Rachel del Guidice / @LRacheldG /
Father Timothy Sas processioned around the empty pews with the help of Steven Thell, an acolyte, during the vespers of the unnailing on Good Friday. Under normal circumstances there would be a much larger procession moving throughout the church. (Photo: Alex Kormann/Star Tribune via Getty Images)
Last week, Catholic bishops in Minnesota and Lutherans in the Lutheran Church–Missouri Synod united to go against Minnesota Gov. Tim Walz’s stringent order that only allowed 10 people at church services.
Diana Verm, senior counsel with Becket Law, joins The Daily Signal Podcast to discuss the stand they took that brought Walz, a Democrat, back to the negotiating table and the work done by Verm’s law firm on behalf of faith leaders in the state.
Listen to the podcast, or read the lightly edited transcript below.
Rachel del Guidice: I am joined today on The Daily Signal Podcast by Diana Verm. She’s senior counsel with Becket Law whose work has included domestic and international litigation, including defending the Pledge of Allegiance in public schools.
Diana, it’s great to have you on The Daily Signal Podcast.
Diana Verm: Hi, Rachel. Thanks so much for having me.
Del Guidice: Well, thank you so much for being with us.
So, Catholics and a number of Lutherans in the Lutheran Church–Missouri Synod had joined forces to go against the governor of Minnesota’s stringent stay-at-home order to only allow 10 people at church services, and subsequently Gov. Tim Walz issued another executive order on Wednesday limiting religious services.
Before we go into what the governor’s change of mind did, can you talk about these church leaders and why they chose to take this public stand against the governor?
Verm: These churches have been working hard throughout the pandemic to love their neighbors, to protect their communities from the spread of illness.
They saw the threat, they voluntarily closed their worship services, and they moved to online worship before the governor required it. And they’ve been working with the governor and his administration to develop protocols as they can resume worship safely.
So they were very disappointed when on May 13 the governor issued a new rule that allowed malls and other retail to begin opening at 50% capacity, but continued to restrict churches to 10-person worship services. And the governor published a plan for restaurants and salons and tattoo parlors to be opened by June 1 but not churches.
So on Wednesday, May 20, the governor had his press conference where he said, “Here’s the plan for reopening restaurants. These things are so important to our lives. They’re so essential in our lives. We really need restaurants and bars to be reopened,” but didn’t say anything about churches.
The guidance for churches said, “Churches are at the back of the line for reopening.” There was no timeline for them.
So at this point, the churches had been reaching out to the governor. They had been doing their best to find ways to reopen safely.
They realized the governor was not going to work with them, so they sent him a letter saying, “We are planning to reopen on May 26 in advance of Pentecost Sunday.”
I’m a lawyer at the Becket Fund and we sent a letter to the governor as well, explaining the legal problems with opening retail and other things, but not churches, but the governor did come to the negotiating table and he did change the rule.
Del Guidice: … You mentioned the frustration behind there being inconsistencies with commerce and other institutions having the ability to operate, but not churches, did you see inconsistencies there? And what were pastors and parishioners saying about that as well?
Verm: It is really frustrating for these churches to be working so hard for their communities and trying to find creative ways to serve their communities online, remotely, with social distancing and to be really part of the efforts to protect people and to support the economy during this crisis, and then [be] told, “It’s safe for malls to reopen. The Mall of America can open at 50% capacity, but it’s not safe for churches to reopen for more than 10 people to be in the cathedral in Minneapolis-Saint Paul.”
So it is very frustrating, but it’s also unconstitutional … the First Amendment says that you can’t treat churches as special disability.
And so these churches were seeing, “OK, we’re trying to find ways to serve our community, but we’re being prevented from doing that. And our constitutional rights are at issue here.”
So they told the governor, “We’re going to start worshiping again with or without your blessing.” And, fortunately, the governor was willing to work with them once they made that announcement and changed the rule to allow churches open now at 25% capacity.
Del Guidice: In your work representing this and being on this case with the Minnesota churches, what kinds of reasons were the churches just giving about why they wanted to reopen? Did any of them or their stories about their parishioners needing to go to church particularly linger in your mind?
Verm: For one thing, I mean, these churches are sacramental churches. So, they can’t minister to the needs of their flocks without being able to administer the sacraments.
This is something that they were willing to do for a short time. It was a very painful decision for them to make, but they were willing to do it, to love their neighbors.
But when the governor is saying, “Oh, it’s OK for retail and retail is such an important part of our lives. We need to be able to give back to restaurants and bars. Those are very special things to us,” but ignoring churches altogether, that’s an issue. But also, it’s not good for people to be at home.
These churches want to be able to serve their community.
So, in some places in Minnesota, suicide hotlines saw a spike as high as 300%. Domestic violence calls were way up. So the church is saying, “We want to be able to respond to this and we need to be able to do that in person.”
Del Guidice: Diana, can you talk a little bit about some of the restrictive guidelines the governor had put in place before he released this modified order?
