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Transcript: Into Religious Freedom v Public Health 

The full episode transcript for Into Religious Freedom During a Pandemic.
Image: Altar server
Altar Server Christopher Coker participates in prayer outside the Basilica of San Albino in Mesilla, New Mexico on May 2, 2020.Paul Ratje / AFP - Getty Images file


Into America

Into Religious Freedom During a Pandemic

Trymaine Lee: Freedom of religion, in America it's one of the basic freedoms protected by the United States Constitution. Many of us first learned about it in grade school. Over the past few months, as coronavirus has made its way into every community in this country, state and local leaders have put new restrictions on almost every part of our lives, including religious gatherings.

Churches on Sunday, mosques during Ramadan, synagogues on the Sabbath, all of them upended by this pandemic and social distancing. Many are offering prayers and ceremonies through livestream or services in parking lots, whatever it takes. And even as the crowd restrictions are loosened, many places of worship are choosing to stay closed, at least for now.

Some black pastors, for example, see how hard this virus is hitting their own communities and say, "You know what? It's not time to get back together, not just yet." But the coronavirus has also unleashed new clashes of church and state. Despite the rules, after a revered rabbi in Brooklyn died of COVID-19, thousands of mourners jammed the streets for a public funeral in late April.

Archival Recording: In Williamsburg, police called to a large funeral of a rabbi tonight. Large crowds packing Bedford Avenue to mourn, officers responding to disperse the crowds for their own safety. The city still has a long path towards some sort of normalcy.

Lee: President Trump tried to order states to reopen houses of worship.

Donald Trump: The governors need to do the right thing and allow these very important essential places of faith to open right now, for this weekend. If they don't do it, I will override the governors. In America, we need more prayer, not less.

Lee: And some churches have gone to court to push back.

Archival Recording: And the church is important. It's a place where I came and somebody took me by the hand and put their arm around my neck and they said, "Hey, we're praying for you. We love you." The church is the place of physical, and moral, and spiritual support.

Lee: I'm Trymaine Lee, and this is Into America. Today, church and state and the clash over the Constitution during a national health emergency. Ronnie Baity is the pastor of Berean Baptist Church in North Carolina.

Ronald Baity: Well, I've been the pastor of this church for 40 years. I'm actually the founding pastor. And we started in a little storefront building. And through the years, the Lord has greatly blessed this ministry. We now have about 20 acres, have three nice buildings, and own and operate a radio station. And we are reaching a lot of people.

Lee: Might be silly to ask a pastor this, but what is your favorite part of Sunday service?

Baity: Well, we love to proclaim the word of God. But probably the most important part that thrills our hearts the most is during the invitation. And so we're always delighted, honored, and thrilled when we see people walk the aisle and come to Christ to get life-changing events taking place.

Lee: Have any of your members come down with coronavirus?

Baity: No, sir. We have not had a single case in our church.

Lee: So let's go back to the beginning of the pandemic in early March, after North Carolina governor Roy Cooper started to limit how many people could gather, including for church services. When it first started, did you implement any precautions then?

Baity: Well, we followed his executive orders. On March the 14th, he limited the amount of people who could sit in our auditorium to 100 people. Then on March the 23rd, he dropped the maximum number from 100 to 50. And then on March the 27th, he dropped the maximum number we could house in our building to 10. So after six or eight weeks, we finally came to the place where enough is enough. Our First Amendment rights are being taken away from us. We need to do something about this. And so we pursued the cause.

Lee: What were those first Sundays like?

Baity: Well, we actually moved out in our parking lot and we had drive-in prayer. We had a stage out there.

Archival Recording: Well, good morning. This is a different kind of service. Can everybody hear me?

Archival Recording: Oh yeah.

Archival Recording: If you can hear me, toot your horn. (HONKING)

Baity: Fortunately, we own and operate a radio station here at our church. And everybody who drove on our parking lot could sit in their automobiles, turn their radio on to our radio frequency, 880, and they could hear the sermon.

Archival Recording: Jesus came back to them. But the wonderful news is to everyone in this parking lot today who's been saved, Jesus also came to you. And he came to me.

