Photo Credit: Manhattan Beach Jewish Center

The Covid-19 crisis has tragically reminded us of the supreme value that must be placed on pikuach nefesh. Unfortunately, it has also revealed governmental indifference toward religious observance.

In Kansas, Governor Laura Kelly issued a stay-at-home order that made exceptions for businesses so long as social distancing was observed. Shopping malls and bars were covered by these exceptions; religious organizations were not. In fact, her order expressly prohibited “churches and other religious services or activities” from having more than 10 people gathered together, no matter how spaced out. In other words, her order discriminated against faith, treating it as less important than alcohol.


Working with the religious liberty advocacy group Alliance Defending Freedom, two small churches in rural Kentucky filed a lawsuit. In response, the court quickly entered an injunction that permitted churches to “do business” subject to the same anti-contagion precautions and restrictions that applied to secular “essential businesses.”

In Wake County, North Carolina, churches faced similar anti-religious discrimination when the county prohibited them from collecting “tithes” or distributing sanitary, pre-packaged pieces of communion bread through car windows at drive-in, parking lot services.

In surrounding neighborhoods, though, countless cars were crowding McDonalds and other drive-through restaurant parking lots. Customers rolled down windows, handed over money, and received their food though a drive-through window.

Feeding the body a burger? Yes. Feeding the soul? No.

Like a biased umpire, the county had one strike zone for secular organizations and a much smaller strike zone for religious ones. Fortunately, after Alliance Defending Freedom worked with local churches to challenge the order, officials quickly revised the policy and religious gatherings were treated equally.

Perhaps the most publicized instance of government discrimination against religion during this pandemic has surprisingly occurred deep in the “Bible Belt,” in the small town of Greenville, Mississippi. On Wednesday, April 8, a small group of Christians gathered at Temple Baptist Church for an evening drive-in church service – each family in its own car, listening to the minister through the car radio.

Suddenly, police cars entered the parking lot with lights flashing. Officers approached the worshipers’ cars, disrupted the service, and began giving the churchgoers $500 tickets for violating the city’s executive order. Meanwhile, just down the street from Temple Baptist is a Sonic Drive-In, where customers gather in their cars, roll down their windows to order, and receive food from servers.

Even when challenged, the city of Greenville refused to revise its policy. Once again, Alliance Defending Freedom had to file a lawsuit on behalf of the church, claiming its right to equal treatment under the law. This time, the U.S. Department of Justice filed a brief supporting the church’s position. City officials reconsidered and changed the policy so that religious organizations and meetings are treated fairly and equally.

Brooklyn is a very different place than rural or small-city America, and has suffered much more intensely from Covid-19. Jewish observances are different than Baptist observances. Stricter measures to fight Covid-19 may be called for in a densely-packed city. But constitutional principle remains constant and essential. And all measures necessary to protect life need to be applied equally in a manner that respects, rather than trivializes, faith and religious observance.

New York Governor Andrew Cuomo recently announced a four-phase plan for reopening New York. Phase one includes construction and manufacturing. Phase two includes retail and finance. Phases three and four include restaurants and entertainment venues. A return to the days of crowded shuls and exuberant simchas is not yet on the horizon, but the absence of reference to careful and small-scale religious gatherings in the governor’s plan is troubling.

Once the government grants secular New York City businesses the right to have a certain number of people in a particular size space, Jewish communities – like their brethren in Christian communities – must be afforded the same freedom to gather for religious observance subject to the same precautionary measures.

If 10 people can gather (socially distanced) in one room to manufacture products or ship packages, then 10 adult Jewish men must be permitted to gather (socially distanced) for a minyan. After all, for people of faith, obedience to G-d is the most essential business of all.


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Barry Black is the Religion Law columnist for the New York Law Journal and a partner at Nelson Madden Black LLP. Roger Brooks serves as senior counsel with Alliance Defending Freedom.