Religious freedom attorneys pick their battles amid viral pandemic

NEW YORK -- As states grapple with when and how to reopen establishments amid the pandemic, religious freedom remains a legal flashpoint - particularly for the conservative nonprofits that have taken a leading role in representing churches which have challenged stay-home orders.

At least a dozen state or federal suits filed since the virus outbreak started have focused partly or fully on freedom to worship in person, according to an Associated Press analysis.

Those lawsuits break primarily into two strategies. Both camps -- which include legal not-for-profits with significant experience in court battles over religious liberty -- see an opportunity to advance their cause by taking on some state and local faith gathering limits ordered during the pandemic.

But while some suits are framed as full-throated defenses of the right of religious assembly, others have employed narrower strategies. While a few pastors have grabbed headlines by defying public health orders with large services, some of the nonprofits have found success defending a less polarizing practice: drive-in worship designed to gather the faithful in person, at a distance.

First Liberty Institute President Kelly Shackelford, whose conservative not-for-profit has represented churches challenging drive-in service limits in Kentucky and Mississippi, said his group has discouraged other attorneys from taking virus-related cases that may set unwelcome precedents. The institute has focused on actions that specifically target religious entities, not actions that are being imposed more universally, he said.

The 23-year-old group's website on coronavirus notes that short-term gathering limits which cover religious as well as secular meetings "are okay," so long as they don't become permanent. It also represents a trio of churches that won approval of drive-in services in their home New York county without filing a suit.

Shackelford said success hinges on finding the balance between public health and religious freedom: "When is the government going too far? What's appropriate, how does a religious entity navigate this?"

Another nonprofit that's taken on multiple religious freedom cases during the pandemic, the Alliance Defending Freedom, also has targeted restrictions on drive-in worship. The alliance, a legal advocate representing Christian conservative issues, is a powerful force: It reported spending more than $54 million on its most recent tax return.

The alliance notched two victories in one week this month on behalf of churches it represented. Mayors of Greenville, Mississippi, and Chattanooga, Tennessee, eased restrictions on drive-in services after the alliance stepped in. In a third virus-related case it filed after Easter, a federal judge granted a temporary exemption from Kansas' 10-person limit on religious gatherings to two churches the alliance represents.

"Whether you're religious or not, you should be a champion for religious freedom, because it's going to protect your freedom to believe or your freedom not to believe," David Cortman, vice president of U.S. litigation at the alliance.

Religious liberty has long been a political as well as legal battleground. President Donald Trump has embraced the issue as he courts evangelical votes, and both the alliance and First Liberty have aligned with his administration's moves to boost protections for faith. Trump's Justice Department has sent its own supportive message to the alliance, siding with its Mississippi client in its suit against drive-in worship limits.

The organizations involved in the current battles are part of the larger legal battleground. In particular, the 26-year-old alliance has argued landmark religious freedom cases, including a Supreme Court case that challenged the Affordable Care Act's contraception mandate.

Columbia University law professor Katherine Franke described the alliance's lawyers in particular as "very smart" and well-funded. She added that "their longer game" in terms of burnishing protections for religious liberty long-sought by conservatives is bolstered by choosing church clients which "are behaving relatively responsibly" amid the virus.

But other nonprofits working on religious freedom have taken different approaches to the virus.

Liberty Counsel, a conservative Christian group, is calling for churches to begin reopening on a broader scale later this week while heeding social distancing standards, in line with the Trump administration's three-phase plan to reopen the U.S. economy while battling the virus.

That group represents a second Kentucky church that has challenged statewide limits on religious gathering, which lost its push for a restraining order from a federal judge earlier this month in the ongoing suit.

The Becket Fund for Religious Liberty, a veteran of freedom to worship cases that represents multiple faiths, filed a brief supporting a New Mexico church's challenge to the state's religious gathering limits. A federal judge last week denied that church's bid for a temporary restraining order in the ongoing suit.

"When you have a widespread, fast-moving health crisis like this, there are inevitably going to be examples of government overreach," said Luke Goodrich, a vice president at Becket who addressed legal questions raised by virus orders in a piece for the Southern Baptist Convention's public policy arm.

"Sometimes that could be the result of a malicious intent to restrict religious freedom," he added. "But more often, it's result of a well-intentioned but perhaps overeager effort to protect public health, combined with limited time, information, expertise dealing with a pandemic."