The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Wednesday, the First Pentecostal Church in Mississippi burned down. The police suspect arson. Investigators found graffiti on the lot that read, ""Bet you stay home now you hypokrits." Before the fire, the church had challenged the City of Holly Springs's closure order.
The district court denied injunctive relief "in an expedited fashion," and the church appealed to the Fifth Circuit. The per curiam panel (Higginbotham, Southwick, and Willett) granted partial relief. Specifically, the court enjoined portions of the closure order, so long as the church complies with certain social-distancing guidelines:
Accordingly, we recognize that in this fast-shifting landscape of COVID-19 regulations, temporary deferral of a decision may effectively be a permanent denial. In the interim, pending the district court's decision, the City is enjoined from enforcing against the Church the Faith Based Organizations sections of Executive Order 6 and Executive Order 7.
Judge Willett wrote a one-page concurring opinion. He faulted the city for how it characterized the tragic burning of the church:
The First Pentecostal Church of Holly Springs was burned to the ground earlier this week. Graffiti spray-painted in the church parking lot sneered, "Bet you Stay home Now YOU HYPOKRITS."
The City mentions the church burning in its latest brief, but in a manner less commendable than condemnable. One might expect a city to express sympathy or outrage (or both) when a neighborhood house of worship is set ablaze. One would be mistaken. Rather than condemn the crime's depravity, the City seized advantage, insisting that the Church's First Amendment claim necessarily went up in smoke when the church did: "the Church was destroyed from an arson fire . . . making the permanent injunction claim moot."
This argument is shameful.
Willett explains that the church is not the building; the church is the parishioners.
When the parishioners of First Pentecostal Church leave their homes on Sundays, they are not going to church; they are the church. The church is not the building. When the New Testament speaks of the church, it never refers to brick-and-mortar places where people gather, but to flesh-and-blood people who gather together.1 Think people, not steeple.
He adds a fun tidbit that I did not know:
"Ekklesia," the Greek word for church, means the gathered ones, an assembly of the faithful. See Ekklesia, The Oxford Dictionary of Byzantium (Alexander P. Kashdan ed., 1991) ("personification of the church").
Willett echoes a position adopted by the Sixth Circuit, but rejected by other courts: houses of worship should not be treated worse than secular places of assembly:
I concur in the court's grant of injunctive relief. Singling out houses of worship—and only houses of worship, it seems—cannot possibly be squared with the First Amendment. Given the Church's pledge "to incorporate the public health guidelines applicable to other entities," why can its members be trusted to adhere to social-distancing in a secular setting (a gym) but not in a sacred one (a church)?
The closing is pitch-perfect:
Their sanctuary may be destroyed (for now), but when congregants congregate this Sunday, whether indoors in another facility (which has been offered) or outdoors in a parking lot, they will come together knowing that a church is not a building you go to but a family you belong to.
Kudos to Judge Willett, who wrote this opinion very quickly, but carefully.