UPDATE: Banning Religious Assemblies to Stop the Spread of COVID-19

UPDATE: Banning Religious Assemblies to Stop the Spread of COVID-19

Legal Sidebari
UPDATE: Banning Religious Assemblies to
Stop the Spread of COVID-19
Updated June 1, 2020
Update: On May 29, 2020, the Supreme Court denied two petitions for certiorari appealing lower court
decisions on gathering bans in Illinois and California. The U.S. Courts of Appeals for the Seventh Circuit
and Ninth Circuit had both affirmed preliminary rulings in favor of the government, rejecting churches’
requests for preliminary injunctions that would have prevented the two states from enforcing their orders
limiting mass gatherings. The Supreme Court denied the petition in the Illinois case, noting that the state
had issued new guidance providing guidelines for worship services. In the California case, Chief Justice
Roberts wrote an opinion concurring in the Court’s one-sentence order denying the appeal to explain why
he believed the churches were not entitled to an injunction. In particular, he said that California’s
restrictions on places of worship appeared “consistent” with the Free Exercise Clause because churches
were being treated similarly to comparable secular gatherings. He also emphasized that, under the
circumstances, courts likely should not be “second-guessing” the public health decisions made by state
officials. Four Justices would have granted the California churches’ petition. Justice Kavanaugh wrote a
separate opinion stating that in his view, the California order unconstitutionally discriminated against
religious worship by treating worship services worse than comparable secular businesses. There are a
number of ongoing court proceedings across the country, and it is possible that another case challenging
a gathering ban on First Amendment grounds will reach the Supreme Court.
The original post from April 16, 2020, is below.
Most of the United States is now subject to some form of state or local order directing residents to “stay at
home” and closing nonessential businesses in response to Coronavirus Disease 2019 (COVID-19). While
the particulars of the orders vary, some state and local orders prohibit in-person religious gatherings and
require houses of worship to shut down physical facilities. To the extent that the orders burden residents’
exercise of religion, they may implicate federal and state protections for religious freedom, including the
Free Exercise Clause of the U.S. Constitution’s First Amendment. Some of these bans are already being
chal enged in court, and at least one Kentucky church has prevailed in its legal chal enge: on April 11,
2020, a federal district court entered a temporary restraining order preventing the Louisvil e mayor from
prohibiting “drive-in church services.” By contrast, a day earlier, another federal court had declined to
grant a California church an exemption from a San Diego order prohibiting in-person religious gatherings.
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This Legal Sidebar explores legal chal enges to orders prohibiting religious gatherings, focusing on Free
Exercise Clause arguments. A separate Sidebar discusses other First Amendment considerations raised by
the gathering bans, including whether stay-at-home orders violate federal constitutional protections for
freedom of speech.
Legal Background: Free Exercise Clause
The First Amendment to the U.S. Constitution bars federal and state governments from “prohibiting the
free exercise” of religion. (The First Amendment applies to state governments through the Fourteenth
Amendment.) Governments may not regulate religious beliefs, for example, by compel ing people to
affirm certain views or punishing the expression of specific beliefs. Governments also may not punish
religiously motivated actions if the government is motivated by a purpose to disapprove of a specific
religion or religion in general. Thus, the Supreme Court has said that a law specifical y prohibiting casting
statues for worship or “bowing down before a golden calf” “would doubtless be unconstitutional.”
However, governments can regulate religious actions through laws of general applicability that do not
specifical y target religious activity. In Employment Division v. Smith, the Supreme Court held that a state
could, without violating the Free Exercise Clause, deny unemployment benefits to two members of a
Native American church who had used peyote for sacramental purposes. The church members’ peyote use
violated state drug laws: criminal laws that general y prohibited the use of certain drugs and were “not
specifical y directed at their religious practice.” The Supreme Court said that “the right of free exercise
does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).’” Accordingly, under Smith, if a law is general y applicable and neutral with respect to
religion—that is, if it does not “target” specific types of religious exercise or reflect hostility tow ards
religion, but prohibits specific activities regardless of whether they are religiously motivated—the
government can apply that law to religiously motivated activities without violating the First Amendment’s
Free Exercise Clause, even if the law “would interfere significantly with private persons’ ability to pursue
spiritual fulfil ment according to their own religious beliefs.”
On the other hand, the Court has said that if a law does “infringe upon or restrict practices because of
their religious motivation,” it wil be subject to strict scrutiny and ruled “invalid unless it is justified by a
compel ing interest and is narrowly tailored to advance that interest.” The Supreme Court has struck down
laws that were “gerrymandered” to prohibit only religious activities and laws that, on their face,
“expressly discriminate[d] against” individuals because they are religious. The Supreme Court has also
ruled that governments may violate the Free Exercise Clause if they apply laws in a way that
demonstrates hostility to religion. For example, in a 1953 decision, the Supreme Court held that a city
acted unconstitutional y when it applied a local law prohibiting people from “address[ing] any political or
religious meeting in any public park” to a minister who addressed a group of Jehovah’s Witnesses.
Observing that other religious groups had been al owed to hold church services in local parks, the Court
concluded that, by treating the Jehovah’s Witnesses’ service differently, the city was unconstitutional y
“preferring some religious groups over this one.”
It is possible, however, that courts might apply different standards of review to free exercise chal enges in
emergency situations. As discussed in more detail in this Sidebar, some intermediate federal courts of
appeal have held that in limited emergency circumstances, courts may apply a more lenient standard of
review to analyze the constitutionality of measures responding to the emergency. The U.S. Court of
Appeals for the Fifth Circuit outlined one such standard on April 7, 2020, in a case considering the
constitutionality of a Texas order affecting the availability of abortions. The Fifth Circuit said that in an
emergency, the government may “curtail constitutional rights so long as the measures have at least some
‘real or substantial relation’ to the public health crisis and are not ‘beyond al question, a plain, palpable
invasion of rights secured by the fundamental law.’” The court was quoting from a 1905 Supreme Court

