On April 12, 2020, Easter Sunday, the most revered day in the Christian faith, Pastor Kevin Wilson of Lighthouse Fellowship Church in Chincoteague, Virginia was forced to suspend services for his parishioners.[1]  Pastor Wilson was left with no choice, after having been criminally sanctioned by Chincoteague police on April 5, 2020 for violating Governor Northam's executive order that prohibited gatherings of more than ten people during the coronavirus pandemic.[2]  Similarly, on the opposite coast, Calvary Chapel Dayton Valley was prohibited from hosting worship services for more than 90 congregants, approximately 50% of its fire code capacity, while secular gatherings were allowed at up to 50% of their operating capacity, which in some cases exceeded the 50-person limit imposed on houses of worship.[3]  These churches are just two examples of hundreds of houses of worship that have been deemed "non-essential" and forced to shutter to congregants.

Churches across the nation have been hamstrung by governmental executive orders forbidding indoor worship services and, in some cases, outdoor worship services.[4]  COVID-19 restrictions have placed a substantial burden on churches across the nation, whose congregants have been unable to gather together and worship.  Although the government initially could be argued to have had a compelling interest to stanch the spread of the highly infectious COVID-19 virus, in recent months, government officials have increasingly been endorsing exceptions for secular "essential" businesses, while still failing to extend the relaxation of restrictions to churches.[5]  Churches should be among these "essential" businesses for three reasons: 1) churches are constitutionally protected under the First Amendment, 2) churches provide essential services for congregants, and 3) churches have been substantially burdened by these discriminatory governmental orders.

1. Constitutional Protection under the Free Exercise Clause of the First Amendment

The Free Exercise Clause of the First Amendment, by providing that "Congress shall make no law ... prohibiting the free exercise [of religion]," serves a fundamental role in restraining the government from infringing on individuals' right to practice religion.[6]  Under the guiding framework of Employment Division v. Smith, any law or regulation that burdens religious practice must withstand "strict scrutiny" unless it is both neutral and generally applicable.[7]  The COVID-19 restrictions, as recently applied, are neither neutral nor generally applicable.  Factors that support the proposition that a law is not neutral or generally applicable include whether the law specifically targets religion or religious practice, whether there are any "individualized exceptions" not equitably applied, and whether the government is openly hostile to religious organizations.[8]

Many of the executive orders exempt secular businesses such as liquor stores, restaurants, and retail establishments from the ban on indoor gatherings.[9]  There is no evidence that the risk of infection is amplified in a religious setting any more than a secular one.  If individuals are allowed to socially distance in order to frequent Walmart, then they should be allowed to attend in-person religious services, which, unlike Walmart, benefit from constitutional protection.  When casinos are allowed to operate at a higher capacity than churches, there is a serious infringement of religious liberty.[10]  As Justice Alito eloquently stated in his dissent for the recent Calvary Chapel case, "[t]he Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance."[11]

2. Essential Services for Congregants

Churches are not merely empty structures that hold religious services.  They are a thriving community of congregants who, through fellowship, build strong faith foundations through connecting and growing spiritually with each other.  The importance of fellowship, and praying together, cannot be overemphasized.  Indeed, God promised that "where two or three are gathered together in my name, there I am with them."[12]  The Greek word for church, "ekklesia," means "assembly."[13]  Isolating congregants, effectively prohibiting them from being able to fellowship together, leads to depression; anxiety; and impaired physical, mental, and cognitive health.[14]  A 2019 study, conducted by the American Cancer Society, discovered that social isolation creates risk of premature death, similar to the detrimental effects of obesity, smoking, and lack of physical exercise.[15]

As the presiding judge noted in On Fire Christian Center v. Fischer, "if beer is essential, so is Easter."[16]  If quenching alcoholic "thirst" is deemed essential by government officials, so too must quenching spiritual thirst.  Addiction is a disease that thrives on isolation.[17]  Instead of treating the symptoms by granting liquor stores the status of "essential business," the issue should be dealt with at its source.  Churches are far more "essential" than the government admits.

3. Substantial Burden

Finally, government restrictions on gatherings have substantially burdened churches from practicing their religion.  Although states argue that "online" services can satisfy the need for communal celebration of Mass, online services are not an adequate replacement.  Not all individuals have access to the technology required to join services online.  Holy Communion, the very essence of a Christian Mass, cannot be received online.  Further, even for individuals who can access church online, the Constitution protects the right to worship as a person chooses.  Forcing churches to shutter their doors makes it difficult for them to fellowship and worship as they choose.  Thus, it can be concluded that the constitution, and justice, demand that churches receive the status of "essential businesses."