Can Covid-19 Stop the Free Exercise of Religion?

We continue to hear about restrictions on religious services even as the country is opening back up or, in some cases, closing down again.

Many churches have chosen to comply with governmental restrictions because they are concerned about the safety of their congregations and also because of Romans 13, which essentially says that Christians should submit to the governing authorities. Obviously, if it is impossible to obey both God and man, then God comes first. But most churches have concluded that there are sufficient ways to worship God that don’t conflict with governmental restrictions.

I said most, not all. Recently, the U.S. Supreme Court was asked to rule in two lawsuits challenging restrictions on the number of people who can attend religeous services during the Covid-19 epidemic.

I’m going to try to make this as simple as possible, but let me start with a little background. The Supreme Court has consistently read the First Amendment’s Freedom of Religion Clause to hold that governments may not place any restrictions on religious beliefs and opinions. But it has also consistently held that the protection for religious PRACTICES is not absolute. In particular, it tends to uphold restrictions on religious behavior (rather than religious beliefs) if the restrictions  (1) involve an area the state is authorized to regulate (e.g., public health and safety), and (2) do not discriminate against religion (i.e., they must also apply to similar activities by secular entities). There is another test that has to do with the strength of the governmental purpose, but that test is complicated and got fuzzier in 1990, so I won’t go into it here.  Finally, the Court’s cases in other contexts make it clear that governments can impose restrictions during an emergency that will not be allowed once the emergency is over.

Both of the recent cases were filed by churches that wanted to hold services that exceeded the attendance numbers set by the state. In the California case, the governor had restricted service attendance to the smaller of 25% of building capacity or 100 individuals. The Nevada case limited attendance to 50 individuals. In each lawsuit, the church asked the Court to issue an injunction prohibiting the state from enforcing the restrictions imposed on churches. And in each instance, the Supreme Court declined.

Does that mean we should be worried about losing our religious freedoms?

No.

First, since injunctions prohibit people from acting, the standards for obtaining them are extremely high. The denial of the injunctions does not tell us anything about how the Court would rule on the same issues when presented in a different type of proceeding.

Second, the Court did not issue a decision explaining its reasoning. The result could be different in cases with facts that are not completely identical.

Third, as noted above, restrictions legally imposed during an emergency can become unconstitutional once the emergency is over.

I am firmly convinced that the First Amendment Freedom of Religion Clause still lives.

__________

Kathryn Page Camp is a retired attorney and the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion, 2^nd ed. (KPPK Publishing, 2015).