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decision, Jacobson v. Massachusetts, in which the Court rejected a constitutional chal enge to a law
requiring smal pox vaccinations. Other federal appel ate courts have applied an emergency-circumstances
standard that asks whether the government acted in “good faith” and “whether there is some factual basis”
to conclude that the acts “were necessary to maintain order.” There is, however, relatively little judicial
precedent specifical y testing how free exercise chal enges should be adjudicated in an emergency.
Gathering Bans
Most states and many local governments have responded to the threat posed by COVID-19 by adopting
orders that direct residents to stay at home, ban certain types of in-person gatherings, and shut down the
facilities of nonessential businesses. Some state orders, like Maryland’s March 30 order, expressly
prohibit religious gatherings. Other orders implicitly ban religious services if they qualify as in-person
gatherings that meet the relevant size requirements, and may require houses of worship to close physical
facilities if they qualify as covered nonessential businesses. To the extent that these coronavirus-related
emergency orders prohibit religious gatherings, they may implicate the Free Exercise Clause of the First
Amendment. In light of these concerns, some state orders exempt houses of worship or provide other
forms of accommodation to religious exercise. New York, for example, issued guidance stating that
“houses of worship are not ordered closed,” interpreting an early iteration of its order closing in-person
activities of non-essential businesses. Texas’s statewide order issued on March 31 classified “religious
services conducted in churches, congregations, and houses of worship” as “essential services.”
Some houses of worship have defied state and local gathering bans. On March 30, one Florida pastor who
held church services disobeying a local quarantine order was arrested and faced misdemeanor charges.
(The Florida governor later issued a statewide stay-at-home order classifying religious activities as
permitted “essential activities.” The statewide order superseded “conflicting” local orders.) Other
churches and religious individuals have brought lawsuits preemptively chal enging state orders in
California, Virginia, and elsewhere. For instance, the Department of Justice recently filed a statement of
interest in one proceeding in a federal trial court in Mississippi, arguing that a city measure prohibiting
drive-in church services is unconstitutional because the measure treats churches worse than other
businesses, such as restaurants, that are permitted to operate drive through services.
Under Smith, to the extent that emergency orders prohibiting in-person gatherings are general y applicable
to a variety of different gatherings and neutral with respect to religion, they could likely be applied to
religious gatherings without having to satisfy strict scrutiny under the First Amendment. In at least one
free exercise chal enge in San Diego, the government argued that its order is permissible under Smith as a
valid and neutral law of general applicability. Nonetheless, even if a law is general y applicable on its
face, if there is evidence that a government is targeting certain religious groups for violating quarantine
orders, or if a government is giving preferential treatment to secular gatherings, as compared to similarly
situated religious gatherings, a court might review the government’s action under a heightened standard
of scrutiny. Government actions may be particularly susceptible to legal chal enge if they do not appear
sufficiently tailored to address the particular emergency at hand.
For example, one federal trial court in Kentucky ruled on April 11 that by prohibiting “drive-in church
services,” the mayor of Louisvil e, Kentucky, was not acting in “a manner that” was “‘neutral’ between
religious and non-religious conduct.” The court said the mayor made “orders and threats that [were] not
‘general y applicable’ to both religious and non-religious conduct,” al owing other types of activities to
continue by way of parking or drive-through. (Some have questioned whether this order did in fact
sanction drive-in church services—the mayor said he had not threatened any “legal enforcement” against
drive-in services—but the court described it as doing so.) The court noted that Louisvil e had al owed
drive-through liquor stores to remain open. As a result, the court concluded that the city had to satisfy
strict scrutiny and show that the prohibition on religious services was narrowly tailored to a compel ing
government interest. The court held that the city likely could not meet this strict standard, ruling that

