Political Theology and Church Restrictions

Paul Marshal is Wilson Professor of Religious Freedom and Research Professor in Political Science at Baylor University, Senior Fellow at the Hudson Institute, and the Leimena Institute, Jakarta

Perhaps the most contentious religious freedom issue raised in the pandemic has been governmental limits on religious gatherings, and not only in the U.S.

We should not exaggerate the resistance by churches and others. The vast majority of churches, mosques, synagogues, and temples have followed government orders. Many of those that have resisted restrictions are often fringe bodies, commonly with ties to the “prosperity gospel.”

Also, churches have been scapegoated. The New York Times ran an op-ed titled “The Road to Coronavirus Hell Was Paved by Evangelicals,” though later changed to the milder but still tendentious “The Religious Right’s Hostility to Science Is Crippling Our Coronavirus Response.” Later it published “Churches Emerge as Major Source of Coronavirus Cases.” However, the article traced only 650 cases to churches, which was, on July 8, 2020, the day the piece was published, only 0.022% of the 2,923,432 reported cases in the U.S., hardly a “major” source.

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The Impact of Coronavirus on Public Funding of Religious Organizations

Adelaide Madera is Associate Professor of Canon Law and Law and Religion at the Department of Law of the University of Messina, Italy

Since Everson v. Board of Education, access to public funding for religious organizations has been a controversial issue and fiercely litigated. During the pandemic crisis lockdown, the enactment of the CARE Act that established the Paycheck Protection Program, raised new challenges for religious charities.

The PPP appeared attractive to many organizations and businesses, both religious and secular, which needed to maintain their employees on their payroll. However, many concerns arose as to whether religious nonprofits were eligible for government funding, whether accepting PPP loans implied that religious organizations were federal contractors, and to what extent access to public funding could affect their religious identity. On April 3, the SBA issued guidelines to clarify some key points. First, receiving the loan has no implications on church autonomy, religious identity, internal governance, or on the exercise of rights guaranteed by federal statutes (RFRA, section 702 of Title VII, First Amendment). Accepting a PPP loan “constitutes Federal financial assistance” and implies “certain nondiscrimination obligations,” even though they “are not permanent.” The only limitation applies to all beneficiaries: 75% of the loan must be used to cover payroll costs. The SBA’s frequently asked questions underlined that the SBA’s nondiscrimination rules, as Title VII provisions, include an exemption allowing religious organizations to employ staff sharing their religious beliefs “to perform work connected with [the organization’s] religious activities.” The crucial question is whether this exemption allows religious organizations to select employees who also share their standards of behavior. Certain academics incline toward a narrow reading of this provision,[1] and a textualist reading of the expression “because of sex” of Title VII resulted in the Supreme Court’s inclusion of gender identity and sexual orientation under the protection offered by Title VII.

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Comparative Church Law and Juridical Ecumenism

Professor Mark Hill QC is an adjunct professor at Cardiff University, Pretoria University, Notre Dame University Law School, Sydney and King’s College, London; and is a fellow at the Center for the Study of Law and Religion at Emory University, Atlanta. He practices at the Bar in London and sits as a judge on the Midland Circuit.

The vast majority of scholars of law and religion tend to focus on the interface between church and state. This is unsurprising. From the medieval philosophers to the present day, the respective spheres of the spiritual and the secular authorities have been the subject of contest and engagement. These are matters upon which I have written and lectured over the past thirty years. But I have long been intrigued by the internal laws of religious organizations, which led me to write my definitive textbook Ecclesiastical Law on the law of the Church of England, now in its fourth edition. The Church of England is unusual, being established by law as a state church. Its laws (Measures) have the same status as Acts of Parliament [1].

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