7

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Precedent, Performance, and Polarization

The Christian Legal Movement and Religious Freedom Politics during the Coronavirus Pandemic

ANDREW R. LEWIS AND DANIEL BENNETT

During the earliest days of the 2020 coronavirus pandemic in the United States, state and local governments enacted restrictions on large gatherings to slow the spread of the virus. Restaurants were closed, concerts and sporting events canceled, store capacities limited, and religious services halted. It was a sudden and seismic shift in the American way of life.¹

Religious Americans generally complied with orders pertaining to worship services, but many also expressed concerns about this regulation of religious life. Across several national surveys, white evangelicals were more likely than others to support churches defying government restrictions (Djupe 2020). Moreover, there were clear partisan gaps coinciding with support or opposition to these restrictions (Pew Research Center’s Religion and Public Life Project 2020), and another study connected defiance to trust in Fox News (PRRI 2020). In general, the politics of COVID-19 restrictions on churches reflects the growing polarization of religious freedom, one that is poised to play a major role in future—and, in many ways, current—culture wars (see Castle 2019).

In culture wars, political issues draw on competing conceptions of fundamental values and identity, and the sides are often structured around religion (Hunter 1991; Layman 2001). Of late, religious freedom has been integrated into these broader debates. As such, in conflicts over religious liberty, there are two, often simultaneous conversations going on, one legal and one political.

Following the outbreak of the coronavirus pandemic, while most places of worship transitioned to online or distanced outdoor meetings to meet the requirements of local ordinances and recommendations (Cox, Bowman, and Clemence 2020), others fought back. Some argued that these rules violated their rights under the First Amendment, while others said that these rules were evidence of the persecution of people of faith (for more on this, see Chapter 8). The details constituting these legal fights are different across venues, but the houses of worship at the center of these disputes tend to make a similar argument, that state orders regulating places of worship differently than other entities—or even regulating them at all—run afoul of the First Amendment.

This is an argument the Christian legal movement (CLM) has been more than happy to make in its lawsuits and amicus briefs on behalf of houses of worship. Following other research, we define the CLM as legal advocacy organizations that are distinctively Christian and exist to litigate primarily on behalf of Christians (e.g., Bennett 2017). These include groups like Alliance Defending Freedom, the Thomas More Law Center, First Liberty, and Liberty Counsel, among others.

Its legal arguments notwithstanding, the CLM often stokes culture war fears over religious freedom when appealing to a broader audience. This two-pronged dialogue has in-group advantages, to be sure, but it may also hamper efforts to construct useful (and necessary) coalitions and build stable religious liberty jurisprudence in the years to come. When religious freedom becomes polarized, it is less likely to have broad support in the courts.

In what follows, we examine the interplay between the legal and political conversations among conservative Christians, including the CLM. We evaluate this movement’s response to COVID-19–related regulations on places of worship in the United States, incorporating public opinion data about restrictions on religious life. We suggest that the conflict over public health orders during the COVID-19 pandemic was a symptom, not a cause, of the growing partisan polarization of religious freedom in the United States. These public legal arguments have the potential to emphasize culture war rhetoric over religious freedom, continuing to polarize this topic with damaging consequences not only for public health but also for the prospect of robust protections for free exercise in the years to come.

The Prepandemic Politics of Religious Freedom

The polarization of religious freedom has happened among both elite political activists and rank-and-file citizens. Among the legal activists on the Right, there has been a growing emphasis on reframing cultural battles as the protection of fundamental rights, particularly the rights to religious liberty and free speech. This has taken hold particularly among conservative Christian activists (see, e.g., Brown 2002; Lewis 2017), though it is also present within the broader conservative legal movement (see Decker 2016; Hollis-Brusky 2015; Southworth 2008). As religious freedom is increasingly used as constitutional leverage in our legal culture wars, particularly in cases involving conflicts over sexuality, critics have charged that the Right is misapplying religious freedom. The New York Times and The Atlantic have characterized the Right as “weaponizing” the First Amendment and religious freedom (Gillman and Chemerinsky 2020; Liptak 2018). Democrats in Congress have called for an amendment to the 1993 Religious Freedom Restoration Act that restored broad religious freedom protections through a bipartisan effort—the amendment would limit the application of religious freedom claims as a defense against discrimination (Dallas and Brown 2019).