Lee: How were you actually feeling? As pastor of this church, you've been there for 40 years. And here you are, having church in the parking lot. How'd that feel?

Baity: Well, it don't feel right because the parking lot is a place where cars are supposed to park and then a building is where people are supposed to come and worship. It was not the same as sitting in the house of God, and worshiping together, and singing together, and having fellowship together.

Lee: Tell me about the moment you decided to turn to the courts.

Baity: We decided it's time that we get involved. We feel like our First Amendment rights have been trampled under our feet. And we feel like it's time that we challenge that. Abortion clinics were still open. Walmart was still open. Hardware stores were still open. And all of the above could have more people in their stores and their places of business according to the governor than the church house could. Church house could still only have 10.

Lee: So I know obviously you want to provide a service for your community, and as many people who want to come and hear the good word you want to give that to them. But I think it's Matthew, "Where two or three gather in my name, there am I." What's wrong with a small service?

Baity: The thing that concerned us was that there was discrimination against the church. There was something here that was taking place that was not on an even playing field. There was one standard for business and there was another standard for the church world. And when the judge asked the opposing attorney, "Why the double standard?" they did not have an answer.

Lee: On May 14th, Pastor Baity's church, along with the Second Baptist Church and a church-affiliated nonprofit organization, filed their lawsuit in North Carolina federal court, claiming the governor's order had violated their constitutional rights. And two days later, the judge ruled in favor of Pastor Baity and the other parties to the lawsuit.

In his decision, the judge wrote, quote, "There is no pandemic exception to the Constitution of the United States or the free exercise clause of the First Amendment." The governor decided not to appeal, and so religious gatherings were now exempt from the statewide stay-at-home orders. Pastor Baity no longer had limits on how many people could worship on Sunday.

Baity: We were very grateful, we were very thankful, and we were very appreciative. I'm reminded of what the judge said down towards the close of the trial. He said, "If somebody should ask me, 'Why should I have a right to sit in a church and worship?'" he said, "I would say, 'Because I'm an American. I'm free. I have a First Amendment right to do so.'" And he's exactly right.

Lee: This tension between religious freedom and public health during the coronavirus pandemic, it's complicated. And now the Supreme Court has weighed in. More on that after the break.

Lee: So in federal court in North Carolina in mid-May, it was a win for Pastor Ronnie Baity and all houses of worship in the state. But since then, the Supreme Court has ruled in a case from California, where the coronavirus was also testing the limits of religious restrictions. Like I said, it's complicated. So let's bring in NBC justice correspondent Pete Williams. He knows just about everything about courts and the Constitution. What makes religion special?

Pete Williams: Well, it was a founding reason for founding the country. Our founding fathers were religious people, and it's the very first civil right in the very first amendment in the Bill of Rights. It says, "Congress should make no law respecting an establishment of religion or prohibiting the free exercise thereof."

So those are two key phrases. "Establishment" means the use of government facilities for things like school prayer, holiday religious displays, the crèche on the grounds of the state capitol, the Ten Commandments on public property. "Free exercise" is where the action is here in the pandemic though. It's intended to prevent religious persecution.

Lee: But does that mean that the government can never under no circumstances or any circumstances say anything about what houses of worship do? Like, particularly in the case of a public health crisis like we find ourselves in now.

Williams: No. Like any right in the Bill of Rights, it just says it's a balancing act. And the government has to show that it has a strong need to do so. The states have broad authority when there's a public health crisis to shut down businesses, public places, private businesses, any place that people gather in order to stop the spread of disease, and churches are not exempt.

Lee: So where does that authority actually come from? And it sounds like that kinda runs right up against that First Amendment that we just talked about.

Williams: Well, it does. It does run against it and against other civil rights, too. These are what are called "police powers," not what we usually think of as arrest or crime fighting. But these are powers to promote public health, to preserve morals, safety, the general well-being of the community. And the courts have repeatedly upheld the use of these police powers, saying that these are among the most essential things that the government does.

And the courts, including the Supreme Court, have said that when you're safeguarding public health, that sometimes means that individual liberties must be resisted. In the current pandemic, for example, a federal court in Texas said the state could ban abortions in order to preserve medical supplies, even though there is a constitutional right of access to abortion. And so that's the reason.

