On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Zachary B. Pohlman, Editor-in-Chief of the Notre Dame Law Review, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’sInternational Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.

“Churches” in a Time of Coronavirus

By Zachary B. Pohlman

Regular in-person gatherings at churches, synagogues, mosques, and other places of worship came to a grinding halt in mid-March.  Six months later, religious attendees are returning to the pews—but in significantly fewer numbers.  Whether churchgoers ultimately return to their pre-pandemic levels of in-person worship remains to be seen.  Regardless of whether they do, the coronavirus-induced, steep decline in church attendance—even if only for the short term—could have lasting effects for how we conceive of “churches” from both external and internal perspectives.  That is, how we understand churches as both a legal and religious matter could be shaped by the unique challenges presented by the pandemic.  (For purposes of this blog post, “churches” refers to houses of worship of all types, including churches, synagogues, mosques, and temples.)

As a legal matter, it has never been easy to pin down what exactly should count as a “religion” or “church.”  Coronavirus only complicates things further.  Despite the prominence of the First Amendment’s religion clauses in law and society, definitional disputes over these terms have not been litigated first and foremost as a matter of constitutional law.  As former IRS Commissioner Jerome Kurtz noted, “Our tax law places the I.R.S. near the forefront in making delicate decisions involving the definitions of ‘religion’ and ‘church’ . . . .”  That’s because churches enjoy a number of tax benefits beyond those enjoyed by all other 501(c)(3)’s.  The IRS is thus left with the task of deciding what counts as a church for tax-benefit purposes—decisions it makes using a flexible fourteen-factor test.