By Michael Hernandez
SACRAMENTO, CA—Pacific Justice Institute (PJI) attorneys are providing church pastors from 20 states legal memorandums on the coronavirus gathering bans (posted on their website: PJI.org) and Brad Dacus, PJI president, committed in a phone conference held Thursday afternoon to create legal memos concerning coronavirus gathering bans for all 50 states if requested by church pastors.
Currently, states that have exemptions for religious gatherings are:
- New Mexico
- North Carolina
- South Carolina
- West Virginia
Texas (whose order goes into effect today) and Ohio have the most lenient orders with Texas recognizing churches as providing essential services and Ohio still allowing for weddings and funerals as part of the essential services allowed within the state. Arizona has stated that playing golf and pet grooming are essential services.
Generally, the blue states of the West Coast are the strictest with red states such as Arkansas and Mississippi stating churches are essential and allow some freedom for churches to continue to operate as long as social distancing is observed and human contact is avoided. Illinois is allowing some churches some freedom to gather.
Basically, the states have been free to develop provisions concerning:
- which businesses are essential vs. unnecessary?
- quarantine provisions;
- regulations concerning children attending school;
- bans on groups meeting.
“If you violate the law (especially if people die), you are facing legal and liability issues,” said Brad Dacus. Chief Counsel Kevin Snider stated on the phone call: “Churches can pay the price and the Body of Christ (the larger church) for what a few do. You can become the focal point of anger (a “lightning rod”) if someone passes away. This can be very damaging. We need to be sensitive.”
New York, Alaska, and Hawaii have some of the strictest regulations in place with fines ranging from $5,000-$25,000 and penalties up to one-year for a Class A Misdemeanor.
The Pacific Justice Institute (pji.org) is a non-profit legal defense organization with nine offices in the United States in five different states and having hundreds of affiliates. PJI specializes in cases dealing with religious freedom, parental rights and civil liberties. To view legal memorandums by state go to: https://www.pacificjustice.org/resources/for-churches/legal-insider-covid-19/.
The Pacific Justice Institute has 47 active cases in litigation.
Pacific Justice Institute has posted legal memorandums on the following 20 states: Arizona, Arkansas, California, Colorado, Illinois, Louisiana, Maryland, Michigan, Mississippi, Nevada, New Mexico, New Jersey, New York, North Carolina, South Carolina, Oregon, Pennsylvania, Texas, Virginia and Washington.
The California legal memorandum posted on March 24 states: “Before Governor Newsom’s March 19 order, many churches outside the Bay Area were still able to meet in groups under 250 if observing ‘social distancing.’ It is now illegal for any church in the Golden State to hold regular services or gatherings, until further notice.
“Although President Trump has also issued Executive Orders in coordination with the Centers for Disease Control, these have so far been a less direct factor in the bans of mass gatherings than have state and local orders. (On a federal level, emergency declarations are governed by the Stafford Act, 42 U.S.C. § 5121 et seq. There appear to be no cases involving the Stafford Act and the First Amendment.). As a practical matter, the bans affecting churches are most likely to be enforced locally, pursuant to state law.
“The various federal, state, and local social distancing and stay-at-home orders have some differences amongst themselves but also share commonalities. All tend to either strongly discourage or outright ban gatherings outside one’s home, with several categories of exemptions for ‘essential’ workers and services.
“One of the leading federal lists, originally developed as a counter-terrorism measure by the Cybersecurity and Infrastructure Security Agency (CISA), includes no mention of religious entities or services. However, in its latest guidance of March 20, California expanded on the federal 16-sector list of essential workers and included a specific exception for religious broadcasting as follows: ‘Faith based services that are provided through streaming or other technology.’
“Depending on the specific facts and circumstances, PJI may be willing to defend church leaders who are fined and jailed for following their consciences. The legal outcome of such a prosecution would be highly uncertain, and it must not be assumed that the First Amendment would provide a complete defense to such prosecutions. Civil liability for meeting in defiance of a ban on mass gathering should also be taken into account.
“It is far from clear what kind of liability a church might have if it met in violation of the law and members subsequently became sick. It is therefore strongly recommended that churches consult their liability insurance carrier to ascertain the scope and limits of their coverage prior to taking such actions.”
(Editor’s Note: For the complete California legal memorandum released by the Pacific Justice Institute go to: https://d3otn7pmqo7fh9.cloudfront.net/uploads/2020/03/updated-legal-memo-for-CA-pastors-3-24-20-FINAL.pdf.)
Michael Hernandez, Co-Founder of the Citizens Journal—Ventura County’s online news service; editor of the History Makers Report and founder of History Makers International—a community nonprofit serving youth and families in Ventura County, is a former Southern California daily newspaper journalist and religion and news editor. He worked 25 years as a middle school teacher in Monrovia and Los Angeles Unified School Districts. Mr. Hernandez can be contacted by email at [email protected].