Church Closures During the COVID-19 Pandemic (Probably) Do Not Violate the First Amendment

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In attempts to safely shepherd their citizens through the COVID-19 pandemic, most state and local governments have issued “safer-at-home” or “shelter-in-place” edicts that broadly close businesses and prohibit gatherings of certain numbers of people, except for people performing certain essential functions (i.e. health care delivery workers, food supply chain and retail workers, and, thankfully, lawyers).  Here in Nashville, for example, both our city and the State of Tennessee have issued such orders.

Numerous churches, however, have been bucking these orders, including and especially leading up to Easter, the annual celebration of the resurrection of Christ on the third day after his crucifixion and death, to the extent that these orders–like Louisville, Kentucky Mayor Greg Fisher’s order–purport to go so far as to prohibit church members from gathering in empty shopping mall parking lots, even if they remain in their cars.  The tension between these orders and churches’ decisions to buck them raises an interesting constitutional question.

For example, University of Massachusetts law professor R.J. Peltz-Steele tweeted this morning that he had seen police ticketing people who had gathered for Easter worship over the weekend.  Do these tickets violate the First Amendment’s Free Exercise Clause?

No Title

I saw police ticketing cars at Sunday live #church gatherings disobeying #lockdown. #Lawprofs, has anyone written a #FirstAmendment free exercise analysis? I’d be interested to read it. I’m a bit outdated on my FA-FE jurisprudence. #legalresearch #COVID19

Regular readers will recall that the stock answer to all legal questions is “it depends.”

The First Amendment to the U.S. Constitution, as incorporated through the Due Process Clause of the Fourteenth Amendment, provides that state governments (and their political subdivisions, like counties and cities) cannot make laws that “prohibit the free exercise” of religion.  When analyzing a “safer-at-home” or “shelter-in-place” order, the issues are whether the order itself or the enforcement thereof is sufficiently neutral on the issue of religion and broad enough in application so that it does not rise to the level of an infringement on Christians’ free-exercise rights.  In these cases, determining whether a particular order violates the Constitution will depend on what the order says, how it was adopted or enacted, and how it is enforced.

For example, over Easter weekend, a United States District Court (federal trial court) judge issued a temporary restraining order against enforcement of the Louisville, Kentucky order.  The court’s memorandum opinion held that there was enough evidence that the mayor was treating people differently because of their faith to stop the city police from enforcing the ban before the issue could be tried on its constitutional merits.  In one thoroughly discussed passage, the court excoriated how the mayor differentiated between “essential” operations:

. . . Louisville’s actions are “underinclusive” and “overbroad.”  They’re underinclusive because they don’t prohibit a host of equally dangerous (or equally harmless) activities that Louisville has permitted on the basis that they are “essential.”  Those “essential” activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping.  The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it.  But if beer is “essential,” so is Easter.

You can read the full version of the court’s opinion in On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264-JRW (W.D. Ky. Apr. 11, 2020), by clicking here (PDF).  [Edit:  Also, read Josh Blackman’s analysis at the Volokh Conspiracy, in which he argues that Judge Walker’s temporary restraining order in this case rests on somewhat shaky grounds to the extent that it is not altogether clear whether Mayor Fischer’s administration tried to enforce Louisville’s order, and that the temporary restraining order was issued ex parte, i.e. without giving the mayor’s office an opportunity to respond.  Those aspects are relevant for whether the temporary restraining order was a proper form of extraordinary relief in light of the constitutional questions and immediacy of Easter Sunday, but they are separate legal issues from the First Amendment questions.]

Generally speaking, however, broad-based “safer-at-home” or “shelter-in-place” orders to prevent the spread of COVID-19, without more, probably do not violate the First Amendment’s Free Exercise Clause, even if they prohibit people from gathering to worship.  When my students asked me how these orders and their effects on churches square with the Bill of Rights–I’m teaching constitutional law to undergraduates at a Christian university this spring–the case that came to mind immediately was Employment Div., Dep’t of Human Res. of Or. v. Smith, 484 U.S. 872 (1990).

In Smith, two employees of, ironically, a drug rehabilitation facility were fired from their jobs for ingesting peyote, an illegal hallucinogen, in a ceremony in the Native American Church.  When they subsequently applied for unemployment benefits, the state declared them ineligible because of the circumstances of their separation from their job, i.e. because they were fired for using illegal drugs.  They appealed the decision of the state unemployment agency to the Oregon Court of Appeals, which reversed the agency, holding that denial of unemployment benefits violated the men’s First Amendment rights under the Free Exercise Clause.  When the state appealed to the Oregon Supreme Court, it lost again as the state supreme court affirmed the intermediate appellate court.  So the state appealed to the U.S. Supreme Court to definitively resolve a dispute over federal constitutional law.

Writing for a 6-3 majority, in what some have called a “dangerous” opinion, noted Catholicism enthusiast and late Associate Justice Antonin Scalia held that neutral laws of general applicability that incidentally burden religious observance do not violate the First Amendment’s Free Exercise Clause.  Oregon law made peyote use illegal for everyone without targeting members of the Native American Church specifically, and neither the criminal law prohibiting peyote use nor the state unemployment agency’s denial of unemployment benefits burdened the two employees’ rights to exercise their religion beyond peyote use, i.e. the burden on the exercise of their religion was incidental at best.  Therefore, under Justice Scalia’s reasoning, there was no First Amendment violation, and the two men could not recover unemployment benefits.

