NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 31st of August, 2020. Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. The legal ramifications over COVID restrictions are a long way from being over. We’ve reported here about Pastor John MacArthur’s stand with his church in California, Grace Community Church. Cases out of Nevada, New York, Florida, and others as well.
What’s sometimes lacking in reports about these conflicts are the reasons why the mandates are a problem to some people of faith.
EICHER: Today, a bit of a twist. A novel legal theory based on jurisdiction. In other words, challenging state officials who are making rules in areas where they lack authority to make rules.
AUDIO: [Phone rings] Hello? Pastor Darryl here.
MARY: Hi, Pastor Darryl. Mary Reichard…
REICHARD: Pastor Darryl Knappen leads Cornerstone Church in Alexandria, Minnesota. When the shutdowns began in March, his church complied, but he quickly realized many of his congregants do not have internet access. It isn’t possible for them to get on Facebook Live to watch services. The most vulnerable of his people were cut off from the lifeline of their church.
Knappen describes how his flock does things.
KNAPPEN: Well, I don’t know about other denominations, but all I know is what the Bible commands us to do. I mean, when Romans 12:10 says, “love one another with brotherly affection,” how do you show brotherly affection online? You don’t. Affection is physical. So you can’t do that from a distance. You can’t do that six feet apart. 1st Corinthians 11:33 says when you “come together to eat.” So the new Testament church ate together often. And we do that here twice a month, at least. 2nd Corinthians 13:11 says comfort one another. How do you comfort one another long distance? You don’t. It’s the intention there to show physical comfort: hold that person’s hand, put your arm around them, comfort them.
Knappen goes on to cite Ephesians 5 and Colossians 3:16 that instruct us to admonish one another with Psalms and hymns and spiritual songs.
KNAPPEN: How do you admonish one another in songs when you’re viewing online? You’re not together. New Testament church requires us to worship in person, period. There’s just no, no way around that.
So for this Baptist church the state mandates interfere with its understanding of how worship is to be carried out.
Still, plenty of people disagree with this stance. Christians disagree over it, even when restrictions target religious worship in particular, apart from similar gatherings of number, duration, and space.
Others have told me it’s a terrible witness for Christians to go against the mandates. Why rock the boat?
I asked Knappen about that.
KNAPPEN: I would say to that non-believer: I hear you! You’re asking us to be very cautious about people’s physical well-being and the answer to you is we want to be very cautious about people’s physical well-being. But we are even more concerned about people’s spiritual and emotional well-being. When we see suicide rates skyrocketing, people losing their jobs and not being able to pay for their family’s food? And losing their houses—they can’t pay their mortgage. They need a place like the church where they can come and have fellowship with people, have our arms put around them. And if need be take up an offering to help pay next month’s mortgage. So they won’t be tempted to take their own life and escape all of those fears. So that makes church extremely essential.
Other states have exempted religious services from mandates: Illinois, Texas, and Ohio, for example.
So Cornerstone and two other churches in Minnesota filed a complaint in U.S. district court earlier this month. It seeks an injunction against the mandates and declaratory judgment about rights and obligations going forward. The lawsuit names Governor Tim Walz, Attorney General Keith Ellison, and three county lawyers where the churches are located.
I reached out to speak to the attorney general’s office on the other side of this dispute but did not hear back. No big surprise. You typically won’t hear from the AG’s office in pending matters.
As for Knappen’s lawyer Erik Kardaal? He’s got a lot to say. Kardaal is with the Thomas More Society, a religious liberty firm.
KARDAAL: There have been some temporary successes, but the U.S. Supreme Court has kind of become stuck on this point about what standard we use during a pandemic. So what we’re exploring and aggressively pursuing is a theory that the governors don’t have the authority to regulate religious practices, particularly under the respective state constitutions. And we’re finding that there’s a lot of case law support for that.
When the government wants to infringe upon rights guaranteed under the First Amendment, it must first meet the highest level of review: that of strict scrutiny.
I asked Kardaal if that’s the standard that he’s asking the court to use in this case.
KARDAAL: No, actually not. There’s votes out there in the federal courts saying that during a pandemic we might have to use a different standard? But the beautiful thing about the way we’re arguing the cases that these governors who are out beyond their state constitutional authority to prohibit church practices and so forth, that when you challenge the governor’s order on ultra vires grounds, that is, the governor doesn’t have the legal authority to do what they’re doing to churches? Then if you win on that point, then you won the case. Because if the governor’s orders are legally unauthorized, then you never get to the strict scrutiny test or lower pandemic standard.
Kardaal told me he’s been busier than ever these days, and not only because churches are asking for help. Small business owners losing their shirts because of the extended shut downs…
KARDAAL: Then legislators and churches, then voters. This week on behalf of parents of schoolchildren who don’t have their public schools open. And then we’re looking at a lawsuit on behalf of landlords. They’re all rooted in the idea that the governors are exceeding their jurisdiction in response to the pandemic. And they should be working with state legislatures to have a more reasonable response to the pandemic than going it on their own. It’s a very un-American thing to do.
I asked Kardaal the same question I asked his client: Why not just do as we’re told, and witness in that way? Or is he thinking about this in another way?
KARDAAL: I think that people need to be better at political theory. And I think Christians need to be open to the idea that they need to engage in processes to improve government performance. And so this one single lawsuit, what we’re saying is the churches are going to engage the court to get better government performance so that the government isn’t criminalizing religious practice and the way it is. And if the governor in this case is operating without legal authority, ultra vires, well, of course the governor’s executive orders should be treated as if they’re not worth the paper they’re printed on.
Pastor Knappen told me his people are fearful, and yet that’s what he guides them to do: follow their conscience. And observe what’s going on around you.
KNAPPEN: I just had dinner with one the other night, and her employer said to her, I see that your church, when you come together to worship, you’re not wearing masks. And the employer did not tell her that she would be fired, but there was strong implication that that was highly, highly discouraged. I mean, it reaches into our worship. That is painful. That is fear.
And that’s this week’s Legal Docket.