Religious freedom attorneys pick their battles amid pandemic

FILE - In this April 12, 2020 file photo, Pastor W.R. Starr II preaches during a drive-in Easter Sunday service while churchgoers listen from their cars in the parking lot at Faith City Christian Center in Kansas City, Kan. As states grapple with when and how to reopen establishments amid the coronavirus pandemic, churches and nonprofits across the country are defending their religious freedom in court, finding success in the less polarizing practice of a drive-in worship designed to gather the faithful in person, at a distance. (AP Photo/Charlie Riedel, File)
FILE - In this April 12, 2020 file photo, Pastor W.R. Starr II preaches during a drive-in Easter Sunday service while churchgoers listen from their cars in the parking lot at Faith City Christian Center in Kansas City, Kan. As states grapple with when and how to reopen establishments amid the coronavirus pandemic, churches and nonprofits across the country are defending their religious freedom in court, finding success in the less polarizing practice of a drive-in worship designed to gather the faithful in person, at a distance. (AP Photo/Charlie Riedel, File) (Copyright 2020 The Associated Press. All rights reserved.)

NEW YORK – As states grapple with when and how to reopen establishments amid the pandemic, religious freedom remains a legal flashpoint – particularly for the conservative nonprofits that have taken a leading role in representing churches which have challenged stay-home orders.

At least a dozen state or federal suits filed since the virus outbreak started have focused partly or fully on freedom to worship in person, according to an Associated Press analysis.

Those lawsuits break primarily into two strategies. Both camps -- which include legal nonprofits with significant experience in court battles over religious liberty -- see an opportunity to advance their cause by taking on some state and local faith gathering limits ordered during the pandemic.

But while some suits are framed as full-throated defenses of the right of religious assembly, others have employed narrower strategies. While a few pastors have grabbed headlines by defying public health orders with large services, some of the nonprofits have found success defending a less polarizing practice: drive-in worship designed to gather the faithful in person, at a distance.

First Liberty Institute President Kelly Shackelford, whose conservative nonprofit has represented churches challenging drive-in service limits in Kentucky and Mississippi, said his group has discouraged other attorneys from taking virus-related cases that may set unwelcome precedents. The institute has focused on actions that specifically target religious entities, not actions that are being imposed more universally, he said.

The 23-year-old group’s website on coronavirus notes that short-term gathering limits which cover religious as well as secular meetings “are okay,” so long as they don’t become permanent. It also represents a trio of churches that won approval of drive-in services in their home New York county without filing a suit.

Shackelford said success hinges on finding the balance between public health and religious freedom: “When is the government going too far? What’s appropriate, how does a religious entity navigate this?"

Another nonprofit that’s taken on multiple religious freedom cases during the pandemic, the Alliance Defending Freedom, also has targeted restrictions on drive-in worship. The alliance, a legal advocate representing Christian conservative issues, is a powerful force: It reported spending more than $54 million on its most recent tax return.