Within public opinion, there is also a growing divide over religious freedom. Over the past decade, surveys from the Pew Research Center and the Public Religion Research Institute have found growing partisan division over religious freedom protections, particularly over the requirement for religious business owners to provide services for same-sex weddings (Mitchell 2016). This picture fits with other analyses that suggest partisanship and religion are driving not only division but polarized attitudes toward religious freedom (Castle 2019; Lewis 2020).

There is not just a divide over religious freedom but also who should be protected. As religious freedom has become a part of the culture wars, white evangelical Christians express that their rights are under threat, even more than traditional minority groups like Muslims (e.g., Green 2017). Studies also find that higher levels of authoritarianism (Castle 2017) and traditionalism (Goidel, Smentkowski, and Freeman 2016) are related to greater support for religious freedom and the free exercise of religion. This combination of traditionalism, populism, and Christian nationalism (Guth 2019; McDaniel, Nooruddin, and Shortle 2011; Whitehead and Perry 2020) is likely why groups like evangelical Christians are less tolerant of Muslims and their religious rights (Shortle and Gaddie 2015; Uddin 2019). Moreover, experimental studies show that support for religious freedom in public accommodations is not driven by religion as much as other types of discriminatory views (Powell, Schnabel, and Apgar 2017) or disgust for outgroups (Djupe et al. 2021).

In 2020, the COVID-19 pandemic intersected with the two-pronged dynamic of polarized religious freedom. Activists from the CLM were ready to apply their thirty years of litigation experience to challenging pandemic restrictions as unconstitutionally violating sincerely held religious convictions. At the same time, Republicans, and especially white evangelicals, had a growing sense that religious freedom was under threat by secularists and Democrats. During the pandemic, this feeling was exacerbated by President Donald Trump, leading Republican officials, and many CLM organizations.

The Christian Legal Movement and Religious Freedom Politics

The Christian legal movement advocates for issues important to (conservative) Christians in the United States and around the world. The CLM is generally focused on issues aligned with conservative Christians, such as supporting a strong understanding of religious freedom; promoting traditional conceptions of sexuality, gender, and the family; and opposing legal abortion in the name of defending the sanctity of human life. This movement is composed of legal interest groups, law schools, and legal training programs, all with the purpose of building a support structure for the movement (Hollis-Brusky and Wilson 2020).

Even though groups like Alliance Defending Freedom get the lion’s share of attention and do the heaviest lifting in court, one must also pay attention to the CLM to understand how the rhetoric from this movement shapes ongoing culture war controversies. For example, it was the relatively minor organization Liberty Counsel that drew national attention for its defense of Kentucky clerk Kim Davis, who refused to issue marriage licenses following Obergefell v. Hodges (Lopez 2015). Liberty Counsel and groups like it may not have the pedigree or credibility of larger, more successful organizations, but they can shape the cultural narrative nonetheless. And given the competition for limited resources among like-minded interest groups, it is only natural for smaller, less influential organizations to sometimes make more hyperbolic and outlandish arguments to secure attention and support (e.g., McCarthy and Zald 1977).

The CLM and the Politics of Opposing COVID-19 Restrictions on Religious Gatherings

Perhaps because of the desire to carve out a niche in an otherwise crowded community, several Christian legal groups have been active in litigation on behalf of churches challenging pandemic regulations. Liberty Counsel was involved in one of the country’s first lawsuits on these questions, jumping to the defense of a Virginia pastor who faced penalties for continuing to hold in-person church gatherings in violation of state orders (Liberty Counsel 2020a). Alliance Defending Freedom represented two churches who sued Oregon’s governor for maintaining restrictions on churches (Alliance Defending Freedom 2020b) and has since defended a church challenging Nevada’s person limit on attendance (Alliance Defending Freedom 2020b). First Liberty Institute won a restraining order against a Kentucky policy limiting in-person services (First Liberty 2020a). And the Thomas More Society touted its efforts defending California pastor John MacArthur, whose church fought, unsuccessfully, virtually all of California’s restrictions against in-person gatherings (Thomas More Society 2020).

One of the earliest legal challenges to pandemic-related restrictions took place in Virginia, after the pastor of Lighthouse Fellowship was cited for holding an in-person service with sixteen people, exceeding the ten-person limit set by the state (Jouvenal 2020). Liberty Counsel represented the church, focusing its arguments on the religious freedom rights of the church and the pastor. Core to the legal argument was that Virginia exempted “essential retail businesses” from the ten-person limitation but did not do so for religious gatherings. Requiring church meetings to abide by the ten-person limitation resulted in “discriminatory restrictions on religious worship services” (Liberty Counsel 2020b).

