COVID-19 AND RELIGIOUS FREEDOM
Christian Legal Society Recognizes the Inalienable Right to Gather
Christian Legal Society (CLS) has been monitoring the many legal challenges to the closings of churches and religious congregations in this time of COVID-19. Through its Center for Law and Religious Freedom, CLS has been on the frontlines of religious freedom for decades. CLS believes that the First Amendment right for religious congregations to assemble is unalienable and fundamental.
CLS partnered with the Evangelical Council for Financial Accountability to hold a webinar on June 9, 2020, to discuss the the legal and practical considerations of resuming in-person religious activities. CLS is pleased to provide the video of the webinar and additional resources for churches and ministries considering and praying over when and how to reopen. Click here to see the webinar and resource page.
CLS also recognizes that at the time many of these orders were instituted, the consensus view of the medical community was that preventing large gatherings of people was necessary to prevent the spread of the coronavirus from overwhelming our hospitals and medical facilities. We recognize that courts have a tough task between recognizing the government’s responsibilities to prevent unmitigated spread of the COVID-19 strain of coronavirus and not infringing on the religious rights of Americans.
CLS commends the churches and religious organizations that have found alternative ways of meeting, such as through livestreaming or webinars. We also recognize, however, that, for many, such measures are not a worthy substitute for gathering together bodily, leading to many legal challenges to stay-at-home orders.
Each state’s order is different. According to the Pew Research Center, 15 states have no size restriction on religious gatherings. In 10 states, religious gatherings of any size are prohibited. As such, no statement CLS can make at this time would apply to all situations. There are, however, three principles that we can discern from court orders to date regarding challenges to such stay-at-home orders.
Be prepared to go the extra mile. Courts are seeking a balance between the religious rights of church congregations and the states’ interest in preventing the spread of COVID-19. Churches that are winning their cases are taking steps to show the court that they take the state’s interest seriously. In three of the four first successful challenges, the plaintiffs received an injunction allowing them to have “drive-in” services, where people would stay in their cars for the entire service. Only in one case, First Baptist Church v. Kelly, did the court issue an injunction allowing in-person gatherings, and even then such gatherings were subject to strict social distancing requirements that the churches spelled out for the court.
Challenges to in-person services are starting to gain more traction. Two courts, including the Sixth Circuit, issuing injunctions against Kentucky’s ban on in-person meetings, subject to social distancing requirements. A federal district court in North Carolina also struck down an order prohibiting in-person church gatherings. Many other challenges requesting courts to allow in-person relief have been rebuffed, especially where the shut-in orders allow for drive-in services. Where churches are proactive in alleviating the justifiable concerns of federal district judges regarding potential spread of the virus, they have been more successful.
In light of this consideration and the general welfare of their congregations, churches may want to review recent CDC Guidelines for Faith-Based Gatherings.
RFRAs matter. All of the successful challenges to stay-at-home orders by religious organizations have occurred in states that have passed some form of RFRA, or Religious Freedom Restoration Act. Although these courts have relied on the state RFRAs to varying degrees, it is not coincidental that all of the successful challenges have occurred in these states. See Maryville Baptist Church, Inc. v. Beshear, No. 20-5427 (6th Cir. 2020) (holding that plaintiffs were likely to prevail on Kentucky RFRA claims); On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264 (W.D. Ky. Apr. 11, 2020) (identifying Kentucky’s RFRA as one of two legal bases in which the church would likely prevail); First Baptist Church v. Kelly (court relied on First Amendment grounds, but Kansas RFRA also raised by plaintiffs). Similarly, lawsuits that resulted in religious congregations getting relief before the issuance of a court order were filed in states that have a RFRA. At least two other successful challenges have occurred in Kentucky, and, until recently, all successful challenges regarding in-person meetings occurred in RFRA states. A recent decision in North Carolina enjoining in-person meeting restrictions became the first successful challenge to in-person restrictions in a state without a RFRA.
