State House committee debated religion — and kept the discussion civil

Bill forbids bias against religious institutions under emergency orders

By: - January 27, 2022 1:28 pm

Alhough some churches flouted restrictions on services at the height of the COVID pandemic, St. Luke’s Episcopal Church in Marianna conducted services via the parish’s Facebook page. Credit: Michael Moline

The arrest of a Tampa Bay area pastor for holding services in defiance of local anti-COVID restrictions on large gatherings has inspired legislation that would prevent officials from treating religious institutions any differently from businesses including big-box stores.

Given the heat generated by religious conservatives over COVID restrictions, particularly for churches,  the debate on that measure (HB 215) before the House Committee on State Affairs this week might have degenerated into a shouting match.

It did not. What we got was a reasoned exploration of religious liberty and its limits.

One Republican noted the temperate quality of Wednesday’s debate, which included the respectful response to testimony from Devon Graham, representing American Atheists.

FL State Rep. Ardian Zika. Credit: FL House of Representatives.

“I couldn’t help but observe just a beautiful thing here in this room. It is unique to America that we had a member of the atheist community come testify in front of our committee and members of the theist community come testify in front of our committee without a fear of government persecution — without fear that, upon leaving this room, there’s no paramilitary forces waiting for them to check their IDs or, leaving the building, that military checkpoints” would detain them, said State Rep. Ardian Zika of Pasco County.

The vote ended up at 15-7 in favor of the legislation. The next stop is the Judiciary Committee before a possible House floor vote.

The Florida Senate approved similar legislation, SB 254, on Thursday afternoon by a vote of 31-3, with Democrats Lori Berman of Palm Beach County, Tina Polsky, representing parts of Broward and Palm Beach counties, and Bobby Powell of Palm Beach County, voting no.

Both bills are short, holding that no emergency order can “directly or indirectly prohibit a religious institution from conducting regular religious services or activities.”

“However, a general provision in an emergency order which applies uniformly to all entities in the affected jurisdiction may be applied to a religious institution if the provision is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest,” the text says.

What that means is that governments can’t treat churches, synagogues, mosques, temples, or any other religious institution differently from cinemas, bowling alleys, retailers, or any other entity.

As Senate sponsor Jason Brodeur, representing Seminole and part of Volusia counties, explained during floor debate: “If Publix is open, so is your place of worship.”

The bill defines a “religious institution” as a “church, ecclesiastical, or denominational organization, or established physical place for worship in this state at which nonprofit religious services and activities are regularly conducted and carried on and includes those bona fide religious groups that do not maintain specific places of worship,” according to a legislative staff analysis.

The term “also includes a separate group or corporation that forms an integral part of a religious institution and that is not primarily supported by funds solicited outside of its own membership or congregation,” the analysis says.

That would cover The River at Tampa Bay church, whose pastor, Rodney Howard-Browne, was arrested in March after he held services in defiance of a Hillsborough County emergency order forbidding gatherings of more than 10 people that was intended to curb spread of the coronavirus.

The charges were dropped after Gov. Ron DeSantis updated his own COVID emergency order to clarify that churches constituted “essential institutions” that could remain open.

Other religious institutions opted against challenging restrictions, preferring to broadcast services via streaming services rather than risk parishioners’ health.

Republican Nick DiCeglie presents legislation requiring equal treatment of religious institutions under declarations of emergency on Jan. 26, 2022. Source: Screenshot/Florida Channel

Under the local emergency order, “churches were not able to gather with more than 10 people. However, the big box stores were able to operate without any of those restrictions. So, this bill essentially says you have to treat those two things essentially the same,” said bill sponsor Nick DiCeglie, a Republican from Pinellas County .

Members of the committee have been receiving emails opposing the bill on the ground that, in clarifying that the government can’t lightly shut down religious gatherings, the bill would recognize its power to do so under if only under emergency conditions.

Democrat Yvonne Hays Hinson, representing parts of Alachua and Marion counties, read excerpts from one email, although she didn’t identify the writer.

“This opens a dangerous door, suggesting to future legislators that they can regulate churches for whatever their reason may be,” Hinson read.

“I reject the notion that the government can close the church if it has a good enough excuse,” she continued, still quoting. “People don’t need the permission of the government to have church.”

Substantial burden

DiCeglie replied that his bill tracks language in the Florida Religious Freedom Restoration Act, which holds:

“The government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: Is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”

He conceded he couldn’t define “a compelling government interest,” but imagined it would include “a very, let’s just say, you know, catastrophic event, whether it’s health or whatever the case may be. I don’t know — I don’t want to speculate.”

In other words, his bill would be no more or less restrictive on religious rights than standing state law.

“My goal here is to protect the First Amendment right of those folks who want to congregate,” DiCeglie said.

“It’s not so much bringing the church up to what box stores are allowed. It’s the other way around, if that makes sense.”

Rep. Carlos Guillermo Smith. Credit: Florida House

Carlos Guillermo Smith, a Democrat from Orange County, quizzed DiCeglie on the definition of the religious activities the bill would protect. He contrasted Sunday Mass with a “revival concert” drawing “literally thousands of people” but that might not be considered an “official service.”

A number of Democrats cited similar concerns over the definitions of religious entities and practice in voting against the bill.

DeCiglie argued: “If going to a concert and listening to music, and that’s a way of someone to, you known exercise their freedom of religion, you know, I would think that this bill would protect that right.”

Ultimately, he conceded, the courts might need to “chime in on that.”

“But I’m comfortable with that being broad, because, you know, those folks are, you know, whatever the activity they’re exercising their First Amendment right and freedom of religion.”

Committee chairman Ralph Massullo, a Republican representing Citrus and part of Henando counties, agreed.

“It seems to me we’re not going to ever be able to define — and we shouldn’t — what a religious activity is, not in this country. We shouldn’t define that in good times and we certainly shouldn’t define it in a state of emergency, where I believe people probably would need more of the religion that they would ascribe to,” Massullo said.

“I think the onus is more on the policymaker that’s actually establishing the state of emergency to be a little bit more careful in his or her definition of exactly what entities would be involved,” he said.

DiCeglie pointed to an April ruling in which the U.S. Supreme Court ruled that, to justify limits on religious observance, the government needs to show that “the religious exercise at issue is more dangerous than the other activities permitted by the government even when the same precautions are applied.”

That, he said, “is where the spirit of this bill lies.”

The bill drew support from the Florida Family Policy Council, the Florida Conference of Catholic Bishops, and the Florida Ethics and Religious Liberty Commission.

Graham, the atheist lobbyist, opposed the bill. She brought up an episode at an Arkansas church in March 2020 in which 35 of 98 people who attended a service came down with COVID and three died. An additional 26 cases were linked to the church, including one fatality.

“This is an example of what happens when any organization is allowed to operate unchecked during such a crisis,” Graham said.

“The best way to keep Floridians safe during a public health emergency is to provide guidelines to the public which we should all abide by,” she continued.

“You can say this is about religious freedom all you want, but it’s not true. This is about religious privilege, and you’re putting the lives of all Floridians at stake.”

Note: This story has been updated to reflect the Senate vote.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.