At the same time, Liberty Counsel’s legal approach stoked anger over perceived government persecution of churches. Appearing before the Fourth Circuit Court of Appeals, Liberty Counsel argued that Virginia’s governor “continu[ed] to place his thumb on houses of worship” (Liberty Counsel 2020b). Liberty Counsel also praised the Trump administration for the Department of Justice’s involvement, as well as Vice President Pence’s statements of support, elevating the administration’s support for religious freedom in the face of discrimination. “It is reassuring,” declared Mat Staver, the founder of Liberty Counsel, “to have an administration that supports religious freedom” (Liberty Counsel 2020c).

This pattern of coupling legal defense with culture war politics—the escalation of cultural tensions especially between the faithful and the secular—was followed by other Christian legal groups. In the spring, First Liberty Institute defended churches in Kentucky opposing Governor Andy Beshear’s restrictions. The lawsuit emphasized the churches’ religious freedom and assembly rights under federal and state constitutions. Simultaneously, First Liberty used the events to elevate religious freedom threats and polarize conservatives against liberals (First Liberty 2020b). Debates over public health restrictions on churches were described as an “all-out war on faith” (Gomez 2020a), and the group claimed to have exposed the “real agenda of our opponents: to keep our churches shut down indefinitely and attack religious freedom in America” (Gomez 2020b). The American Center for Law and Justice, meanwhile, also emphasized the polarization of religious freedom to promote its work, arguing that “extremists on the Left are using the coronavirus as an excuse to attack Christians” (Sekulow 2020).

Such polarizing claims did not necessarily originate with the CLM, but they did find favor with elected Republicans. Though the CDC issued measured guidance for churches considering holding in-person services, President Trump emphasized political division, leveraging religious freedom rhetoric for political gain. On May 22, President Trump mirrored the arguments of Christian legal groups about churches being excluded from essential status, declaring that if governors did not allow churches to open immediately, he would “override the governors” (Gearan et al. 2020). In August, Trump told the Catholic cable network EWTN that Democrats were using the coronavirus to “put the churches out of business” (Czachor 2020). And at the Republican National Convention, Donald Trump Jr. echoed this argument, citing recent protests over racial injustice: “People of faith are under attack. You’re not allowed to go to church, but mass chaos in the streets gets a pass” (Jenkins 2020).

Partisan Religious Freedom Advocacy and Public Support for Religious Exemptions to Public Health Protocols

There are consequences to the rhetoric by CLM organizations and Republican politicians, particularly in public opinion. Within weeks of the pandemic hitting the United States, surveys found that a strong majority of churches reported meeting virtually or canceling services (Cox, Bowman, and Clemence 2020; Djupe 2020; Lifeway Research 2020a). That consensus, however, gave way to cautious reopening for many congregations and resistance to health protocols by some (Djupe and Burge 2020; Lifeway Research 2020b). The resistance rhetoric mapped onto party politics. Folding religious freedom rights into divisive partisan rhetoric seems to have contributed to public division over religious freedom and public health, and it has the potential to strain broad support for religious liberty.

The Partisan Evolution of Supporting Religious Freedom Exemptions to COVID-19 Restrictions

To analyze the relationship between partisanship and support for the rights of churches to circumvent COVID-19 protocols, we turn to two surveys conducted in the spring and fall of 2020. In March and October 2020, we, along with some colleagues, conducted two national surveys that asked about support for religious practices during the coronavirus pandemic. We asked a battery of items on both surveys to tap support for the religious freedom rights to meet in person (for additional, related analyses, see Djupe and Burge 2020). The survey questions asked the following items, with responses ranging from strongly agree to strongly disagree:

•The freedom to worship is too important to close in-person religious services due to the coronavirus.

•The government should tell churches and houses of worship that they should stop meeting in person to prevent the spread of the coronavirus (reverse coded).

•If the government told us to stop gathering in person for worship, I would want my congregation to defy the order.