Verm: Before the modified order, churches were only allowed to meet with 10 people in a service at a time. So no matter how large the building, 11 people were not allowed in the same building.
The same restriction was placed on outdoor services. So no outdoor services more than 10. But restaurants were immediately allowed to open to serve people outdoors with up to 50 people, I think, outside.
At the height of the crisis, you can see some justification for requiring everyone to stay home. We don’t know what’s going on. This is the safest thing we can do. But when you start to reopen other things, the restriction on churches was just very frustrating.
Del Guidice: What is that reopening plan for these Minnesota churches? Can you kind of go into how they are being commentating and working with the governor to open safely, but also be able to offer church and the sacraments to their parishioners?
Verm: The reopening plan starts today. The executive order allowing to just reopen starts today, May 27, and it requires the churches meet at 25% capacity of the fire code.
It’s meant many fewer people in the churches and churches are required to submit their protocols, to have protocols in place.
Social distancing, people are not sitting within 6 feet of people outside of the same household; reduced singing, no singing together; and no common items that people are touching in the churches.
So these are protocols that the churches submitted to the governor well before he changed the order. And then they worked with the governor to come up with a solution once he was willing to talk to them.
Del Guidice: Looking at this from just a more all-encompassing perspective of what’s happened since the coronavirus pandemic started, do you think that First Amendment rights have been infringed on during this time?
Verm: I think the main infringement on First Amendment rights that we’ve seen that we’re seeing today is where locations, jurisdictions start to reopen, but they leave churches behind.
So there are a handful of states that are continuing to do that, and maybe some local governments as well, where they’re allowing retail to start opening and they’re leaving churches behind.
And that’s a very clear infringement on First Amendment rights when you’re treating churches with special disabilities and forcing them to stay closed when the local malls are opening.
In this case, it was tattoo parlors, dog grooming facilities, things like that, but not churches.
Del Guidice: On that note, Diana, we talked a lot about Minnesota, and I know California also made news for originally treating churches in a very different way than businesses were treated. Although, Gov. [Gavin] Newsom just released new permissions.
So what about other states besides California and Minnesota? Are you aware of any other states where religious services have been discriminated against?
Verm: Sure. There are a number of states where churches are still being treated differently: Maine, New Hampshire, Rhode Island, Nevada, Oregon, and Washington.
So, there are states that have not listened to the churches, but we hope that this model in Minnesota where the governor has listened to the churches and been willing to work with them, we hope that that would be something that those jurisdictions can look at and see a model for dialogue with churches.
This isn’t a situation where the churches are trying to back the system. They want to work with the government to keep people safe, to reopen in a cooperative manner. They want to keep people safe. … They’re trying to respect their constitutional rights and also serve their communities in a helpful way.
Del Guidice: President [Donald] Trump had said last week that churches should be allowed to reopen. And does what he said change the legal calculus at all?
Verm: … So, along with his announcement, the [Centers for Disease Control and Prevention] issued new guidelines for churches. …
If you’re going to restrict religious worship meeting in person, you have to have a really good reason to do it under the Constitution. It has to be a very compelling interest and it has to be the least restrictive way of doing that.
And when you have CDC guidelines from the federal government saying, “Here’s a way that you can do this safely,” it’s hard to say that churches can’t be meeting at all.
So I think that undermines a lot of the legal arguments that local governments have.
Del Guidice: Diana, how would you say that other faith leaders should respond if the governor of their state isn’t respecting their free exercise of religion?
Verm: You have seen some churches file lawsuits. That’s one way to address constitutional rights.
I think in all situations litigation is the last resort … All of these situations that I’m aware of, churches have tried to work with their local governments to get them to see the constitutional issues.
And all these officials swore to uphold the Constitution, so it is part of their job description to protect the constitutional rights of churches.
I think it’s good for churches to dialogue with the local officials. And then if there’s a case where it’s really religious discrimination, then a lawsuit is an option.
Del Guidice: As a lawyer and someone who is working on these cases and working on protecting free exercise of religion, what would you say to a pastor who feels conflicted about maybe he is in one of these states where their religious liberty isn’t being respected or they’re having these stringent rules and he’s also trying to balance wanting to be there for his parish? What would you say to pastors like this? I know there are a lot of them across the country.
Verm: Yeah. A lot of pastors have been working with their denominations and joining together. I think there’s safety in numbers. It’s helpful to be working with other churches in your area.
And I think that a lot of these churches, it’s a lot of work to meet all the protocols that are in place, that are there for safety, even that are potentially constitutionally required. And so a lot of churches are saying, “OK, we’re not going to reopen just yet. Even if we’re allowed to, we’re going to wait.”
So, I think that’s one option for local pastors, but also reach out to us at the Becket Fund. There’s other law firms out there that are doing great work on this. There’s lawsuits that have been filed by First Liberty and Alliance Defending Freedom. So, there are resources out there.
Del Guidice: Diana, thank you so much for joining us on The Daily Signal Podcast and breaking this down for us.
Verm: Thanks so much, Rachel. It’s good to talk with you.
