor worship services are set to remain until a vaccine (or effective therapeutics) are widely available.
Moreover, as the church pointed out, not only has the city permitted a series of massive protests in the aftermath of the George Floyd killing (arguably there was nothing it could have done to prevent such an immense spasm of public anger), city officials have actively facilitated the protests, coordinated with protest organizers, and even participated in the marches themselves.
I love how Capitol Hill Baptist phrased its argument: “The Church takes no issue with Defendants’ decision to permit these gatherings, which are themselves protected by the First Amendment, and the Church supports this exercise of First Amendment rights. The Church does, however, take exception to Defendants’ decision to favor certain expressive gatherings over others.”
Or, to put it more succinctly, “Free speech for thee and for me.”
Last night, federal district judge Trevor McFadden granted the church’s request for a preliminary injunction against D.C.’s guidelines. The outcome was legally correct—and a vindication of the church’s strategy—but the reasoning was important and should provide a guide for other courts deciding other cases as the pandemic drags on.
For much of the pandemic, cities and states have defended otherwise-unconstitutional restrictions of constitutionally protected activities by referring to a 1905 Supreme Court case called Jacobson v. Massachusetts. In Jacobson the Court upheld a challenge to mandatory smallpox vaccinations and established a standard of judicial deference to public health rules in the face of disease outbreaks. Here’s Judge McFadden’s response:
[W]oven into Jacobson is the recognition that at the time the plaintiff refused the vaccination, smallpox was “prevalent and increasing” in the area and posed an acute risk to public health. And we know the feeling: Much of this city and country have faced similar public health risks recently or are facing them currently. In such circumstances, judicial scrutiny may recede to its lowest ebb, leaving room for an energetic response by the political branches to the many uncertainties accompanying the onset of a public health crisis. But when a crisis stops being temporary, and as days and weeks turn to months and years, the slack in the leash eventually runs out. “While the law may take periodic naps during a pandemic, we will not let it sleep through one.” (Citations omitted; emphasis added).
I’ll put this into plain English—the longer a pandemic lingers (and the more we learn), the less courts should simply defer to the determinations of public health officials. The First Amendment still exists.
Judge McFadden’s ruling does not mean that public health measures are simply swept away. If the church had tried to defy masking or social distancing rules, for example, it likely would have lost. Sensible regulations can and should survive even exacting judicial scrutiny. Favoritism or discrimination should not.
One of the more frustrating aspects of modern right-wing political debates—including debates within Christian conservatism—is the conviction by some that the defense of liberty doesn’t just permit pugilism and incivility, but that it often requires it. Politics is “war and enmity” now, and we must fight on those terms or face final cultural defeat.
This is fundamentally false. In fact, the church’s cultural defeat will be hastened if it disregards its biblical obligations to “love mercy” and “walk humbly.” Moreover, I can’t count the number of legal victories won by faithful believers who’ve pursued virtuous ends through virtuous means. Capitol Hill Baptist is hardly the only church to launch COVID-era legal challenges while respecting and upholding all its biblical obligations of good citizenship.
We don’t know the ultimate outcome of the church’s case. The city may appeal, and the church may ultimately lose. As I said above, the Supreme Court has been quite deferential to state regulations during the pandemic, but its patience is no doubt limited. If Capitol Hill Baptist winds up at the Supreme Court, Americans will see an example of Christian political theology that marries conscience, compassion, and courage to advance a cause that is truly just.
One more thing …
Last month I conducted the second of two debates with Eric Metaxas about Christian support for Trump. I’ve put the video below (fast-forwarded to the actual start of the debate). I’d love your thoughts and critiques. It got a bit more heated than my first debate.
And another thing …
Have I mentioned lately that I have a book out? I loved this tweet-length review by Harvard’s Jason Furman:
You can read his full review at the link, or you can just skip the additional reading and buy the book here!
One last thing …
For many reasons, this has been an extraordinarily challenging few weeks for the French family. I’ll share the reasons when I can, but in the meantime I thought I’d share a song that has helped sustain me. All my life God has been faithful. He has been good:
Photograph by Apu Gomes/AFP/Getty Images.