We used these items to construct an additive religious freedom index, and statistical measures confirm that the index holds together well.² The index ranges from 0 (strongly support closure of in-person services) to 12 (strongly support religious freedom rights to meet in person). In March, sentiment was more favorable to religious services being closed, with the mean response being 4 out of 12. By October, support for congregations opening and resisting public health recommendations had grown to 5.5 out of 12—more than a 30 percent increase.

Republicans were much more likely to move toward supporting religious freedom rights to resist COVID protocols, as is clear from Figure 7.1. In March, there was only about a half-point difference between Democrats (3.83) and Republicans (4.42), with the Democrats more supportive of the government closing houses of worship. In October, sentiment had shifted toward resisting closure. Democratic support for resisting public health measures increased slightly from 3.83 in March to 4.29 in October, while Republican support dramatically increased from 4.42 in March to 6.95 in October. Independents, too, were much more supportive of resisting closure. The political changes were clearly not reserved for legal filings but had filtered into public opinion, where they were structured by partisanship.

Multivariate models with standardized independent variables help solidify the effects of partisanship, while controlling for trust in health professionals, religious affiliation and attendance, and demographic factors. Figure 7.2 layers the results from the March and October surveys for comparison, with the solid dots representing the results from the March survey and hollow squares representing the results from the October survey. In March, partisanship was a significant predictor of support, where the solid, horizontal line is to the right of the vertical dashed line (overlap with that dotted line symbolizes no effect) and does not cross it (meaning it has a positive and statistically significant effect). People who were more Republican were more likely to support religious freedom exemptions. The magnitude of this effect was small, though (similar to being Catholic or evangelical), and substantially trailing the effect of more frequent church attendance.

Figure 7.1 Mean of COVID Religious Freedom Index by Party Identification in March 2020 and October 2020 Surveys. Note: Comparing two confidence intervals produces a 90 percent test. (Source: March and October 2020 surveys.)

By October, the effect of partisanship had become more pronounced. In the fall, partisanship outpaced religious identity in its link to support for religious freedom exemptions. It matched the effect of religious attendance—a large change from the spring. In fact, partisanship had the largest movement from the spring to the fall, one of only a few variables to have a significant difference between the two surveys. Only trust in health professionals (less supportive of religious freedom exemptions and defiance) and education (more supportive) showed significant change from March to October.

How Partisanship Alters Public Support for Religious Freedom

In addition to the cross-sectional surveys, evidence from a survey experiment in the October 2020 survey also supports the role of partisanship in structuring public opinion on religious freedom. Participants were asked whether they agreed with a positive, boilerplate statement about religious freedom from a political candidate. The source of this statement was randomly assigned to be either a generic “both candidates” or the Republican or Democratic candidates for president, Donald Trump or Joe Biden, respectively. The experiment was separated from the COVID religious freedom index items (used above) by several minutes, though the topics of the survey and the real-world context were likely to link the general religious freedom candidate statements to the religious freedom disputes over public health disputes for some. However, the correlation between the index and agreement with the candidate statement is a modest 0.26.

Figure 7.2 Multivariate Models of Support for COVID Religious Freedom Index. Note: 90 percent confidence intervals. Controls for other religion, Jewish, unclassified religion, race, sex, and age are not displayed. (Source: March and October 2020 surveys.)

Beyond the linking of general support for religious freedom to COVID-19 conflicts, there are clear partisan divisions over general support for religious freedom. Partisans were more supportive when their candidate made a pro-religious freedom statement, but, importantly, opinions were particularly polarized when President Trump supported religious freedom. Figure 7.3 shows the marginal effects, where Republicans were more likely to support Trump’s religious freedom statement while Democrats were more likely to oppose it.

More follow-up questions in this religious freedom battery confirm the general finding. Partisan cues polarize religious freedom, especially when they are tied to President Trump (Lewis 2020). In addition, follow-up questions indicate that partisans expressed differences on the groups who are perceived to benefit from religious freedom protections. Republicans consistently thought white Christians would be the beneficiaries, while Democrats were more likely than Republicans to select Muslims as beneficiaries when a Democratic presidential candidate expressed support. In total, evidence from the coronavirus pandemic suggests that more specific religious freedom disputes during the pandemic were structured by partisanship, especially by fall of 2020. If support for a constitutional protection like religious freedom is linked to what group might benefit and is conditional on partisanship, this is concerning indeed.

Figure 7.3 Marginal Effects of Candidate Statements Affirming Religious Freedom on Public Support. Note: Comparing two confidence intervals produces a 90 percent test. (Source: October 2020 survey.)

