In light of the current Coronavirus (COVID-19) pandemic, many states and localities are taking aggressive measures to combat the spread of the virus. Some of these measures include recommendations or mandates banning large gatherings, including church services and activities. These actions have naturally led to some concern about church closures and the Constitution. At the ACLJ, we are monitoring the situation, and want to assure you that thus far we have not seen any examples of unconstitutional actions under the circumstances.
Normally the notion of government agents shutting churches down would trigger immediate strong concerns about breaches of religious liberty. And, of course, if churches are singled out for such hostile treatment, this would be a textbook violation of the First Amendment’s Free Exercise Clause.
This does not mean, however, that churches are entitled to a special exemption to public safety measures that are applied evenhandedly. For example, if police are chasing a robber, they can pursue the robber in a church parking lot as much as in a grocery store parking lot. This is different from police disregarding only church property rights. If firefighters need to cut down trees to halt a spreading fire, trees on the grounds of a place of worship, a private business, and a residence are all liable to be taken down. Likewise, if a disease epidemic requires imposition of a curfew, or quarantine, or prohibition of large gatherings, this can be legitimate so long as there is no unfairness in the government’s treatment of religious institutions and persons.
The watchword here is neutrality: Is the government being neutral toward religion, or is the government instead imposing special burdens on religion and its adherents? So long as the government maintains a neutral approach, addresses an objectively serious threat, and does not use that threat as a pretext for targeting disfavored religious entities and adherents, then churches, synagogues, mosques, and other religious bodies cannot claim unconstitutional discrimination.
We’ve litigated many of these religious liberty and free speech cases at the Supreme Court over the years and can tell you that these narrowly tailored, time, place, and manor restrictions, when done in the least restrictive means and in the face of a compelling state interest such as the safety of the public as we see here, are in fact constitutional.
That said, a prohibition on public gatherings is a pretty drastic measure, one that naturally raises concerns and comparisons to the actions of totalitarian regimes past and present. It is incumbent upon the government to reserve such strong medicine for genuinely serious dangers, and to lift those restrictions as soon as the threat has passed.
Also, different – and stricter – rules apply to the federal government on this score. While state and local governments can neutrally apply safety measures to churches, the federal government must meet a higher standard under the Religious Freedom Restoration Act (RFRA). If the federal action imposes a substantial burden on religious exercise – and closing churches certainly would do so – then the federal government must prove that it acts to further a compelling interest and is taking the least restrictive means to further that interest. (Some states also provide similar extra protection for religion under their own constitutions and statutes.)
In this situation, the Coronavirus reportedly poses a severe threat to public health and safety, the remedial measures are temporary, and they are being enforced at the state and local level (remember the federal guidelines are merely recommendations at this point). Churches are actively involved in the process and finding unique ways to provide church services online and through other means. Churches are actively working with state and local officials to minister to their communities and are committed across the board to not only the spiritual health but also the physical health of their members. This coming together of community is a key part of the fight to stop the spread of this pandemic, and we are encouraged to see how churches are working with their communities and engaging this important issue.
At the ACLJ, we will continue to closely monitor this situation. If you believe that your rights have been violated by something that goes far beyond these measures in an extreme way or that your church has been specifically targeted in a way that does not apply equally to other gatherings, please contact us at ACLJ.org/HELP. That is what we are here for.
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