The First Freedom Act

During the days of the pandemic religious leaders were told to do many things to inhibit the spreading of the coronavirus, including closing the doors of their churches. Most obliged the orders of their state and local governments, while a few did not. One of those ministers who refused was John MacArthur, the senior pastor of Grace Community Church in Sun Valley, CA. MacArthur believed that his constitutional rights had been violated, so he sued and his case went all the way up to the U.S. Supreme Court. The high court ruled in his favor and ordered the State of California and the County of Los Angeles to pay him $400,000.

Constitutions still matter. As Bill Barr, the former U.S. Attorney General said, “The Constitution is not suspended in times of crisis.” He was right. So, when smallpox came to the City of Cambridge, Massachusetts back in 1902, the Board of Health mandated the vaccination of all of its citizens. When a citizen named Jacobson refused to get a free vaccination from the city, he sued and his case went all the way up to the U.S. Supreme Court. The high court ruled in that case that governments could only “reasonably restrict” the rights of its citizens. That case is known as Jacobson v. Massachusetts, 197 U.S. 11 (1905), and it set the precedent for the next 120 years.

That court precedent remained loosely in place leading up to the days of the coronavirus pandemic. According to SCOTUS, governments could only reasonably restrict churches, and governments could not single out churches, treating them differently than secular businesses or other institutions. In other words, if the churches had to close their doors, then so did all of the other businesses in town, and an order to shut the doors could not be made for an indefinite period of time.

The big problem with the SCOTUS ruling in Jacobson v. Massachusetts was that it was a court precedent, but not a law. That is why the Nebraska State Legislature needed to act this year. LB 277 clarifies and codifies what governments can and cannot do in regards to religious freedom during times of a crisis.

If the wheels of justice move slowly, then the wheels of the Legislature sometimes move even slower. In this case, it took the Nebraska State Legislature 119 years to finally pass a law to protect religious freedom during a time of crisis. That law is now known as the First Freedom Act.

LB 277 traveled a slow and winding road through the State Legislature. LB 277 was the original bill for the First Freedom Act, and it was introduced last year by Sen. Tom Brewer and was adopted by Sen. Brian Hardin as his personal priority bill. After the bill advanced out of the Government, Military and Veterans Affairs Committee, several dilatory amendments were filed on the bill preventing it from going forward. The bill was laid over until this year, and then was finally amended into LB 43, where it found a new home, and passed in the Legislature late last week.

The First Freedom Act now clarifies how the State of Nebraska cannot restrict the private exercise of religion. The state government and its political subdivisions will now be prohibited from restricting a person’s right to the exercise of religion unless it can be demonstrated that the burden is essential to a compelling government interest and that the action required of the private citizen constitutes the least restrictive means of furthering that government interest.

The First Freedom Act also clarifies how the State of Nebraska cannot restrict churches. The State government and its political subdivisions will be prohibited by law from restricting churches from holding worship services during a state of emergency to a greater extent than it restricts other secular businesses or institutions.

Finally, the bill stipulates that a person or a church that believes that the state has imposed an unnecessary burden upon them in violation of the First Freedom Act, may bring civil action against the State of Nebraska or any of its political subdivisions.

Protecting religious freedom is one of the most important functions of government. Religious freedom forms the very foundation of our republic. Our founding fathers believed this wholeheartedly. So, when Samuel Adams signed the Declaration of Independence on August 1, 1776, he delivered a speech at the State House in Philadelphia and said, “Be this the seat of unbounded religious freedom.”