May 15, 2020
Perhaps due to this sentiment, people have begun to get increasingly restless for public health restrictions to be lessened or lifted as the weeks of stay-at-home orders, business closures and social distancing have dragged on. And with worship services additionally being restricted over public health concerns, it was perhaps inevitable that litigation would follow.
In the pandemic era, it is easy to question why society should concern itself with the level of restrictions on religion. But the wealth of research bridging different age levels, ethnic backgrounds, health settings and geographic location indicates that “religious involvement is related to better coping with stress and less depression, suicide, anxiety and substance abuse.”
At a time when social distancing is possibly increasing the risk of suicide and worrying experts about the possibility of more drug overdoses, ensuring people can take actions that improve their mental health – such as creating public health guidelines that also allow people to participate safely in worship services – is a critically important issue.
A number of states have seen lawsuits challenging specific restrictions on church services. Now courts have started making decisions, allowing us to get a sense of how established legal principles of religious freedom will be applied to this very novel circumstance.
In earlier articles, Sutherland Institute has suggested that the key question in these cases will be whether the government’s restrictions have been crafted to treat religious practice the same as nonreligious activities. We predicted that if this was done, the laws would be upheld, but if not, the courts would conclude that the restrictions were not narrow enough to pass constitutional scrutiny.
So, how has this prediction held up? A couple of recent cases give us some insight, though it will take time for a fuller picture to emerge.
The most recent example comes from Kentucky. On May 8, a federal trial court judge in eastern Kentucky issued a ruling in a challenge to state policy brought by Tabernacle Baptist Church in Nicholasville. The specific policy was a ban on large gatherings, but exempted from the restriction were “hardware stores, laundromats and dry cleaners, law offices, and liquor stores.”
The district court opinion focused on this discrepancy. U.S. Supreme Court precedent provides that if a government action that burdens religious practice is neutral as between religious and non-religious practices, the government does not have to show it has a compelling reason for the action. If it singles out religious practice for disfavored treatment, the government has to show it is advancing a compelling government interest and doing so in the narrowest way possible (only limiting religious freedom as much as necessary).
In this specific case, the judge found:
[that there was] ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking. If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection.
The May 8 decision relied on a decision issued a week earlier in the U.S. Court of Appeals for the Sixth Circuit. In that case, the Maryville Baptist Church in Louisville, Kentucky, held a drive-in Easter service where participants parked in the church’s parking lot to hear the sermon through a loudspeaker. State police came and “issued notices to the congregants that their attendance at the drive-in service amounted to a criminal act. The officers recorded congregants’ license plate numbers and sent letters to vehicle owners requiring them to self-quarantine for 14 days or be subject to further sanction.”
In responding to a challenge to this action, the court of appeals focused on the same disparate treatment of religious and non-religious activities that the May 8 district court decision did. It noted: “On the same Easter Sunday that police officers informed congregants they were violating criminal laws by sitting in their cars in a parking lot, hundreds of cars were parked in grocery store parking lots less than a mile from the church. The orders permit big-lot parking for secular purposes, just not for religious purposes.” So, the court concluded, “[t]he way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches.”
Perhaps as a result of cases like these, the U.S. Department of Justice has sided with a Virginia church that is suing the governor of that state for banning church gatherings of more than 10 while allowing professional offices and liquor stores to do so.
So, the question of “narrow tailoring,” in the language of the courts, has been essential.
These decisions recognize the power of the state to implement restrictions in the interest of public health and even to apply these restrictions to churches, but draw the line when churches are being treated differently from other, similar activities. In these instances, the courts have demanded that the restrictions be carefully focused to prevent only what is necessary to advance public health rather than accepting broad, categorical laws that impact religious practice.
This suggests that the system is working as it should, allowing states the ability to act in the public interest but also demanding adherence to constitutional principles when the state’s efforts start to unnecessarily pinch protected activities. The hearts of the 50% of Americans who are feeling less free due to the pandemic are likely cheered by that outcome, and the rest have reason to be grateful as well.
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