Lee: How is this all playing out right now during this pandemic?

Williams: Well, the churches have felt this pretty hard. Some states have shut down houses of worship altogether because they're public gathering places and they say that would spread the disease very quickly. Some have said that churches can do services outdoors or with people in cars. Some have said a limited number of worshipers can come in but they have to keep their distance.

And so what you're seeing is in response these religious institutions are suing, like the pastor you interviewed. And they have been successful in court if they can show that the rules for them are more restrictive than for other places where people gather like offices or shopping malls and that they can say, "These limits are unreasonable."

Lee: You know, that's exactly the foundation of what Pastor Baity back in North Carolina is kinda arguing. So in his lawsuit, he was challenging the governor's restrictions during the pandemic. And he made this argument and said it wasn't right that some secular places like Walmart didn't have to abide by the same gathering restrictions.

Williams: Some courts have said that houses of worship are not like liquor stores because in a liquor store, you think about it, a few people go in at a time, they look for what they want, and then they leave, they move around. And these courts have said, "No, churches are not like that. They're not like shopping malls.

"They're more like theaters, where people go in, they sit down. Large numbers of people congregate. They're there for a long time. Maybe they're handling the same hymnals." Remember, there have been cases where the virus was spread in churches. An Episcopal church here in Washington started one of the first cases here. It spread in that church. So that's been the key question. Is a church like a liquor store, or is it like a theater?

Lee: So we heard President Trump on May 22nd threaten to overrule governors and reopen churches. He said, "If they don't do it, I will." Can a president do that?

Williams: No, he can't. These are police powers, nearly all in the hands of the states. There are a few exceptions like, for example, restricting travel into the U.S. But the Constitution makes it clear that these are not federal powers. So he can't order the states to do anything about churches or businesses. Now, the Justice Department, the federal government, has stepped in to support a few churches in court that sued to challenge local restrictions.

For example, it opposed a pandemic restriction in Greenville, Mississippi. This came after the police issued tickets to people who stayed in their cars in a parking lot with their windows rolled up listening to their pastor deliver a sermon on the radio. And the city later relaxed its rule. And the Justice Department has sent some letters to governors saying, "Hey, you better be careful. Your restrictions are violating religious freedom." But that's it.

Lee: Late last month, the Supreme Court weighed in on this exact church/state divide in California. Tell us about the background of this case in particular.

Williams: Yes, this was the court's first attempt to try to balance what we've been talking about: religious freedom versus public health during a pandemic. Now, this case was brought by the South Bay United Pentecostal Church in Chula Vista. That's in Southern California in the San Diego area.

It asked the Supreme Court to block the restrictions that had been ordered by California Governor Gavin Newsom which limited church attendance. Now, the church lost below. A three-judge panel of the Ninth Circuit Court of Appeals ruled against it, upholding those restrictions.

That court said that the nation is dealing with a highly contagious, often fatal disease for which there's no known cure. And that decision had an interesting quote in it from former Supreme Court Justice Robert Jackson, who said, quote, "If a court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." So that's why the church came to the Supreme Court.

Lee: What did the Supreme Court decide?

Williams: It decided not to put the governor's order on hold. It ruled against the church. It said the restrictions did not violate religious freedom. The vote was close. It was 5-4. And it might surprise some people that the chief justice, John Roberts, who's normally a conservative vote, joined with the court's four liberals to make it five.

Lee: And what exactly did the court say? Why didn't it see a violation of freedom of religion here?

Williams: Well, this is a little unusual, Trymaine, because the court itself didn't say anything other than, "Church, you lose." But in explaining his vote, which was the controlling one, Roberts said that given that there's no known cure, there's no treatment or vaccine and given how easily the virus can be spread, it looked to him like California's rules did not go too far, did not violate the Establishment Clause.

He said these are similar to limits on other places where people gather closely together for long periods like concert halls, movie theaters, sporting arenas. And he said local officials have a duty to shape the limits on public gatherings and the courts should not second guess them as long as they act within broad limits.

