A View from the States: The Criminalization of Faith

April 14

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports . . . And let us with caution indulge the supposition that morality can be maintained without religion.  Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. – George Washington, 1789 Farewell Address

Every individual, family, and church community should seek to follow the Lord’s command to love our neighbor as ourselves and follow social distancing guidelines in order to protect our community as we all seek to control the spread of COVID-19. And in return, government leaders should trust religious bodies to follow generally applicable guidelines. However, over the Easter weekend we saw a marked uptick in government leaders showing extreme distrust for the religious community and threatening harsh criminal penalties for exercising religious freedoms.

Because the First Amendment is a fundamental right explicitly listed in the Bill of Rights, it gets heightened protection. Any state law or regulation that affects religious practice or belief should be generally applicable, meaning that it must apply to everyone and cannot target religious people specifically as a distinct group. Further, any regulation/law must be for a specific purpose (like combating a pandemic) and cannot simply be imposed for an unrelated purpose.

When do the COVID-19 church orders go too far?

Generally speaking, government regulations go too far when they single out religious groups – parishioners, churches, mosques, synagogues, etc. – for special treatment or criminal prosecution. This is true during normal circumstances. It remains true during times of crisis like the current COVID-19 pandemic.

Many of the early stay-at-home orders applying to churches did so broadly and were voluntarily. And the vast majority of churches complied willingly. In other states without mandatory orders, churches complied voluntarily for the good of the community. But as Easter and Passover approached, this mutual trust between government and church disappeared.

In my state of Kansas, after weeks of working with legislative leaders, liberal Governor Laura Kelly reversed her exemption of churches and issued an executive order singling out churches while exempting 25 other types of groups. She even went so far as to compare church services to KU basketball games. While Kansans love KU basketball, there are clear constitutional differences.

Similarly, in New Mexico the liberal governor quickly changed her mind about whether churches were trustworthy during the holiest week in the Jewish, Christian, and Muslim faith. She ended the exemption for churches from her Public Health Order, subjecting churches to the ban on all gatherings of more than 4 people.  Many churches were unable to produce even online services under these restrictions and cancelled even these services.

How bad is it?

  • In Kansas, attending church could mean $2500 in fines and up to a year in jail.
  • In Kentucky, the liberal Governor threatened to collect the license plate numbers of any who attended churches, even drive-in ones (where people remained safely in their cars) while ignoring others at drive-in restaurants or retail stores.
  • New York City Mayor de Blasio threatened to close churches permanently if they did not comply with his closure order.
  • Some counties in California have even banned drive-in services.
  • Even the generally conservative Governor of Indiana issued a very detailed restrictive order targeting churches unfairly.

To add salt to this wound, many of these states allow abortion clinics to continue operating. In states where recreational marijuana is legal, pot shops have been deemed essential businesses. Similarly, liquor stores are deemed essential in most every state as well. Yet, church doors are shuttered.

Where do we go from here?

While there are no perfect solutions, other liberal governors in states like Colorado and Wisconsin figured out ways to work with the churches—to allow them to continue to produce services, while encouraging members to stay home. There are multiple different means for the church to still worship together without endangering lives. And as many people have said recently, the church is much more than just a building. God has provided great gifts of creativity and technology that many churches are putting to good use.

At the same time, Governors and government leaders are not off the hook – they still need to operate constitutionally. They cannot be allowed to set dangerous precedents that single out religious freedom for criminal prosecution.

Only under rare, extraordinary circumstances, can religious freedom be squelched, if at all. In those circumstances, government actions cannot, even then, single out religious freedom alone for punitive action.

Governors should actually strive to work with the faith community on a number of fronts amid this crisis. Family Policy Alliance team members have been on calls with President Trump and Vice President Pence, who have repeatedly thanked the faith community for all that they are doing to rearrange their services and serve their communities.

George Washington didn’t realize how important his 1789 words would be in 2020. We need national morality—fueled by religion—amid the fight against COVID-19 more than ever. Churches are coming alongside the government leaders to battle the coronavirus, provide hope, serve their communities, and help guide us through the crisis. Now we must make sure our government leaders come alongside the churches so that we still recognize our country’s moral fabric after the crisis passes.


Brittany Jones, Esq.
Advocacy Director
Family Policy Alliance of Kansas