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prohibiting residents from “worshiping together” “in the relative safety of their cars” likely violated the
First Amendment. The trial court cited the Fifth’s Circuit’s test for evaluating emergency orders quoted
above, saying that the mayor could implement emergency measures that “have at least some ‘real or
substantial relation’ to the public health crisis and are not ‘beyond al question, a plain, palpable invasion
of rights secured by the fundamental law.’” But because the court concluded that the mayor’s order did,
“beyond al question,” violate the Free Exercise Clause, the order did not pass muster under this more
lenient standard. The Kentucky trial court entered a temporary restraining order, an initial decision that
may be subject to further review.
Other pending legal chal enges may test whether other governments can meet the strict scrutiny standard.
Some have argued that measures responding to a global pandemic should satisfy strict scrutiny, pointing
out the gravity of the threat and noting that most orders are limited in time and al ow individuals to
continue worshipping in alternative ways. For instance, in response to the Florida pastor above who
argued that the local government violated the First Amendment by prosecuting him, the government
claimed (as summarized by the Washington Post) that it had “a compel ing government interest of
stopping the virus, the order is narrowly tailored to be temporary, and the church—like other services—
can stil reach its audience online.” On April 10, a federal judge in California denied a church’s request
for an order that would have prevented San Diego County from enforcing its stay-at-home order
prohibiting religious gatherings. The court’s precise reasoning is not entirely clear from news reports
discussing the court’s ruling, which was issued by telephone, but it appears that the judge viewed the
government as having a compel ing interest in responding to “a severe public health crisis,” and noted
that the church had alternative methods of worship, such as live-streaming its services. On the other hand,
as the Kentucky ruling demonstrates, government orders may not satisfy strict scrutiny, particularly if an
order prevents methods of gathering such as drive-through services that are al owed for non-religious
gatherings. It wil likely be more difficult for broader prohibitions that reach beyond face-to-face
gatherings or are not limited in duration to satisfy heightened review standards.
Considerations for Congress
As the Department of Justice’s recent filing in the Mississippi litigation reflects, state level restrictions on
religious gatherings may implicate federal interests in protecting free exercise rights. Moreover, cases
testing the constitutionality of the gathering bans wil be relevant to Congress as it mulls federal
responses to COVID-19. These cases may demonstrate whether and how the government may limit
religious gatherings in response to emergency circumstances. In late March, some lawmakers cal ed for a
uniform federal stay-at-home order. Commentators have argued that religious exemptions from gathering
bans undermine public health efforts by al owing the disease to spread at religious gatherings. If the
federal government were to properly exercise one of its enumerated powers to institute a nationwide
order, Smith suggests that, so long as the order is general y applicable and neutral with respect to religion,
it could be applied to religious gatherings without violating the Free Exercise Clause. The
constitutionality of any such action may, however, stil depend on whether religious gatherings are treated
similarly to other types of nonreligious activities.
On the other hand, others have raised concerns about inadequate protections for religious practice during
the pandemic. To the extent Congress shares those concerns, it could potential y invoke its power under
Section 5 of the Fourteenth Amendment to protect free exercise rights and prevent states and localities
from prohibiting religious gatherings. However, when Congress exercises its Section 5 authority, the
Supreme Court has said that Congress’s response must be congruent and proportional to a demonstrated
harm. Any law would have to be carefully tailored to respond to state action, and a court would probably
look for a legislative record “show[ing] the evidence . . . of a constitutional wrong.”
More broadly, these cases may also shed light on an area of the law—free exercise jurisprudence—that is
somewhat in flux. In February, the Supreme Court granted the petition for certiorari in Fulton v. City of

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Philadelphia. The petitioners in that case have asked the Court to reconsider Smith, reflecting broader
dissatisfaction with the rule announced in that decision. How lower courts evaluating chal enges to stay-
at-home orders treat Smith and what standard they to use to review chal enged actions may provide
further insight into an evolving area of the law.

Author Information

Valerie C. Brannon

Legislative Attorney

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