As I’ve mentioned to my wife more than once over the last few months, so many key pandemic-related events (including major shutdown announcements, major court decisions and major controversies) seem to happen on Fridays. This is not a complaint; rather, it is just an observation. I think the idea behind the restaurant named T.G.I. Friday was that Fridays were supposed to be a slow transition into a restful weekend; but, if you see Friday on the calendar in 2020, strap in and grab an Alka-Seltzer because who knows where this crazy COVID-19 roller coaster is going to take us.

With that in mind, last Friday did not disappoint! John MacArthur and the Elders of the Grace Community Church published a thorough and helpful piece titled “Christ, not Caesar, Is Head of the Church” explaining why GCC has decided to gather as a church despite California’s current restrictions. Then, as if to underline the importance of the conversation, the U.S. Supreme Court ruled late Friday night that Nevada can impose tighter restrictions on churches than casinos.

These headlines are, in a sense, Round 2 of the COVID-19 disputes over state restrictions and religious liberty. And, as always, my foremost concerns are for the church’s gospel witness and for religious liberty (in that order). Here are the questions that have been on my heart and mind as I have prayed over and reflected on these events today: How can the church succeed in round 2? And, more specifically, how can we unify in our public witness and best represent the cause of Christ and the cause of conscience right now? Here are three thoughts/observations:

#1 Conscience is Essential

Like the church, conscience is essential. Romans 13, which explains the role of government, is followed by Romans 14, which emphasizes the conscience of the believer. In public life especially, we must learn to distinguish between “cross” issues (central to Scripture and the gospel) and conscience issues. The “cross” issue here is Hebrews 10:25. The in-person assembly of believers for worship, discipleship, and fellowship is an essential Biblical requirement that cannot be canceled long-term. But, how church leaders apply Hebrews 10:25 in their local context and with their congregation is a question of conscience. Jonathan Leeman made this point in his thorough response to MacArthur explaining why Capitol Hill Baptist is choosing to comply with restrictions in Washington, D.C. And, both Leeman and Mark Dever called for patience and charity among church leaders and Christians as different ministries come to different conclusions on this question.

And, we should recognize that this is a tough question. As Leeman points out, protecting people from COVID-19 and helping people through the pandemic lies somewhere in the overlap between (1) the church’s Biblical role of fulfilling the Great Commission and following the great commandment (Matt 22:37-40) and (2) the state’s Biblical role of restraining evil and promoting good (Rom 13; I Peter 2). Abraham Kuyper’s idea of sphere sovereignty is helpful in this regard. That said, I recognize the point MacArthur and the GCC Elders make in the addendum to their article. Some shutdowns have turned from temporary to indefinite, many restrictions have not been fairly applied, and the best way to serve our neighbors has become less than obvious due to conflicting messaging and standards. Further, instead of treating the church as a peer or equal institution, many government officials have treated the church like just one more organization to regulate. For these reasons, I understand why some church leaders have chosen to assemble regardless of shutdown orders. But, other church leaders have taken a different view of the virus response, argue that churches should partner with government officials to slow the spread of COVID-19 and continue to voluntarily postpone their in-person services.

In a culture given to canceling anyone and anything that differs with that moment’s prevailing viewpoint, the church should model a better way forward. The church needs to speak with the same tone even if we have slightly different messages. Hebrews 10:25 is not an option, but how we apply it is. If we spend most of our time finger-pointing at each other, we will not have the time to raise our hands to question the state’s treatment of churches. This brings me to #2.

#2 Court Remedies Are (Largely) Exhausted

Late Friday, the U.S. Supreme Court denied a request for a preliminary injunction filed by a Nevada church over the state’s reopening plan. Governor Sisolak’s plan allows bars, restaurants, casinos and indoor amusement parks to operate at 50% capacity but bans churches from holding gatherings of more than 50 people. In a surprising decision, Chief Justice Roberts sided with four other Justices and denied, without explanation, the church’s request for immediate relief (the matter may still proceed to a full trial, but this decisions definitely doesn’t help the case). Justice Alito stated the following in his dissent:

The 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. But the Governor of Nevada apparently has different priorities.