Without a state RFRA, courts are generally left to the framework of Smith v. Employment Division, 494 U.S. 872 (1990), in which no law violates the Free Exercise Clause if a court determines it is neutral and generally applicable. To date, all courts applying Smith have held that stay-at-home orders are not constitutionally suspect with regards to religious gatherings. Notably, where a state RFRA was also applicable, many courts have held that the framework of Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) applies. Under this framework, a law is not generally applicable where it is subject to exceptions. Where the government grants some exceptions, but refuses to grant a religious exception, the government must justify the lack of a religious exception. Even though Lukumi is a question of federal law, at least part of the justification for its application appears to be that where states protect substantial burdens to religion, a regulation that does not provide religious organizations at least similar status to other organizations is not neutral to religion. Thus, even in the calculus of federal free exercise rights, state RFRAs matter.
Governments are bound to the emergency powers they set out for themselves. A more recent trend has seen courts overturning stay-at-home orders where a governor’s stay-at-home order extends beyond the emergency powers granted to him/her. Though not brought by a religious congregation, stay-at-home orders in Wisconsin were invalidated by Wisconsin’s highest court, which held that the governor’s safer-at-home orders exceeded his authority. A very recent decision in Oregon similarly held that Governor Kate Brown had exceeded her authority in her stay-at-home order.
7/27 Update: The Supreme Court Strikes Again in Calvary Chapel Dayton Valley v. Sisolak
On July 24, 2020, the Supreme Court once again denied injunctive relief to churches challenging gathering restrictions. Calvary Chapel challenged state restrictions on religious gatherings that limited religious services to 50 people, while allowing casinos, gyms, bowling alleys, and similar businesses to operate at 50% building capacity. In the case of Calvary Chapel, 50% of building capacity would nearly double their gatherings – allowing up to 90 people. Similarly, the governor of Nevada not only allowed, but encouraged and participated in, protests that violate the state’s stay-at-home orders.
The Chief Justice again sided with Justices Ginsburg, Breyer, Sotomayor, and Kagan to allow the government to restrict religious gatherings to a greater extent than secular businesses. In South Bay, Chief Justice Roberts wrote in concurrence that “similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” This reasoning presumably led the Chief Justice to apply a more lenient Smith standard than strict scrutiny required under Lukumi. Here, there is no doubt that people are in close proximity for extended periods of time at casinos, bowling alleys, and other businesses; there is little, if any, doubt that the Lukumi standard should apply, but the Chief Justice does not explain his vote in this case.
In connection with South Bay, we wrote that Chief Justice Roberts simply accepted asserted differences without requiring the state to prove materiality. Once again, the Court allows the state to draw distinctions without requiring the state to show that the distinctions make a difference with respect to its public health goals. Here, as Justice Alito notes in dissent, the state “did not even try to argue that the directive can withstand strict scrutiny.” Slip op. at 9. It seems likely now that, at least to the extent that these cases come before the Court in a posture for emergency injunctive relief, the Chief Justice and, therefore, the Court, will simply credit whatever fig leaf of justification that the states provide.
Case of Interest – Protesters v. Priests – 6/26 Update – Victory!
Religious liberty advocates should keep a close eye on Soos v. Cuomo in the Northern District of New York. Catholic priests and Orthodox Jews have sued the state of New York for its restrictions to 10-person gatherings throughout much of the state. The State of New York has allowed massive protests without attempting to enforce New York’s stay-at-home orders. Government officials have acknowledged that protesters will receive preferential treatment to religious congregants. In its briefing, New York does not acknowledge any preferential treatment for protesters, instead comparing religious congregations to businesses that have no more than bare due process protections.
On June 26, the district court issued a Memorandum Decision and Order in which it granted plaintiffs’ preliminary injunction, noting that businesses where people congregate, such as restaurants, are allowed to open at 50% capacity, but religious gatherings were limited to 25% capacity. The court also noted that Governor Cuomo and Mayor De Blasio actively encouraged and supported protests while discouraging religious gatherings, finding that “Governor Cuomo and Mayor de Blasio could have just as easily discouraged protests, short of condemning their message, in the name of public health and exercised discretion to suspend enforcement for public safety reasons instead of encouraging what they knew was a flagrant disregard of the outdoor limits and social distancing rules. They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment.”
These factors, along with exemptions such as graduations, spurred the court to find that there are individualized exceptions to the stay-at-home orders and to invoke the strict scrutiny standard set forth in Church of Lukumi. The court held that New York had not even attempted to justify its actions in a way that would satisfy strict scrutiny and, therefore, issued a preliminary injunction against enforcing the stay-at-home orders against religious congregations in any form stricter than the Phase 2 industries.
