Katherine Beck Johnson is FRC's Research Fellow for Legal and Policy Studies. This article appeared in CNS News on April 15, 2020.
As churches adopt drive-in worship services as a creative way to comply with bans on large gatherings, some local authorities have gone too far in restricting religious gatherings.
A federal judge in Kentucky just held that Louisville’s Easter ban on drive-through church services violates the First Amendment. In addition, the Department of Justice filed a statement of interest in a Mississippi case where the local police were fining people for attending drive-in church services. These arbitrary restrictions unconstitutionally hamper religious liberty.
An increasing number of states have instituted shelter-in-place orders. The strictness of the order varies by state. However, most states will only allow people to leave their homes for “essential” purposes, such as grocery shopping, picking up medical supplies, or socially-distanced walking. These states have also placed restrictions on how many people can gather in one place at the same time and the limit is often ten people.
Many Americans, for whom faith is essential, have grappled with how to gather for worship under these conditions. The gathering restrictions have led to a shift in how we are spiritually fed, with many churches conducting services through live streams, holding drive-in services, and other means.
While some states and localities, such as Michigan, Kansas, and New Mexico, have exempted churches from the neutral ban and have recognized the church’s crucial role in spiritually feeding the flock, a government is not required by the free exercise clause to allow this exemption.
Texas has noted that the state must protect religious liberty. Texas deems religious services as essential. However, there are still some limitations on houses of worship, and they are encouraged to conduct their activities through remote audio and video services whenever possible. Florida has also deemed attending religious services conducted in churches, synagogues, and houses of worship as essential. This may be wise and helpful public policy, especially as governments consider how to work with their communities to maintain order, but it is not required by the First Amendment.
The ability to gather and practice our faith is a fundamental right. However, even under the most robust standard of First Amendment religious freedom law, there can be some restrictions. The government cannot decide to “substantially burden” or stop church gatherings or other sincere religious practices without (1) showing a compelling interest, and (2) demonstrating that it is restricting religious freedom in the narrowest way possible to advance its compelling interest.
The coronavirus provides the government with a compelling interest—to contain a pandemic and save lives. And limiting the number of people gathered together is likely the narrowest and least restrictive means of doing so. Thus, the neutral and generally applicable restrictions on gatherings being put in place nationwide are perfectly constitutional – even if they have the effect of limiting religious meetings along with other types of meetings.
However, if religious gatherings or entities are discriminated against for no valid reason, the government’s action likely violates the Constitution. The Supreme Court recently reminded us in Masterpiece Cakeshop v. Colorado Civil Rights Commission that governments cannot show “hostility” to religion in their decision making. For example, if the state is allowing people to gather in large groups at movie theaters but forbids people to gather at churches, this is unconstitutional discrimination. If such discrimination is occurring, a church may have recourse and should contact the Department of Justice's Office of Civil Rights.
Several officials have verbally expressed policy positions that could be unconstitutional. It’s hard to forget when Mayor de Blasio threatened in March to “permanently” shut down New York City churches and synagogues if they did not cease operations.
What exactly he meant by “permanently” is unclear. If he has in mind shuttering a noncompliant place of worship for the duration of the temporary gathering restriction (instead of responding to each meeting attempt), that is different from closing the church permanently post-coronavirus. He should immediately clarify what he meant. The current ambiguity in his statement could pave the way for an unconstitutional policy, and certainly lends credibility to fears of government overreach.
Even in the midst of the most trying of circumstances, the right to freely exercise one’s religion must not be targeted. These are trying times for all Americans, but it is also a time to encourage all Americans to care for those around them and protect the health and safety of our neighbors.