And, Justice Gorsuch continued the broadside:

The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

I try to look at these cases with as much objectivity as possible. Similar to the Supreme Court’s March decision denying a similar request from a California church, this Nevada case hinges on a comparison of churches to other, secular venues. If you are interested, I have set out the general legal analysis of such cases here. In sum, a majority of the Supreme Court has decided that churches are more akin to concerts, public assemblies and movie theaters; and, the dissenting Justices have pointed out that such distinctions are arbitrary or at least overly simplistic. And, Nevada’s reopening plan is filled with clear examples of the unfair application of this categorization. Casinos can be filled with large numbers of people for extended periods of time, groups of 50 can meet in bowling alleys without social distancing, and “…a 10-screen ‘multiplex’ may host 500 moviegoers at any time.” But, a church can host no more than 50 people and must maintain social distancing. John Leland, the Baptist minister who ceded an election to James Madison in exchange for the First Amendment, would be quite surprised by a government mandate that allows people to gather around a slot machine but not the Scriptures (ok, I admit that mine is not as good as Gorsuch’s).

This is a significant development. Why? Because the highest court in the land has already considered a conscience claim very similar to MacArthur’s–and denied it. Now, there are some legal nuances that may affect such a case, and the California and Nevada cases may be won at the trial level. Or, perhaps state law claims can be pursued. But, the headline remains the same. The legal/court remedies for MacArthur’s position (and the many pastors that have taken a similar stand) are largely exhausted. And, those churches and pastors may face penalties and citations for defying meeting bans without much in the way of legal redress. My point here is not to discourage pastors from taking this stand if they feel led to do so or from pursuing legal claims; rather, I am simply pointing out that we are witnessing a church/state showdown that (1) is different in kind from most recent controversies and (2) may prove to be a preview for similar clashes in coming years.

As I often remind readers in more controversial matters, this case is not about your conscience. Rather, it is about the right of conscience. This is a significant moment (even if California largely ignores MacArthur’s decision), and we should treat it as such.

#3 Our Constitutional Rights Needs Some Exercise

So, what is the church’s next step? Though I was disappointed by Friday’s ruling, it may provide a solution for the church and our public witness. Church leaders are not the only ones frustrated by the start/stop nature of COVID-19 shutdown orders and the head-scratching disparities in some public health directives. Many church leaders have been saying for months that the state should trust and partner with the church and that shutdown orders have been unfairly applied to in-person services. Now, four Justices of the Supreme Court have echoed that concern (I linked the actual Order in #2). So, Justice Roberts may have just given us the message we need to synthesize the different positions set out in #1 above, unify the church’s public witness and argue effectively for religious liberty in the days ahead. What is that message? People of faith should be treated fairly during the pandemic. Governments are trusting numerous commercial enterprises to safely reopen, and stats clearly show that churches can too. The religious exercise of all people of faith, including other religions, should be properly prioritized in the government’s pandemic response.

Intramural debates are important and need to happen. And, churches will take many different approaches as the COVID-19 crisis continues (since I am attorney, you will probably not be surprised to learn that I have generally encouraged and continue to encourage churches to partner with government officials to help slow the virus rather than ignore or defy shutdown orders (similar to Leeman’s position); but, as stated above, I recognize the Biblical and practical arguments of MacArthur’s position and defer to the conscience of pastors in their local context). In sum, my primary point in this article is as follows: I am hopeful that this Nevada case reminds us all to speak with one voice about the critical importance of the right of conscience during the pandemic. If you have followed this blog for long, you can probably guess what I am about to say. But, here it goes anyway: the best way to defend religious freedom is to use it. And, recent events prove that our First Amendment freedoms need some exercise.