5/30 Update: The Supreme Court Weighs In
In a rare late-night decision, the Supreme Court denied 5-4 a request for injunctive relief from South Bay Pentecostal Church. South Bay Pentecostal Church v. Newsom , No. 19A1044, 590 U.S. ____ (2020). While the Court did not issue a majority opinion in support of the denial, Chief Justice Roberts wrote an opinion concurring in the denial of the application, finding that California’s restriction of in-person worship services to the lesser of 25% of building capacity or 100 attendees “appear[s] consistent with the Free Exercise Clause of the First Amendment.” Consistent with our previous observations that courts are deferential to declarations of emergency, both the Chief Justice’s concurrence and the dissent recognized the need for governments to be able to respond to public health emergencies. The Chief Justice in particular gave great deference to the state’s declaration of emergency, noting that in such instances the government “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence and expertise to assess public health and is not accountable to the people.”
Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the application. Justice Kavanaugh wrote a dissent, joined by Justices Thomas and Gorsuch. Those justices acknowledged that “California undoubtedly has a compelling interest in combating the spread of COVID-19 and protecting the health of its citizens.” The dissenting justices, however, would hold that California has not put forward a compelling justification for applying different restrictions to churches than to secular businesses.
Illinois churches also had applied to the Supreme Court for emergency injunctive relief from the Illinois governor’s order placing limitations on religious congregations’ gatherings, but while the case was before the Court, the Illinois governor removed all restrictions on religious gatherings. Noting the state’s “new guidance,” the Court denied the churches’ application for injunctive relief but specified that the churches could file a new motion “if circumstances warrant.” Elim Romanian Church v. Pritzker, 590 U.S. ____ (2020).
Notably, both California and Illinois significantly loosened their restrictions on religious congregations’ gatherings after the churches sought relief in the Supreme Court. Illinois entirely removed its previous restrictions, while California expanded the number of people allowed to gather at the same time for worship. This means that even with the Supreme Court’s denial, religious bodies in those states are more free to meet than prior to when the respective challenges were filed.
What Does It Mean For Church Reopening Cases Going Forward?
With no majority opinion, the Court’s denial of the application does not bind any lower court. Even as persuasive authority, the Chief Justice’s concurrence emphasizes that this case does not come to the Court in a normal posture, but instead is a request for emergency injunctive relief that “demands a significantly higher justification than a stay.” That alone limits the applicability of the decision to other cases in the lower courts.
Moreover, the California restrictions capped in-person religious gatherings to the lesser of 100 people or 25% capacity. Some states have more restrictive limitations on in-person meetings, which may not be justified. For example, though many states have loosened restrictions, New York continues to limit religious gatherings to 10 people, and Oregon limits in-person religious gatherings to 25 people.
A negative impact may arise from the Chief Justice’s determination, which lacked adequate explanation in our opinion, that grocery stores, banks, and other places where “people neither congregate in large groups nor remain in close proximity for extended periods” are not comparators for a Free Exercise analysis. The Chief Justice lumps laundromats into this category, which seems to indicate a lack of familiarity with how laundromats work. Similarly, California has more relaxed restrictions on factories and hair salons, which also do not fit easily within this category.
Moreover, as the dissent notes, the state has a duty to show not only that there is a difference between churches and comparators, but that the difference is related to its goals of preventing transmission of disease. As the dissent notes, even where California’s briefing draws distinctions between churches and businesses that do not face similar constraints, it does not connect those distinctions to the purpose of the restrictions. Perhaps those distinctions are meaningful, but the government should be required to connect the dots, which the Court’s action today fails to require it to do. We think that the dissent correctly noted that even in matters of public health, the government must allow religious exercise absent a compelling justification, which was not offered in this suit. We must not lose sight of history’s recurring lesson that protecting constitutional liberties in times of crisis is vital to the long-term health of our Republic.
Summary of Challenges to Church Meeting Restrictions
Christian Legal Society is monitoring the numerous legal challenges by churches and religious organizations to different states’ prohibitions on meeting. We have provided our insights here for the benefits of those congregations considering such challenges. New challenges and new orders are being filed on a near-daily basis and the landscape changes rapidly. This page will be updated regularly (last updated 10/06/2020).
* State with RFRA
** Relief granted by government concession