There is no doubt that the current national COVID-19 crisis has required the imposition of extraordinary measures. These measures have required countless businesses, churches, and gathering places to close, and naturally raise concerns regarding the preservation of civil liberties and religious freedom.
In recognition of this fact, on April 27, 2020, United States Attorney General Bill Barr issued a memorandum regarding the current COVID-19 crisis and the imposition of regulations by local and state governments resulting in the infringement of constitutional and statutory protections. As the Attorney General correctly noted, “the Constitution is not suspended in times of crisis. We must therefore be vigilant to ensure its protections are preserved, at the same time that the public is protected.” The Attorney General reminded local and state authorities that the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers and advised U.S. Attorneys be on the lookout for state and local policies that cross the line from appropriate exercise of authority into an overbearing infringement of constitutional and statutory protections.
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend I. As Supreme Court Justice Anthony Kennedy explained, “no person may be restricted or demeaned by government in exercising his or her religion.”
In a recent federal district court opinion addressing how the current crisis is impacting churches, the court explained that today, and with the expansion of government in recent years, “the Free Exercise Clause is more important than ever.” On Fire Christian Center v. Fischer, No. 20-00264, 2020 U.S. Dist. LEXIS 65924, at *6 (Apr. 11, 2020). While local and state efforts to protect its citizens during the COVID-19 crisis are important, constitutional rights must be preserved, and that includes “the freedom to worship as we choose.” Id. at *17. How the government addresses the health crisis is the question. The Supreme Court has repeatedly held that “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”
Specifically, and during the COVID-19 pandemic, federal courts have reiterated that “[t]he police power of the state is not without its limits and is subject to appropriate judicial scrutiny.” First Baptist Church v. Kelly. No. 20-1102-JWB, 2020 U.S. Dist. LEXIS 68267, at *15 (D. Kan. Apr. 18, 2020). Thus, “if the law, regulation or order implemented by local or state government officials discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons,” the protections of the First Amendment apply. Id. at *19. “A law is under inclusive, and thus not generally applicable, when it fails to prohibit secular activity that endangers the same interests to a similar or greater degree than the prohibited religious conduct.” Id. at *20-21. Simply put, any “prohibition that society is prepared to impose upon [religious] worshippers but not upon itself” is not generally applicable and is subject to strict scrutiny. A law will be invalidated “[w]hen ‘[t]he proffered objectives are not pursued with respect to analogous non-religious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.’” First Baptist Church, 2020 U.S. Dist. LEXIS 68267, at *17.
Accordingly, any regulation implemented by local or state authorities must be neutral or generally applicable between religious and non-religious conduct. Any ban on religious activity when there are exceptions for comparable secular activities is discriminatory. “As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law.”
Several state regulations have come under scrutiny in recent weeks due to their discriminatory treatment of churches. In First Baptist Church, the court issued a Temporary Restraining Order (“TRO”) protecting religious communities from the Kansas Governor’s order limiting church gatherings. The Governor’s order prohibited religious and other gatherings of more than ten persons, but exempted a long list of secular facilities including airports, childcare locations, hotels, food pantries and shelters, retail establishments and grocery stores. First Baptist Church, 2020 U.S. Dist. LEXIS 68267, at *30. These secular facilities, the court noted, were no different in regards to the “personal contact that would occur during the in-person religious services.” Id. The court held that this disparity between religious activity and secular facilities “has been imposed without any apparent explanation for the differing treatment of religious gatherings.” Id. at 23. “The health and safety concerns arising from people attending religious services inside a church would logically be present with respect to most if not all these other essential activities.” Id. Based on these facts, the court concluded that the order “is not narrowly tailored to achieve the state public health goals where the comparable secular gatherings are subjected to much less restrictive conditions.” Id. at *24-25.
More recently, a federal court in North Carolina issued an order blocking the Governor’s order restricting churches from holding indoor services for more than 10 people. The court held that the order failed to treat religious entities and individuals neutrally.
Similarly, the Sixth Circuit Court of Appeals enjoined Kentucky’s Governor and Commonwealth officials from enforcing an order prohibiting church gatherings. In that case, the order challenged by the church prohibited faith-based mass gatherings but permitted several essential or “life-sustaining” operations such as law firms, laundromats, and grocery and liquor stores. The court found that the order contained “several hallmarks of discrimination.” Noting the disparate treatment of churches and religious activities, the Sixth Circuit posed the question, “Why can someone safely walk down a grocery store aisle but not a pew?” The same question must be asked of every local and state regulation under these circumstances. Why can more than ten people enter a grocery store at any given time, but not enter into a church building to exercise their inalienable right to engage in religious worship? Why can restaurants open at fifty percent capacity while churches are ordered to limit their capacity to ten people?
Fortunately, the Department of Justice is vigilantly monitoring states’ regulations and re-opening plans. Earlier this week, the DOJ put California Governor Gavin Newsom on notice that his plan to re-open, which keeps churches from opening under the same terms as schools, restaurants, offices, and shopping malls, discriminates against religious groups. In its letter to the Governor, the DOJ reiterated that “civil rights protections mandate equal treatment of persons and activities of a secular and religious nature.” In addition, the DOJ has filed briefs in support of churches in Virginia and Mississippi which have filed suit challenging the constitutionality of state shut-down orders.
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