Government-ordered restrictions on public gatherings of 10 people or more began emerging around the country in early March of 2020, followed closely by “shelter-at-home” directives. The regulations, designed to help slow the spread of the unfolding COVID-19 (coronavirus) pandemic, received almost instantaneous pushback from some religious leaders and groups.
Their primary concern: the orders represent an overreach by governments, violating protections found in the First Amendment’s guaranty of religious freedom.
While the protection of religious belief is considered absolute under the First Amendment, the protection of religious exercise has limitations. Church legal experts have noted restrictions are constitutionally possible, depending on the circumstances involved and the types of measures implemented.
“The rights in the Bill of Rights, including the free exercise of religion, are not absolute,” said attorney and Church Law & Tax senior editor Richard Hammar in a webinar given on March 18, 2020. “They are subject to exceptions. The Supreme Court of the United States has said that the freedom of religion guaranteed by the First Amendment is superseded by health and safety regulations of government agencies.”
Examples of permissible regulations include permits for construction projects, building codes for fire prevention and safety, and food safety regulations for church-run kitchens serving the public, Hammar added.
However, a recent statement issued by US Attorney General William Barr reminded local municipalities of the limitations to their regulations when they intersect with religious activities.
Religious liberty lawsuits
Individuals and organizations expressing religious liberty concerns grew increasingly vocal in the days leading up to Easter Sunday, and have in the days since. Some churches attempted to work around directives by hosting drive-in worship services—only to be met in some instances by resistance from local law enforcement. The controversy now centers on whether state and local restrictions, perhaps constitutionally permissible in an emergency like the pandemic, still run aground by unfairly targeting religious groups and gatherings.
For instance, Greenville, Mississippi, issued an April 7, 2020, order closing churches and barring drive-in and parking lot services. Members of one church subsequently were given $500 citations as they attended a drive-in service with their windows up and their doors closed. Meanwhile, nearby businesses allegedly served patrons via drive-throughs without penalty.
Lawsuits have ensued, and Barr himself criticized Greenville’s mayor and police department as news reports of the ticketing gained national attention. The mayor has since reversed the ban on drive-in services.
Similar legal battles between municipalities and churches are emerging elsewhere, including Tennessee and Kansas (on April 25, 2020, Kansas Governor Laura Kelly reached a settlement with two Baptist churches that brought challenges there). A New Mexico federal district court on April 17, 2020, refused a megachurch’s request to stop enforcement of that state’s five-person public-gathering limit.
Update. Pew Research released this map graphic on April 27, 2020, showing most states offer some type of religious exemptions for social-distancing measures.
What government can—and cannot—do
In an April 14, 2020, statement, the Attorney General noted “the constitution does allow some temporary restriction on our liberties that would not be tolerated in normal circumstances,” and characterizes the social distancing measures tied to the coronavirus outbreak as one meriting special treatment.
However, Barr also said:
But even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers. Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity. For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings. Religious institutions must not be singled out for special burdens.
He then later continued:
[W]here a state has not acted evenhandedly, it must have a compelling reason to impose restrictions on places of worship and must ensure that those restrictions are narrowly tailored to advance its compelling interest. While we believe that during this period there is a sufficient basis for the social distancing rules that have been put in place, the scope and justification of restrictions beyond that will have to be assessed based on the circumstances as they evolve.
Religious freedom protections
The federal statutory law that Barr referenced is the Religious Freedom Restoration Act (RFRA), which was passed nearly unanimously in 1993 by Congress in response to a controversial Supreme Court decision made three years earlier. Twenty-one states have subsequently passed their own RFRAs after a 1997 Supreme Court decision barred the application of the federal RFRA to state-level activities.
Whether the federal RFRA or a state RFRA, the key language involved—as mirrored in Barr’s recent statement—emphasizes any government law or action that significantly burdens religious exercise must be both necessary to advance a compelling government interest and crafted in the least-restrictive manner possible. This high standard is difficult, albeit still possible, to meet. For a church in a state with a RFRA, such a law can serve as an effective defense if a local or state ordinance or law—or the application of one—appears to greatly affect churches, even during the current pandemic crisis.
But not every state has a RFRA on the books, and only some have court decisions that include language extending protections of this sort. If questions or concerns arise, church leaders should consult with qualified local legal counsel.
Relatedly, local, state, and federal government entities are also limited in how they create ordinances or laws that appear neutral and broadly applicable on the surface, but were either covertly intended to target religious exercise and activity or enforced in such a manner.
In the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the Court held that a law described to be neutral and generally applicable, but instead truly created or enforced to target religious exercise, also must meet the high standard of fulfilling a compelling government interest in the least-restrictive way possible. This means a church may still be in a position to mount a formidable challenge to a neutral, generally applicable restriction or law adopted during the pandemic if it can show the true purpose—either in its adoption or enforcement—was instead to target religious activity.
To learn more about how federal and state courts decide religious freedom cases, and to understand which states have their own RFRAs, check out the 50-State Religious Freedom Laws Report, a new downloadable resource from Church Law & Tax.