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Proposed constitutional amendment would exempt worship venues from emergency closings

Sen. Cory Tomczyk, right, explains his support for an amendment to the state constitution that would exempt houses of worship from being closed under a state of emergency. Tomczyk authored the Senate resolution for the amendment. At left is Rep. Ty Bodden, author of the Assembly resolution. (Screenshot | WisEye)

by Erik Gunn, Wisconsin Examiner
July 19, 2023

A proposed amendment to the state constitution that would exempt houses of worship from emergency orders closing public buildings got its first hearing in the Legislature Tuesday, with backers arguing that the intent of such orders to save lives was irrelevant.

“This amendment will protect our constitutional rights and in the event of future emergencies, no matter what the emergency,” said Rep. Ty Bodden (R-Hilbert), lead author of AJR-60 in the Assembly, one of two companion joint resolutions drafted to advance the proposal. The Senate version is SJR-54

At the hearing in the Senate Senate Committee on Licensing, Constitution and Federalis, Bodden and other lawmakers supporting the amendment depicted closings of indoor spaces where religious gatherings were held early in the COVID-19 pandemic as a governmental overreach.

“Since 2021, nine states including Arizona, Florida, Kentucky, Montana, New Hampshire, North Dakota, Oklahoma, South Carolina and Tennessee have passed similar legislation receiving bipartisan support,” Bodden said. “Places of worship for Christians, Jews, Muslims, Buddhists, Hindus or any other practicing religions should not be closed by any level of government at any time.”

After the pandemic was first declared in early 2020, public health orders across the country and in Wisconsin temporarily closed public buildings to reduce the spread of what was then called the novel coronavirus. At the time, the death toll from the newly identified illness COVID-19 was rising, its means of spread was only dimly understood and a vaccine was months away from being developed. 

“This wasn’t just an arbitrary decision,” said Sen. Bob Wirch (D-Somers). “You have to remember, well over a million people died of COVID. This was a very serious situation.”

Wisconsin’s Safer at Home order, which went into effect March 24, 2020, lasted until May 13, when the state Supreme Court in a 4-3 ruling lifted it immediately

No order closed churches entirely

Although many churches pivoted to exclusively online worship at the start of the pandemic, the state order did not include churches or other houses or worship among the places required to shut down completely during the seven weeks it was in effect.

At Trinity Lutheran Church on Madison’s east side, services in 2020, the first year of the COVID-19 pandemic, when this photo was taken, were held on Facebook Live to help keep people safe from the coronavirus. (Wisconsin Examiner file photo)

Religious gathering places were listed among “essential” locations that the state’s order allowed to remain open, although they were required to limit indoor gatherings to 10 people at a time. Drive-in services outdoors were among the alternatives that the state suggested to allow congregations to gather in larger numbers. 

When the order was lifted, some counties instituted orders of their own while many others did not. Winnebago and Outagamie counties both included worship gatherings among the activities that could continue while limited indoors to 10 people. 

A Dane County order initially classified indoor worship events as “mass gatherings” limited to 50 people. Following a threatened lawsuit by a coalition of Catholic-affiliated law firms, the county reclassified worship and included churches and other religious bodies in a larger group of general businesses, which were required to limit gatherings to 25% of capacity. For any congregation of more than 200 people, that effectively increased the limit on attendance. 

On Tuesday, however, lawmakers who testified in favor of the proposed amendment described the pandemic’s impact on churches in more dramatic terms.

The First Amendment to the U.S. Constitution bars laws “respecting an establishment of religion, or prohibiting the free exercise thereof,” said Bodden, calling that “one of our most basic rights as Americans, the right to assemble in a place of worship without government interference.”

He listed other guarantees in the amendment to freedom of speech and the press and for people to assemble peaceably and seek government redress of their grievances. “However, during the COVID-19 pandemic, one of these most fundamental rights was stripped away from many individuals; churches were forced to shut down in the name of public safety,” Bodden added.

“During the pandemic, we saw places of worship forcibly closed at a time when many needed their faith communities and spiritual advisors the most,” said Sen. Cory Tomczyk (R-Mosinee), lead author of the Senate resolution.

“Unbelievably, this included parishes like Pilgrim Lutheran Church in West Bend, where a congregation was interrupted by law enforcement in the middle of a pastor’s Palm Sunday sermon in April of 2020.”

The incident that Tomczyk referred to occurred when a neighbor of the church called police to report the service taking place, 12 days after the Safer at Home order took effect, according to a Wisconsin Public Radio account that aired a week later.  

At the time, the pastor of the church told WPR that the police interruption of the Palm Sunday service was the result of a “misunderstanding” and that the West Bend police subsequently apologized. 

“I think it’s a situation where we weren’t doing anything wrong, the police didn’t do anything wrong and the neighbor didn’t do anything wrong, and yet it made a story,” the pastor told the radio network. 

Tomczyk said the proposed amendment “makes crystal clear that these places of worship shall not be forced to close … by the government during a state of emergency, regardless of that emergency, protecting every individual’s right of conscience and worship from those who might deem it unimportant.”

Matt Sande, the lobbyist for Pro-Life Wisconsin, which opposes abortion in all circumstances, was among other witnesses who testified in favor of the amendment. 

“There has to be a balance, not only on matters of prudential decisions, but on core constitutional rights,” Sande said. “Short of martial law, these rights must be respected and they can’t be abridged.”

Sande said Pro-Life Wisconsin is “an evangelical organization, and we’re spreading the Gospel of Life. That’s our mission. And we do that a lot in churches and church gatherings all across the state. And we were prevented from doing that during the pandemic.”

Church group raises concerns

Peter Bakken of the Wisconsin Council of Churches. (Screenshot | WisEye)

The only other witness representing religious bodies was Peter Bakken, speaking for the Wisconsin Council of Churches. The council is a network of 21 Christian faith traditions with more than 2,000 congregations that together count more than 1 million Wisconsin residents as members.

His testimony was for information only, Bakken said, neither expressly favoring nor opposing the proposed amendment. He raised two concerns, however, and warned of unintended consequences if it passes.

“We’re concerned that public statements and reporting about the effect of public health emergency orders on houses of worship very often misrepresent what is actually at stake for religious communities,” Bakken said.

Early in the pandemic, congregations across the state “continued to meet their members’ and their community’s needs, in spite of limits on in-person indoor gatherings,” he said. Alluding to many churches’ use of online platforms to conduct meetings and worship, Bakken added, “they found that the new measures required by the public health emergency enabled them to reach people that they hadn’t been able to connect with before.”

Existing state and federal constitutional guarantees, Bakken suggested, should offer a sufficient basis to challenge an order that “actually does infringe on someone’s religious freedom.”

The proposed amendment could lead to disputes over how “house of worship,” “closures” and “forbidding gatherings” are defined, he said, while preventing “the sort of careful, informed public deliberation that is essential when the life and health of Wisconsin residents, especially those who are most vulnerable, hangs in the balance.”

To be added to the Wisconsin Constitution, the proposed amendment must pass both houses of the Legislature during the current two-year session, then pass again with identical wording in the 2025-27 session. It must then be approved by the voters in a statewide referendum to be adopted. As a resolution, it does not require the governor’s signature.

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Wisconsin Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: info@wisconsinexaminer.com. Follow Wisconsin Examiner on Facebook and Twitter.

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