As our nation finds it way forward after weeks of pandemic-related lockdowns, governments have unfortunately treated churches and religious gatherings differently—and often less favorably—than comparable secular gatherings. This means the actions taken by some states are discriminatory.

Fortunately, defenders of the First Amendment successfully restored their right to worship in-person (albeit in a limited capacity) last week in Wisconsin. Despite this, the fervor with which many local governments have cracked down on religious gatherings, in contrast to their enthusiasm for large-scale protests, shows that a stark double standard exists.

Of course, everyone recognizes the importance of peaceful protests. Government officials have generally not objected to them, even in light of restrictions related to the coronavirus. In fact, many government officials have encouraged them.

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Not so for religious gatherings, though.

Two weeks ago, a dispute over California’s reopening plan even prompted a rare late-Friday night order from the Supreme Court, in which the four liberal members and the chief justice—over dissent from the four conservative members—refused to strike down California’s discriminatory reopening plan.

Fortunately, California relented, and churches have been able to resume some in-person services, though still not on the same scale as other businesses have been able to operate.

Clearly, discriminatory treatment of churches persist. Until last week, the governments of Madison, Wisconsin, and surrounding Dane County were notable examples.

As the Becket Fund for Religious Liberty pointed out, “Under Madison/Dane County’s previous [reopening] order, shopping malls, bars, restaurants, spas, gyms, salons, museums, movie theaters, community centers, bowling alleys, skating rinks, and trampoline parks were allowed to open at 25 percent capacity, while houses of worship were subject to an arbitrary 50-person cap regardless of how large the church building was.”

In practice, this meant that some churches “were held to less than 5 percent capacity.”

Moreover, threats communicated by government officials as to how they would enforce these orders were particularly troubling. 

Becket said, “[T]he Madison/Dane County Health Department multiple times called and visited [Catholic] officials and parishes to inform them that surveillance officials would be sent to churches and fines of up to $1,000 would be imposed for every instance in which more than 50 people were gathered for Mass.”

At least they weren’t threatening to record the license plates of all attendees (that we know of), as other government officials have done.

As protests emerged after the senseless death of George Floyd, Catholic officials in Madison decided that enough is enough. Protesters and the protested alike needed prayers. And more importantly, many in the community needed the spiritual guidance and the physical assistance that communities of faith can provide.

So, last Wednesday, attorneys for the Catholic Diocese of Madison sent a detailed 17-page letter to Madison and Dane County officials highlighting the constitutional problems caused by their reopening plans’ unequal treatment of religious gatherings. 

The letter informed the officials that if they didn’t revise their plan to treat religious gatherings the same as other comparable nonreligious gatherings by that Friday (June 5), the diocese would have no choice but to sue.

In a rare glimpse of good news, it didn’t come to that. City and county officials revised their reopening plans and allowed churches to resume in-person services at 25% capacity.

As Eric Rassbach with the Becket Fund said, “We’re glad that Madison and Dane County came to their senses, but it shouldn’t have taken so long … Most other governments nationwide have already lifted their COVID-related restrictions on worship. The few remaining holdouts should take note and come into compliance with the First Amendment.”

Amen to that.

New York City’s mayor, Bill de Blasio, would do well to pay close attention. When asked why mass protests, an activity protected by the First Amendment when peaceful, are OK during the current pandemic, but large religious gatherings, also an activity protected by the First Amendment, are not, de Blasio gave a more honest answer than he probably intended.

It was obvious from his response that the cause of the protesters is important to him. The cause of religious individuals, less so.

That should terrify us. Government leaders picking and choosing which constitutionally protected activities are permissible defeats the very purpose for which the Framers put those protections in place. They’re fundamental rights not subject to the whims of the majority or of potentially hostile elected officials.

While the chief justice emphasized the need for broad deference to elected officials during the pandemic and warned against “second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to asses public health and is not accountable to the people,” he must surely agree that such picking-and-choosing runs afoul of the Constitution and wouldn’t be the type of impermissible second-guessing he’s worried about.

Consider this: At the end of April, de Blasio said, “My message to the Jewish community, and all communities is this simple: The time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period.”

But today, as the mayor struggles to get his city under control, to stop rioting, and to protect peaceful protesters, NYPD officers patrol the city’s Jewish neighborhoods to shut down businesses and break up Torah study sessions while massive protests occur only a few miles away.

If this doesn’t smack of unequal treatment, what does?

Everyone must remember that both prayers and protests are protected during this current pandemic. The government should not prohibit either. More importantly, government officials cannot permit one while prohibiting the other based solely on their policy preferences.