Most of us are chafing under restrictions on gatherings imposed by COVID-19 laws. Getting the balance right here is hard, and we want to give the government as much leeway as possible; but the restrictions have been very difficult for churches, and the rules adopted in some jurisdictions seem to discriminate against church meetings in comparison to other activities which are now allowed. These were the issues at stake in the recent decision of the United States District Court for the District of Columbia in Capitol Hill Baptist Church v Bowser (Case No. 20-cv-02710 (TNM), McFadden USDJ, Oct 9, 2020).

Capitol Hill Baptist Church has been meeting in Washington DC for 142 years. In recent days it has been prevented from gathering all at one time by local rules restricting all church gatherings, wherever held, to the fewer of 50 percent capacity or 100 persons. The Church is theologically committed to the view that all members of the church should gather together physically on a Sunday in one meeting. As they usually have about 1000 people attending the meeting on Sundays, they have had to move their meetings across the State border to Virginia, where they have been meeting outdoors with social distancing precautions and facemasks. They would like to meet in this way in Washington DC. Their action against the Mayor of the District claimed that the rules in place breached the provisions of the Religious Freedom Restoration Act (RFRA). They have now been successful in obtaining an expedited preliminary injunction enjoining the District from enforcing their restrictions “insofar as they prevent the Church from holding socially-distanced outdoor worship services in which congregants wear masks”- see pp 1-2 of the ruling.

The Capitol Hill Baptist case

Spurred by Employment Division Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), in which the Supreme Court narrowly interpreted the First Amendment’s Free Exercise Clause, Congress sought to restore the pre-Smith legal landscape and further protect those whose religious exercise is “substantially burdened” by the government. 42 U.S.C. § 2000bb(b).

At p 8.

The operation of the Federal RFRA in relation to the US States was restricted by the decision of the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997). But it continues in full operation in a Federal “District” like Columbia.

The RFRA provides that legislation must not impose a “substantial burden” on the free exercise of religion; “once that substantial burden has been established will the onus then shift to the government to show that the law or regulation at issue is the least restrictive means to further a compelling interest.” (at p 9).

A substantial burden here was demonstrated by the church’s testimony that its religious convictions were that the Bible requires believers to physically meet with all other believers in a congregation once a week, wherever possible. This belief was summed up as follows:

The Church believes that its congregation must meet in person each Sunday to worship together. Dunlop Decl. at 1. The Church traces its commitment in part to “the scriptural exhortation that adherents should ‘not forsak[e] the assembling of ourselves together.’” Pl.’s Mot. at 10 (citing Hebrews 10:25 (KJV)). In a 2012 book, the Church’s Senior Pastor, Dr. Mark Dever, wrote that a “biblically ordered church regularly gathers the whole congregation” because without regularly meeting together, it ceases to be a “biblically ordered church.” Dunlop Decl. Ex. 3 at 6, ECF No. 5-3. This conviction echoes the Twelve Tribes of Israel gathering together to worship, see, e.g., 2 Kings 23:1–3 (KJV), and St. Paul’s admonition that the church is “the body of Christ,” 1 Corinthians 12:27 (KJV). 

At p 10.

It is perhaps worth noticing at this point that this commitment is not shared by all evangelical reformed churches which would otherwise align themselves with Pastor Dever’s beliefs (let alone, of course, all Christian churches generally). But, as Judge McFadden noted, that a belief is not shared by all other co-religionists does not deprive it of protection under the RFRA. So long as the belief is sincerely held (and here there was clear evidence of the church behaving in accordance with this belief prior to the onset of COVID-19), then the court will not inquire into whether it is a “correct” reading of Scripture:

It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.” Hebrews 10:25 

Pages 11-12

(For an explanation of why Christians “gather” see this short video here from the Senior Pastor of the church, Mark Dever.)

Given that the District’s rules forbidding church gatherings of more than 100 persons (even held outside) impose a “substantial burden” on the aspect of the church’s beliefs, the onus was on the District to show that the rules were necessary to further a “compelling interest“, and were the “least restrictive” rules which could be devised to further than interest.

