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On a matter of faith, a different higher power helped guide Baker: the courts

Legal threat loomed over governor’s decision to allow houses of worship to reopen

A church in Dorchester was cleaned this week.
A church in Dorchester was cleaned this week.David L. Ryan/Globe Staff

Governor Charlie Baker has spoken at both a synagogue and a church during the COVID-19 pandemic, and afterward described seeing the spiritual toll of his decision to severely curtail public gatherings cast before him in empty pews.

But his decision this week to allow houses of worship to immediately welcome congregants back was rooted not in faith. Rather, aides say, it was a calculation of two threats: the coronavirus and a lawsuit, and the latter, according to constitutional experts, carried the potential of ultimately forcing their doors open anyway.

The challenge underscores the varied factors helping drive Baker’s decisions in balancing an enduring public health crisis, a crumbling economy, and ever-increasing pressure to pull the right levers on both.

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The inclusion of places of worship amid the first wave of Baker’s reopening plan led public health and elected officials to immediately send up red flags, fearing that even at 40 percent capacity — as Baker directed amid a slew of other regulations — indoor congregations of elderly parishioners could serve as an incubator for a new outbreak of the virus.

It’s prompted calls for caution even from religious organizations, and Baker, too, who urged faith leaders on Monday to embrace the effort to “protect vulnerable populations” should they ease back into in-person services.

Hanging over the decision was a separate higher power: the courts. A Worcester pastor last week filed a federal lawsuit against Baker, arguing his ban on gatherings of more than 10 people violated freedom of religion protected by the First Amendment.

Adams Square Baptist Church Pastor Kristopher D. Casey spoke to the media last month.
Adams Square Baptist Church Pastor Kristopher D. Casey spoke to the media last month.Barry Chin/Globe Staff/The Boston Globe

A judge has yet to rule on the complaint filed by Pastor Kristopher Casey and the Adams Square Baptist Church. But had Baker excluded houses of worship as he eased restrictions elsewhere, he risked fueling the argument that religious services were being unconstitutionally curtailed, experts say.

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“Once you start opening up some businesses or some gathering places, churches could say, ‘We deserve to open up like anybody else,’ ” said Kent Greenfield, a constitutional scholar and law professor at Boston College. “If you didn’t [include houses of worship], then those First Amendment claims start to get more and more persuasive. And they become more persuasive as the phases go.”

Baker did not address the potential legal consequences Monday, when he announced his plan. But state officials weighed the possible fallout in crafting the regulations, a person in the administration said. Should Baker lose in court, it would be a judge, not the governor, shaping how houses of worship can reopen.

“It was the best way to balance the legal challenge while retaining the ability to put out some level of public health guidance,” said the person, who spoke anonymously to discuss internal deliberations.

A hearing is scheduled for Friday in the lawsuit, though it’s unclear how it will proceed. Attorneys for Casey did not respond to a request for comment Tuesday.

The issue has reared its head elsewhere. The US Department of Justice on Tuesday sent a letter to California Governor Gavin Newsom criticizing his decision to allow restaurants, factories, and malls to open in stage 2 of his plan, but to bar places of worship from holding services until stage 3.

“We believe that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan," a DOJ spokeswoman wrote on Twitter.

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Baker has previously watched the courts chip away at his decision-making power since declaring a state of emergency in March. A federal judge this month allowed gun shops across Massachusetts to reopen, ruling that Baker’s decision to close them along with thousands of other “nonessential” businesses infringed on people’s Second Amendment rights.

The guidelines US District Judge Douglas P. Woodlock installed for firearm retailers were crafted largely from a proposed order Baker’s attorneys submitted to the court. But Woodlock, through his ruling, was able to tweak important details, including moving up by days the timeline for when gun shops could begin making appointment-only sales.

Baker said Monday that the guidelines established under the court order would govern gun shops, even as he eased restrictions on other retailers.

Had Baker excluded houses of worship from his initial reopening plan, and fought the Worcester pastor’s lawsuit, he also risked running into other challenges, said Jay Wexler, a Boston University law professor who focuses on church-state law.

“The arguments are at least plausible enough that the state would have had to defend it, they would have to spend resources, money," Wexler said, "and they may not look good politically.”

Governor Charlie Baker sat in otherwise empty pews at a Sunday prayer service at Morning Star Baptist Church in Mattapan on March 22, 2020.
Governor Charlie Baker sat in otherwise empty pews at a Sunday prayer service at Morning Star Baptist Church in Mattapan on March 22, 2020.Chris Van Buskirk/State House News Service

Baker, who is Protestant, has repeatedly cited the impact closing religious services has had on him personally. In the span of three days in late March, he sat in an empty Temple Emanuel in Newton, speaking through a live stream at what would have otherwise been a packed sanctuary, and that Sunday, attended service at Morning Star Baptist Church Service in Mattapan.

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Afterward, he described sensing “a loss of purpose” amid the strict limits he put on gatherings.

“Taking away the opportunity for people to worship together was one of the worst of all of the decisions that we had to make in all of this,” Baker said Monday.

Now, as they are allowed to open their doors, houses of worship face a variety of restrictions: the 40 percent capacity limit, a requirement to wear protective masks, and guidelines to block off pews. Faith leaders are even asked to consider using prepackaged communion or sacraments.

Those detailed guidelines have done little to quell criticism. Representative Ayanna Pressley on Tuesday called on Baker to reconsider his reopening timeline, citing in part discussions with “faith leaders concerned it is not safe to gather.”

Boston Mayor Martin J. Walsh said he feared houses of worship, as well as barbershops and hair salons, could help feed a potential surge in cases, and made a public plea to his own mother and the city’s elderly residents to not flock back to religious services.

“I know that for many of you, your place of worship is the heart of your community, and you’re missing it,” Walsh said. “I want you to hold off on going back to your services at this point.”

The Centers for Disease Control and Prevention released its own study this week finding that among 92 attendees at a rural Arkansas church in March, 35 tested positive for COVID-19, including three people who died.

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An additional 26 cases spread into the community, causing another death, according to the CDC, which held it up as an example of the widespread transmission that can happen in a church gathering and "within the broader community.”

Even with the green light, faith leaders are preaching caution. The Archdiocese of Boston said Catholic churches can begin reopening as early as Saturday, but only if parish leaders feel prepared to do so safely.

Leaders of mosques in Roxbury and Cambridge decided to keep this weekend’s Eid al-Fitr celebrations virtual. And Rabbi David Hellman of Young Israel of Brookline said the Modern Orthodox synagogue isn’t likely to open until the coming weeks, and when it does, it will likely be with restrictions not just on the number of people but the ages of who can attend.

Religious leaders nonetheless impressed upon Baker’s reopening advisory board the importance of including houses of worship in any plan it formulated. Hundreds of pastors had already urged Baker earlier this month to allow them to reopen.

“We didn’t go in saying we wanted X number of seats, or this date,” said Jeremy Burton, executive director of the Jewish Community Relations Council of Greater Boston, who with representatives from the Greater Boston Interfaith Organization and others was part of the virtual meeting.

“There was a clear understanding both on the part of us presenting and on the part of the lieutenant governor [Karyn Polito] and other members of the group that faith institutions and the role we play in Massachusetts is vital,” Burton said. "And that needed to be addressed.”

Gal Tziperman Lotan of the Globe staff contributed to this report.


Matt Stout can be reached at matt.stout@globe.com. Follow him on Twitter @mattpstout.