Can the government order churches to close without violating the First Amendment?

Written by William C. Duncan

March 23, 2020

Churches are often at the forefront of emergency response and caring for the needy. The pandemic of COVID-19 has been no exception. Churches and other religious groups have been careful about promoting responsible precautions to ensure the disease does not spread.

Questions are being asked, however, about the extent of the state’s ability to direct churches to close in the event of an emergency like the current worldwide pandemic. Recently a church in Baton Rouge still congregated despite orders from the governor, but a local news organization then reported the Louisiana National Guard would not be breaking up large gatherings.

So under what circumstances can the state order a church to stop meeting?

In Utah currently, churches and all other organizations are being asked not to host gatherings. This is likely to be allowed under the current interpretation of Free Exercise in the First Amendment. The key case is Employment Division, Department of Human Resources of Oregon v. Smith. Here, members of the Native American Church were fired for using peyote in a religious ceremony and denied unemployment compensation (since they were fired for “misconduct”). The Supreme Court held that if the state passes a law that applies neutrally to all kinds of conduct, whether religious or nonreligious, the fact that it might have an effect on religious practice does not make that law unconstitutional as a violation of religious liberty. That is the case that we see now, where all gatherings, religious and nonreligious are constrained.

In the past, the Smith decision has been criticized as not sufficiently protective of religious practice. The facts of that case, for instance, arguably merit an exception to the general prohibition on drug use. In fact, prior to Smith, the Supreme Court had used a test that was more protective of religious freedom – requiring the government to show a compelling interest in limiting religious practice even if the limit was neutrally applied to religious and nonreligious entities.

This does not mean there are no limits on what the government can do. What if a government were to order churches, and only churches, to close? It’s hard to imagine why that would happen, but we can play out the scenario to understand some of the constitutional limits on state power. Let’s say the government believes that church services are giving false hope to victims of a pandemic, or the neighbors are annoyed by traffic of those going to a service, or something. So the mayor orders church services to be suspended.

This order would almost surely be held unconstitutional. The leading Supreme Court case, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, involved a local city ordinance in Florida which prohibited the slaughter of chickens, which was drafted in such a way that it only applied to a ritual practice of the Santeria religion. The court said that singling out a church for disfavored treatment is a violation of the Free Exercise Clause – the government cannot place a burden on religion that it does not place on other organizations or individuals.

This is an important final point. Even a government decision that is unconstitutional on its face, like ordering only churches to close, is not necessarily precluded in special circumstances. Typically, all constitutional rights, even those clearly fundamental, can be limited if the government can show it has a compelling interest in the limitation and that it has carefully drafted the limitation so it only affects the religious practice to the degree necessary to advance that interest.

So if the government can show that a public health emergency, like a pandemic, necessitated the closure, that may very well be enough to justify the decision.

The U.S. Supreme Court has tried to craft legal tests that prevent incursions on religious liberty but not in an absolutist way that threatens public stability in case of a truly unusual need. That line-drawing exercise is open to criticism, and it is good to continue discussing whether those lines have been drawn in the right place.

In the current case of the coronavirus pandemic, since the limitations of public gatherings have been generally applied to religious and nonreligious organizations alike, it is likely constitutional. However, the government could always move to apply them in ways that violate constitutional rights.

How fortunate we are, then, that we live in a state in which both elected leaders and citizens tend to recognize the value and importance of religious freedom and, as in the Florida case, those who are unfairly treated can get their rights vindicated.

This commentary was inspired in part by a recent podcast with David French and Sarah Isgur. For further discussion of this and other pandemic-related constitutional questions you can listen here.

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