Here the District had not satisfied this burden, even for the purposes of this urgent and preliminary hearing. The District could not merely assert a general interest in public health; it needed to show some clear evidence that these restrictions were necessary for health purposes. On this aspect their case was undercut by the fact that the Mayor had expressed public support for large outdoor protest gatherings where participants were not socially distanced or all wearing masks (at p 17). The District could not offer compelling scientific evidence to demonstrate that the risks of an outdoor, socially distanced worship meeting with masked participants, were very high, in comparison to other allowed activities.

Those other allowed activities also undercut any claim that the District rules were the least restrictive possible. Judge McFadden referred to outdoor eating rules:

Seemingly given a pass are outdoor dining establishments, or “streataries.” Pl.’s Mot. at 14. The District has permitted hundreds of dining establishments to serve meals outdoors. See Martens Decl. Ex. 15 at 5, ECF No. 4-15. More than just providing food for consumption, outdoor restaurants serve as focal points for fellowship and communion, not unlike worship services. Yet outdoor dining establishments currently face no limit on the number of patrons they may serve, as “persons sitting outdoors” are not counted for their capacity limitations. Mayor’s Order 2020-075 at 5–6. Perhaps there are good reasons for this distinction, but the District yet again leaves the Court to speculate.

Page 20

The result, then, was that the District had not been able to overcome the burden it bore of showing a “compelling need” for the rules, or that less restrictive rules were not possible. Judge McFadden granted an injunction preventing the District from enforcing its rules against the church meeting. Information from the church website suggests they are making plans for a large outdoor meeting in the District as soon as they can find an appropriate venue.

The situation in NSW

I have written previously about restrictions on gathering affecting churches in NSW- see here for the most recent post. Since that post was written the rules have not changed in substance, but they have been consolidated and re-enacted in the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) 2020 (with effect 28 Sept 2020).

In broad terms, those rules means that “places of public worship” are restricted in numbers to the lesser of the whatever number flows from the “4 square metre” rule or 100 persons (with some leeway provided where a church has two physically separate areas on the same block, which can each have up to 100)- see cl 11. The intention under cl 17 seems to be that religious services organised in other premises should also operate under those limits (though in fact, as I have noted previously, the way that “significant event” is defined under the Order may make it doubtful whether that intent has been realised.) Still, it seems to be the government view that a 100-person limit should be applied to all religious services.

It has to be said that even these rules are less restrictive than those applying in Victoria at the moment. But still, it is becoming increasingly hard to see why the hard 100-person limit is justified given other activities that are permitted in NSW. Under cl 9, for example, a “hospitality venue” (a pub or a restaurant, presumably) is allowed to have up to 300 persons. Under cl 13, a major “recreation facility” is allowed attendance of 25% of capacity or 10,000 persons. Under cl 14 an “entertainment facility” (a cinema or theatre, for example) is allowed up to 1000 persons for ticketed entry. And under cl 17 a “corporate event” is allowed to accept up to 300 persons!

There are some differences among these things, but it is very hard to see why a “corporate event” where presumably there will be a lot of “mingling” and “networking” is likely to be substantially less of a risk than a church service held under social distancing and masked conditions. Nor is it easy to see why allowing up to 300 persons in restaurant eating and drinking without masks is markedly safer than a church service where members would come, face to the front for most of the time, and be socially distanced and wear masks.

A key difference between Australia and the United States, of course, is that our country has far fewer formal legal protections for religious freedom. We have no equivalent to the US RFRA legislation used in the Capital Baptist case, nor does s 116 of our Federal Constitution even provide protection rising to the (currently somewhat limited) standard provided by the US First Amendment. Some states do have formal human rights legislation, though so far it has not been invoked in this context (and NSW does not have such a law, nor even a provision allowing complaint about discrimination on religious grounds).

Still, we have a robust democracy where voters can make their views known to members of the government. We may be at the point where more ordinary church-goers should start bringing their concerns about the current limits on church meetings to the attention of the Premier and other relevant decision-makers. The Premier may be contacted online here.