“On Holy Thursday, an American mayor criminalized the communal celebration of Easter. That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion,” Walker said.
“But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship, and even though it’s Easter.”
“The Mayor’s decision is stunning. And it is, ‘beyond all reason,’ unconstitutional,” Walker said.
“We call that the shot that was heard around the world, it was the very first one, any decision handed down during the pandemic, and it was a slam-dunk, a strong decision by Judge Walker,” Shackelford told The Epoch Times on March 15. Attorneys from FLI represented the On Fire congregation in the case.
Fischer’s order, which was issued three days before Easter Sunday, covered indoor worship services, outdoor gatherings, and even those that congregants attended while sitting in their cars in the church parking lot.
In the months since, thousands of congregations across the country have been ordered by state and local officials to limit attendance severely or stop services altogether, with a result that many churches have gone to court with constitutional challenges. The deaths of more than half a million Americans have been attributed to the disease since March 15, 2020.
Many churches have also defied the orders and continued holding services, most notably in California, New York, and Nevada where Democratic Govs. Gavin Newsom, Andrew Cuomo, and Steve Sisolak, respectively, issued decrees that singled out religious groups for singularly harsh treatment while exempting liquor stores, gambling casinos, and big-box stores such as Walmart.
“People try to take advantage of fear and the unknown, and it’s easy for people to forget why this country is so special,” Shackelford said. “People have the freedom to make their own mistakes and to make good decisions. You know, freedom is something some people consider very dangerous, but it’s what makes America, America.”
The result was dozens of court challenges across the country in which churches repeatedly won, culminating in some respects at Thanksgiving when the Supreme Court in a 5–4 decision struck down a Cuomo decree aimed at specific Christian and Jewish congregations in Brooklyn.
“The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.
“Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all ‘essential’ while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”
Brooklyn Diocese, in turn, led to decisions against equally harsh anti-church decrees issued by Newsom and Sisolak. But Shackelford sounded a note of caution about the Supreme Court’s ruling against Cuomo.
Significantly, however, all three of the decisions involved requests for emergency injunctions.
“While these emergency motion decisions are not merits decisions, that means they are therefore not considered precedents, still, they are a very strong signal to the lower courts what the makeup of the Court is and what they think about this,” Shackelford said.
He also pointed to another cautionary note in that officials can easily withdraw an offending decree, modify it slightly, and then reissue it, thus making moot the issues raised in the initial court challenge and requiring those seeking to uphold the First Amendment to go through a whole new costly legal challenge.
“We’ve won all of our cases on religious freedom with all of the churches and synagogues, but it’s really hard to get a decision up to the Supreme Court because as soon as you win, they just drop the [offending] order and come up with a new order,” he said.
“It was going to be a crime in D.C. to have 101 people outside, with masks and socially distanced for a church service. However, at the same time, they said it was fine to have thousands and thousands of people protesting,” he said.
“We went into federal court and we won. What did D.C. do, did they appeal it, did we get to go to the Supreme Court. No, they dropped their order,” he said. “You can win these decisions in the lowers, but to get it to the Supreme Court is almost impossible because they simply drop or change their order.”
Shackelford said cases involving substantial fines against churches such as those in California amounting to more than $2 million could be more likely to make it to the high court and prompt a decision on the merits of the issue.
