In May 2020, chairs were moved out of Rincon Presbyterian Church to meet COVID-19 guidelines. A new bill would give churches special privileges to operate during pandemics.

 Kelly Presnell / Arizona Daily Star 2020

PHOENIX — It’s promoted as a measure to ensure that no future governor shuts down religious services during an emergency.

But some legislators worry that the actual wording of the legislation would give churches and other religious organizations not only special privileges to operate during pandemics and other situations but potentially immunize them from lawsuits over child abuse.

HB 2648 would spell out in statute that religious services “are declared an essential service and are deemed necessary and vital to the health and welfare of the public.” The bill already has cleared the House and now awaits a Senate floor vote.

Rep. Ben Toma, R-Peoria, who is sponsoring the measure, said it’s simply designed to put churches on even footing with other businesses.

“The spirit of the bill is essentially to say that if Costco and Walmart and any other private business is allowed to be open during a pandemic, then so should religious organizations,” he said.

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What it also would allow a religious organization to sue the state to not only get a declaration that it is entitled to continue to operate but also for monetary damages. Toma said that’s appropriate.

“If they are discriminated against, there should be financial consequences on any governments that infringe on their rights,” he said.

But the verbiage in the bill is raising questions about whether this is about more than giving churches the equal opportunity to stay open.

It starts with language designed to provide protection against “discriminatory action” by the government. Specifically the concern is over what that includes.

For example, it would bar state government from causing “any tax, penalty or payment to be assessed against a religions organization.” And it would prohibit imposition of any “monetary fine, fee, civil or criminal penalty, damages award or injunction against a religious organization.

That language alarmed Rep. Melody Hernandez, D-Tempe.

“There is currently a long-term, worldwide scandal about sexual abuse of children in religious organizations,” she said.

“And this has resulted in many fines, fees, penalties and criminal sanctions against religious organizations,” Hernandez continued. “And I am incredibly concerned that this bill’s prohibition would deny children victims any recompense for their abuse.”

Sen. Martin Quezada, D-Glendale, also said this appears to be about far more than letting congregations meet during a pandemic.

“The expansive breadth of this bill is astonishing,” he said. It’s “completely unnecessary,” and not just because Gov. Doug Ducey has specifically exempted religious services from any restrictions in his emergency declaration.

Quezada cited a ruling last month by the U.S. Supreme Court which overturned a California ban on indoor church services as a method to fight the pandemic.

The court, however, did uphold attendance limits based on the size of the facility. And the justices said that, given the way the COVID-19 virus spreads, state could prohibit singing and chanting during services.

Toma’s bill would allow the state to require religious organizations to comply with “neutral health, safety or occupancy requirements” as long as they are apply to other organizations also also provide essential services. But it does say that that the state cannot impose “a substantial burden on a religious service” absent showing it is “essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.”

Sen. J.D. Mesnard R-Chandler, acknowledged that the measure does deal more than just what happens during a declared emergency. But he said he does not read the bill as broadly as some of the foes.

“There is no immunity in this bill except for one thing: immunity from discrimination,” he said. Mesnard said it does not immunize religious organizations to go out and break any law.

Sen. Jamescita Peshlakai, D-Window Rock, openly questioned the need to cater to the church.

Peshlakai said she understands the stated goal is to protect religion in government. But she said that hardly appears necessary.

“I see nothing but the protection of the church in this state and in this country,” she said. By contrast, Peshlakai said Native Americans were not granted freedom of religion until President Jimmy Carter signed the American Indian Religious Freedom Act in 1978, overruling laws that had rendered some religions and sacred ceremonies illegal.

Yet all along, other non-Native American religions were given the freedom “to hurt people,” relating how her grandfather, in the name of converting Native Americans to Christianity, was forced to go to an Indian school.

“So I am very wary of giving that much immunity and that lack of responsibility to these religious essential services,” Peshlakai said.

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