Did your church close during the COVID pandemic? Most did.

On April 3, 2020, Gov. Kay Ivey and Alabama State Health Officer Scott Harris mandated that no more than 10 people could gather in a building, forcing most churches to livestream services or suspend them entirely. An April 28, 2020, order loosened this restriction, only prohibiting gatherings that could not maintain the magical six-foot distance between persons, leaving most smaller churches heavily restricted relative to the size of their sanctuary.

The six-foot distancing requirement remained in effect even in churches until April 7, 2021 (along with the mask mandate). In essence, Alabama restricted church assembly and worship with orders backed by the threat of $500 fines and imprisonment for over one year.

In September 2020, the Foundation for Moral Law filed a lawsuit against Ivey and Harris in the U.S. District Court for the Middle District of Alabama on behalf of several citizens in Case v. Ivey. The case claimed that their COVID orders violated the Establishment and Free Exercise Clauses of the First Amendment. The District Court dismissed the suit in June 2021, after months of pre-trial litigation.

Despite opining that the April 3, 2020, order likely violated the Free Exercise Clause, the District Court nevertheless found that Ivey and Harris were entitled to qualified immunity. The 11th U.S. Circuit Court of Appeals affirmed the dismissal.

Likewise, in Spell v. Edwards, the U.S. District Court for the Middle District of Louisiana dismissed the Foundation’s lawsuit contesting restrictions on church assembly during COVID based on qualified immunity. The Fifth Circuit affirmed the dismissal.

So, what is qualified immunity?

In legalese, qualified immunity is a legal fiction protecting government officials from liability if they 1) acted within their “discretionary authority” and 2) their actions did not violate “clearly established” rights.

You are not alone if that sounds confusing. Many in the legal profession agree with you.

In everyday language, qualified immunity is protection for officials from legal responsibility that the government has given itself for 1) actions taken under authority the government defines as broadly as possible for itself and 2) those actions did not violate the narrowest interpretation of rights.

To lay it down so the goats can pick it up: qualified immunity is government officials’ free pass to shoot first, and answer questions later.

That last definition fits the original purpose of qualified immunity very well. The U.S. Supreme Court created the doctrine in the 1967 Pierson v. Ray case to shield individual law enforcement officers acting in good faith in unclear legal circumstances from having to pay damages. The popular debate on qualified immunity is along these lines, particularly as a part of the larger debates surrounding law enforcement.

The more fundamental point that everyone should agree on is that protecting police officers who have to make split-second, life-and-death decisions on the job from financial ruin, is substantially different than shielding a governor who has all available resources to understand the nuances of the law and U.S. Constitution, but nevertheless violates constitutional rights.

Qualified immunity: The executive’s best friend during COVID

The courts in both of the Foundation’s cases found that church restrictions were made under officials’ “discretionary authority” and were not barred by “clearly established” laws at the time. While we challenged the scope of authority in both cases, the courts summarily found that Gov. Jon Bel Edwards (D-La.) and Ivey acted pursuant to their authority under the law. Evidently, a state’s police power covers a multitude of sins, particularly when executed for an “emergency.”

Were there no laws on the books that “clearly established” that the government cannot restrict church assembly?

Unfortunately, no, according to federal courts in Spell v. Edwards and Case v. Ivey. To the American Founders’ chagrin, the meaning of “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” in the First Amendment is the subject of terrible contention.

Spell v. Edwards at the U.S. Supreme Court

While the Foundation was able to help our local counsel Jeffrey Wittenbrink secure a victory for Pastor Spell in a parallel lawsuit brought in Louisiana state court, a federal court victory promised a broader impact. So, we continued in our federal lawsuit in Spell, petitioning the U.S. Supreme Court for a writ of certiorari in May 2023. The right to freely assemble for worship is of ultimate importance, and we believe the precedent on the books will not afford sufficient protection the next time governments decide to close churches under the pretense of an “emergency.”

The U.S. Supreme Court reviews less than 1% of petitions submitted, but we prayed Spell v. Edwards would catch its attention, especially since talk of more lockdowns and restrictions began simmering across the country.

We asked the Court to review two questions.

The first was whether the Court’s recent precedent in American Legion v. American Humanist Association (2019) – reiterated in Kennedy v. Bremerton School District (2022) – instructing Establishment Clause claims to be reviewed based on the Founders’ understanding, applied to church restrictions. The Fifth Circuit did not review our Establishment Clause claim at all, and it deserved to be heard.

The second applied the first, asking whether State orders restricting religious assembly and worship violate the Establishment and Free Exercise Clauses under the Founders’ understanding of the Religion Clauses. In short, the Founders believed in a jurisdictional separation of Church and State whereby the State is simply without authority to tell the Church whether it may assemble for worship or not. This was practiced even in the context of epidemics and other emergencies, where elected officials in the decades following the Founding encouraged church attendance rather than restricting it.

“Separation of church and state” is often invoked – most recently by the Freedom from Religion Foundation against Auburn University – by those who wish to prevent even the mere mention of God in the public setting. Yet, to the Founders, this would be foreign. They understood the Establishment Clause as primarily protecting the Church from the Federal Government.

Unfortunately, the Supreme Court denied the Spell v. Edwards petition for writ of certiorari without comment on Oct. 2, 2023.

Just because the Supreme Court declined to answer these questions does not mean that they will remain unanswered. In fact, it is now even more important to continue asking such questions of all leaders, elected and unelected.

The next emergency is around the bend. All the while, the words of the Constitution remain the same and, as we closed our petition in Spell, “requires that the State ‘shall not’ restrict the assembly of the faithful that is the Ekklesia.”

Talmadge Butts is Lead Staff Attorney for the Foundation for Moral Law (www.morallaw.org). Those with constitutional concerns may call the Foundation at (334) 262-1245 or email talmadge@morallaw.org.

The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com

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