Pastors being arrested. Mayors shutting down churches. What does the law say about all of this?

Written by William C. Duncan

April 23, 2020

Originally published in The Federalist.

In the fluid pandemic situation, religious freedom is being tossed around both as an excuse for continuing public gatherings and as a focus of derision from those who are using the crisis to argue that religious people are the problem. We have seen stories of defiant pastors holding large gatherings and government officials threatening to permanently close churches that won’t comply with stay-at-home orders.

How would all of these scenarios play out in a legal contest, though? Very basically, there are three relevant rules:

  • The current U.S. Supreme Court interpretation of the First Amendment is that a law that limits religious practice is allowed as long as they affect non-religious practice in the same way.
  • If a law or practice singles out religious practice for disfavored treatment, that would be unconstitutional.
  • In jurisdictions with more robust protections for religious liberty (Religious Freedom Restoration Acts or RFRAs), the government can’t create a burden on religious practice unless it has a compelling reason for doing so and the burden has to narrowly affect only the religious practices that interfere with the government’s compelling interest.

So, let’s apply these to some real-world examples.

A Louisiana pastor is under fire for holding church services for hundreds of parishioners despite a state ban on large gatherings. His attorney argued that people, “would rather come to church and worship like free people than live like prisoners in their homes” and then suggested depression and anxiety experienced by people confined to their homes could be “worse than the people who have already contracted this virus and died,” according to an article in The Hill.

That’s not the only example. A Florida pastor was also arrested for holding large church services in defiance of an executive order meant to limit gatherings.

It’s important to note that these instances appear to be a small exception to the strong trend of religious groups cancelling services to support the effort to protect public health. A recent survey found that only “12% of respondents to a new national survey of regular churchgoers said in-person services at their house of worship have not been canceled.”

The relevant rules applying to defiant pastors here will depend on the state involved. The most high-profile case was in Louisiana which has a Religious Freedom Restoration Act. So, the legal analysis would address three questions:

  1. Does the decision to prevent religious gatherings create a burden on religious practice? The answer would appear to be yes.
  2. Does the government have a compelling reason for imposing the burden? Here the answer too would probably be yes. Preserving public health is a crucial public interest so a broad prohibition on gathering meant to prevent the spread of communicable disease is probably fine.
  3. Is the burden as narrow as possible so as not to limit religious practice more than absolutely necessary? This is often the most difficult question, but given the demonstrated risk of gatherings, and since churches aren’t singled out, the answer here is likely yes as well.

So, absent another factor, the preclusion of gatherings in Louisiana would probably be found not to be an unfair imposition on religious freedom.

In another state which does not have a RFRA, the analysis is simpler. The fact that the government bans all gatherings, religious and nonreligious, means that the government is not singling out religious practice for discrimination and so the bans would be allowed under the controlling interpretation of the U.S. Constitution.

Now, let’s take an example on the other side. In New York City, Mayor Bill de Blasio received harsh criticism when he made the ill-advised comment that churches that did not close down might be closed permanently. If Mr. de Blasio were to really try this, it would likely be held unconstitutional. While protecting public health is a valid, probably compelling, interest, a permanent ban is not the narrowest way to advance that interest. The city could probably prevent gatherings during the pandemic, but once the public health threat is over the compelling reason for the regulation disappears.

Some states are trying to avoid these conflicts entirely by recognizing the important spiritual needs of citizens while simultaneously limiting exposure to the virus. For example,  in Utah, Gov. Gary Herbert’s directive asking the state to avoid gatherings of any size, includes an accommodation for religious leaders and workers to perform their necessary work and singles out workers “necessary to plan, record, and distribute online or broadcast content to community members.” This approach allows the use of technology to meet the valid need to provide religious services while still preventing gatherings that could spread the virus.

So, in Louisiana and Florida, the courts would likely rule that the states can limit religious gatherings. In New York, the court would almost certainly reject a permanent closure of churches. Other states, that have sought a reasonable accommodation, are likely to avoid these problems entirely.

Rather than attacking government officials for trying to prevent the spread of the virus or attacking religious leaders who are trying to support and help their congregations, we could look for appropriate ways to advance both needs. At a time of uncertainty, it is normal that hard questions will develop. The basic legal standards for protecting religious freedom are flexible enough to provide initial answers to most of these questions, and the process of working to find appropriate accommodations can guide future responses to religious freedom conflicts.

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