Discussion

Polarizing religious freedom comes at a cost. For one thing, while the public was predictably divided over these issues, legal actions and rhetoric in some cases have obscured legitimate concerns where religious congregations were overburdened. For example, in the summer of 2020 a Nevada church challenged state restrictions limiting indoor church gatherings to fifty persons, while restricting much larger venues (such as casinos) to 50 percent capacity (Liptak 2020). Though the Supreme Court denied injunctive relief, the Nevada church had a far better legal argument than, say, John MacArthur’s California megachurch, which refused to abide by virtually any pandemic regulation, including those related to gathering size, mask wearing, and social distancing (Shimron 2020).

Not surprisingly, this polarization of religious freedom threatened to diminish the stark reality of the pandemic, potentially leading people of faith to downplay just how serious the health crisis was at its apex. MacArthur himself repeatedly cast doubt on the seriousness of the situation, telling congregants in an August 2020 sermon that the numbers of COVID-19 deaths were inflated before concluding, “There is no pandemic” (Wingfield 2020). Additionally, research has highlighted a growing divide over the reasonableness of restrictions on churches during the pandemic. Partisanship plays an important role, as do prosperity gospel beliefs (Djupe and Burge 2020). The marriage of religious freedom polarization and COVID denialism threatened to unnecessarily exacerbate the crisis during the winter months, just ahead of the release of vaccines to the public.

These tensions only amplified as the pandemic raged on. Late in 2020, the Supreme Court weighed in on New York’s restrictions on in-person worship, enjoining the ten- and twenty-five-person limits on attendance and finding that these restrictions are likely to be unconstitutional upon closer review (Roman Catholic Diocese of Brooklyn v. Cuomo 2020). “Even in a pandemic,” reads the court’s per curiam opinion, “the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.” And though the dissenting justices argued that the court’s decision was both ignoring the government’s concern for public health and unnecessary given recent changes to the policy, Justice Gorsuch memorably wrote that the restrictions treat houses of worship different from their nonsectarian counterparts. “Who knew,” Gorsuch facetiously asked, “public health would so perfectly align with secular convenience?”

Notably, Washington University’s John Inazu agreed with the court’s decision yet played down its widespread importance, referring to it as “fairly fact-specific injunctive relief” before adding, “It’s hard to generalize much from this decision, and I’m concerned that public messaging about it will fuel a broader culture wars narrative” (Inazu 2020). And that’s precisely what happened. Following the decision, the Alliance Defending Freedom declared, “The Constitution forbids government officials from treating religious Americans like second-class citizens” (Alliance Defending Freedom 2020c), while First Liberty Institute added, “Government officials may not abuse their emergency powers to discriminate against Americans of faith” (First Liberty 2020c).

On the other side, though, the New York Times columnist Paul Krugman tweeted, “The first major decision of the Trump packed court—and naturally it will kill people” (Krugman 2020), while New York governor Andrew Cuomo dismissed the court’s ruling because of Trump’s Supreme Court’s appointments and the majority’s conservative ideology (McKinley and Stack 2020). Rather than interpreting the decision as a limited defense of the First Amendment during an unprecedented health crisis, both sides of the divide sought to capitalize on the most extreme readings of the decision and to use it as an example of why “the other side” must be defeated at all costs. As we have suggested in this chapter, this is a problem for the future of religious freedom in the United States.³

Conclusion

When houses of worship and Christian legal groups challenge reasonable restrictions and link their efforts to partisan politics and cultural polarization, they hamper efforts to vouchsafe religious freedom writ large and build support for the broader cause. Legitimate questions are not only dwarfed by the propensity by some churches and advocacy groups to rebuff any government regulation, but such actions inhibit broader political support for religious freedom. And limited political support will, in time, diminish legal protections. Moreover, even when courts invalidate problematic restrictions, advancing a culture war narrative connected to religious freedom only furthers this problematic divide. Put differently, the increased connection between religious freedom and partisan politics is a troubling development for a robust and widespread free exercise clause.

The polarization of religious freedom did not begin with the arrival of COVID-19, but it certainly did not diminish during the pandemic, either. The CLM may win smaller battles and garner immediate political support by fighting tooth and nail against even the most minute public health regulation, but this strategy does little to win the larger war for expanded religious freedom protections for all.