Three years after Smith, Congress enacted, and President Bill Clinton signed into law, the Religious Freedom Restoration Act (“RFRA”), a federal statute that was designed to enhance protections for religious exercise across the country, precisely in response to concerns that Smith generated.  (Now, stop and ask yourself whether you can imagine Chuck Schumer and Ted Kennedy sponsoring companion bills in the House and Senate today on the same subject matter for the same ends, or a president with the last name “Clinton” signing it into law.)  RFRA made it only four years before meeting its demise in 1997 in City of Boerne v. Flores, 521 U.S. 507 (1997), in which another 6-3 majority of the Supreme Court of the United States held that RFRA exceeded the scope of Congress’s enforcement powers under Section 5 of the Fourteenth Amendment.  Unlike widespread evidence of racial discrimination across the country in the historical record, there was not enough evidence, in the Court’s view, that state laws were actually burdening religious exercise in a way that would otherwise enable Congress to invade state prerogatives and dictate how much protection from religious discrimination would be required.

Undeterred, religious liberty advocates have pressed forward since Flores, adopting “mini-RFRA” legislation in various states throughout the country to heighten protections for religious expression.  Fewer than half of the 50 states have enacted “mini-RFRA” laws.  It is worth noting, when reading the memorandum opinion in On Fire Christian Center, Inc. v. Fischer above, that Kentucky has such a “mini-RFRA” law, and the existence of that law played a significant role in the court reaching its conclusion that a temporary restraining order against the city’s order was appropriate.  Under our federal constitutional structure, these mini-RFRA laws are, at least theoretically and superficially, non-controversial.  The United States Constitution provides a minimum guarantee of liberty protections, and states are free to provide higher levels of legal protection for their citizens if they so choose.  Again, if you’ll pardon the pun, the Devil is always in the details.

So what might Smith tell us about the constitutionality of COVID-19-related church closures?

As an initial matter, nobody contests that, under the structure of our Constitution, states have always had plenary police power to regulate the health, safety, welfare, and morals of their citizens–the simple requirement being, at least after the 1860s, that people receive due process of law before a state-sanctioned deprivation of life, liberty, or property.  On the religious liberty question, my gut reaction is that, generally speaking, “safer-at-home” or “shelter-in-place” orders that prohibit gatherings of people larger than some discrete number, or which require that people maintain a proper social distance of some discrete number of feet, are not per se constitutionally problematic.  Rather, these orders, like the criminal prohibition on peyote use that applied to all Oregonians, apply to everyone.  Except for Louisville Mayor Greg Fischer’s various public threats to churches in his town, presumably these orders are adopted through proper channels, enforced evenly, and designed to regulate the public health.

Although I teach at a Christian university, and although I was baptized in the Episcopal Church at a very young age, I do not consider myself to be a particularly religious person, and I am certainly no expert on all the dictates of various sects of the Christian faith (or any other faith for that matter).  So I cannot say with certainty how much of a burden a prohibition on worshipping in groups poses to a particular church or its members.  But I can say with a very high degree of confidence that nothing about my present conditions in Nashville, Tennessee have prevented me from observing either the faith of my childhood or the doctrines of my present faith.  That is, even if I was still a practicing Episcopalian, any burden that Nashville or Tennessee’s “shelter-in-place” orders put on the exercise of my religion would be incidental at best.  That doesn’t make for a constitutional crisis when “safer-at-home” or “shelter-in-place” orders apply to just about everyone–everyone except the people that society needs to survive (i.e. people who treat medical conditions, people who ensure that we can buy sustenance, and people who advocate for legal rights).

Again, the Devil is, as always, in the details.  Because the court in On Fire Christian Center, Inc. v. Fischer concluded that the Louisville mayor had overtly treated churches differently than liquor stores, another case is worth brief discussion on this point because the differentiation can be far more subtle.  In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), decided three years after Smith, practitioners of the Santeria religion, an Afro-Caribbean faith that involves ritual small-animal sacrifice, were prohibited by a series of city ordinances in a Florida town from sacrificing animals within city limits.  Long story short, the ordinances used mostly neutral language (although the Justice Kennedy seemed at least somewhat concerned with the ordinances’ uses of “sacrifice” and “ritual,” both of which have overtly religious connotations), but they were enforced only against members of the Church of Lukumi Babalu Aye, who practiced Santeria.  Therefore, the Court distinguished the ordinances from the criminal law prohibiting peyote use in Oregon in Smith.

So although Smith might tell us that our default posture in analyzing the constitutionality of “safer-at-home” or “shelter-in-place” orders should be to assume that they would pass muster in a court of law, City of Hialeah gives us factors to watch for, like buzzwords in the order’s text and method(s) and manner(s) of enforcement.  It would be interesting to me, from a scholarly perspective at a minimum, to see a test case emerge that caused the Supreme Court of the United States to revisit its holding in Smith.  Until it does, however, any analysis that rushes to the judgment that a COVID-19-related order violates the First Amendment’s Free Exercise Clause should be met with critical skepticism.

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