Lee: So churches are not liquor stores? (LAUGH)

Williams: Well, right. Roberts said the difference is that retail stores, banks, laundromats, places like that are places like that are places where people do not gather in large groups or stay together for long periods, and that was the key difference.

Lee: And so let's get back to Pastor Ronnie Baity and his lawsuit against the governor. The church won in the lower court and the governor just backed down. He didn't appeal the decision. But that was all before this Supreme Court decision. Does anything now change for Pastor Baity and his church?

Williams: Well, not in court. I mean, it's game over for him. He won. The state loosened the reins on North Carolina churches. So his lawsuit is over. And, by the way, Trymaine, I just want to point out that this whole dispute is nothing new. Because during the Spanish Flu epidemic, there were houses of worship that were ordered to close then, too.

Lee: Wow. Pete, does this Supreme Court ruling mean this entire balancing act is settled? Is there now a clear line regarding just how far officials can go in putting limits on churches during this pandemic?

Williams: No, there really isn't. Because, first of all, the Chula Vista church was asking the Supreme Court to block a lower court ruling. And as the chief justice said, there's really a very high bar for that. So that was one strike against the church. And second, the Supreme Court was looking specifically at California's revised restrictions, which are much looser and they allow more people into houses of worship.

So if another church brought up much tougher restrictions, then things might come out differently. It does, to some extent, put the wind at the backs of the states though, and you have to consider the fact that many of these restrictions are now getting looser as we go through into the summer months.

Lee: Justice correspondent Pete Williams, thank you so much, as always, for breaking it all down for us.

Williams: My pleasure.

Lee: So, pastor, now that your congregation is back in church, what precautions have you implemented?

Baity: Well, when we come to the church building, we have someone holding the doors so that a group of people will not touch the doors at the same place. We have a nurse at the door with a thermometer at a distance who will check the fever of all of our people. We have hand sanitiziers. We have masks available for the people if they choose to wear a mask. Every other row of our chairs is blocked off. We allow families to sit together, but then we have distance between families and other people who are worshiping in our church.

We do not pass the offering plate. We always had a time when people fellowship, our choir director would say, "Okay, we're honored to have you, glad to have you today. And let's take a few minutes in fellowship. Turn around and shake hands with your neighbor. Walk across the aisle." All of that we could not do, we did not do 'cause we're doing everything we can to keep people as safe as we possibly can.

Lee: Does it feel like church still? That's a lotta hurdles.

Baity: It feels like more church doing that than it does sitting in an automobile lookin' at people through a windshield.

Lee: I bet. Is there a part of you that is concerned that someone might come to church, your church, and contract the coronavirus?

Baity: Well, I feel the same way when I go shopping. And, again, they don't have to come. We welcome them with open arms if they choose to come, but we welcome them at a distance. It's tragic when anyone is in the hospital with any kind of disease or any kind of sickness.

It's tragic when people have to say goodbye to their loved ones. I know what it is. I just buried my wife 12 months ago. She had dementia, and then she had cancer. I know what it is. I know what it is to mourn. I'm very familiar with it. But when there's a tragedy in our country and people are going through hard times, we need each other.

We need each other's presence. We need each other's prayers. We need to hear from scriptures. Many times, people become downcast and they become encouraged through the ministry of the word of God. I've got brothers and sisters around me encouraging me. And together, even though it's difficult, we're gonna make it.

Lee: That is the one thing when I was coming up and going to church as a kid I can always remember the pastor saying, "Turn to your neighbor and give 'em a hug." (LAUGH) I can't imagine--

Baity: Oh yeah.

Lee: --churches doing that now.

Baity: Oh yeah. We do that, and we're glad to do it, want to do it, but we can't do it as of yet. But we're still glad to be there together, so much as is possible.

Lee: That was Pastor Ronnie Baity of the Berean Baptist Church in Winston-Salem, North Carolina. Into America is produced by Isabel Angel, Allison Bailey, Aaron Dalton, Max Jacobs, Barbara Raab, Claire Tighe, Aisha Turner, and Preeti Varathan. Original music by Hannis Brown. Our executive producer is Ellen Frankman. Steve Lickteig is executive producer of audio. I'm Trymaine Lee. We'll be back next week.