These Churches Refuse To Close Over COVID-19. Does the Constitution Protect Their Right To Remain Open?

Religious liberty, public health, and the police powers of the states


State governments have responded to the COVID-19 pandemic by ordering residents to avoid gathering together in large groups, including gatherings held for the purpose of religious worship. Some churches are reportedly refusing to comply with such edicts and holding in-person religious services anyway. As the Associated Press reports:

Rodney Howard-Browne, a Florida-based charismatic Christian pastor who prayed over Trump in the Oval Office in 2017, vowed not to stop services and encouraged worshipers to shake hands despite experts identifying that behavior as an easy way to spread the virus.

In Louisiana, pastor Tony Spell was warned by police Tuesday after holding a service that attracted hundreds and flouted a state ban on mass gatherings. Spell, who has claimed that his services also heal cancer and HIV, said that he would not permit "any dictator law" to stop worship.

Does the Constitution's guarantee of religious liberty protect the right of such churches to keep their doors open during a pandemic?

The First Amendment protects "the free exercise" of religion and "the right of the people peaceably to assemble." These are bedrock constitutional principles, deeply enshrined in American law and repeatedly affirmed by the U.S. Supreme Court. But the Supreme Court has also said that religious liberty does not trump all forms of government regulation, even when the regulation clearly impacts a specific religious practice.

In Employment Division v. Smith (1990), Justice Antonin Scalia led the Court in upholding Oregon's power to deny public benefits to two individuals who broke the state's drug laws when they used peyote for sacramental purposes as part of a Native American Church ceremony. "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate," Scalia wrote. In other words, it would be one thing if the state specifically banned the use of peyote for religious purposes. But here the state banned its use for all purposes and thus placed no particular burden on religious users. A "generally applicable" law of that sort, Scalia argued, does not qualify as an unconstitutional infringement on religious liberty.

Here's what that means in the present context: The traditional police powers of the states include the power to combat the spread of infectious diseases via quarantines and related health measures (though these powers are not unlimited). Bans on large gatherings to prevent the spread of COVID-19 would likely fit that bill, at least in the short term. They would also likely fit the bill of "general applicability" as spelled out by Justice Scalia. Such bans apply to society at large and do not single out religious gatherings for closure. They would therefore likely pass muster under Employment Division v. Smith.

Related: "Police Powers During a Pandemic, Constitutional, but Not Unlimited."

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  1. No. And make them pay corporate taxes, too.

    1. Aren’t they all non-profits that, by definition, make no profits on which to pay taxes?

      1. No.

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      2. Yes, but that fucks-up proggy narratives, so shhhh…

        It’s all based on jealousy really. White progressive ideology has a sacral and religious function to its acolytes, so any other faith is heresy and should be punished.

        1. What’s the narrative here? That mega churches with millionaire pastors don’t exist? Or that churches aren’t frequently just a lucrative endeavor to separate the gullible from their money, and tax free!

          Scientology comes to mind as a great example of what bullshit a nonprofit status can be.

          1. Certainly no other non-profit exists in such a state, only churches.

          2. And how many parents have you counseled after they lost their young daughter to cancer?

      3. Yes or at least they’re defined as a charitable non-profit (among others including non-religious ones) which we’ve chosen not to tax because we’ve decided it would be counterproductive to tax charities. Which makes sense.

        Except to crazy people.

        1. All that charity, like organized pedophile rings and pastors flying their own learjets.

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      4. NRA is a nonprofit too. Doesn’t stop Wayne LaPierre from taking home over $2 mil a year. Plenty of ways to make money without paying a dividend.

        1. What’s Planned Parenthood’s non-profit status? Does the IRS have a “Lamborghini non-profit” category?

          1. PSst, you just lease the Lambo, no prob

      5. That is not the definition of non-profit! A non-profit is an organization that exists for a charitable purpose.

        There are other organizations, called not-for-profits, that exist to benefit their owners; some research institutes are organized that way.

        Moreover, not all taxes are taxes on profits. Property taxes are the most prominent example.

    2. Here the point is not about constitutional right protection. People should have awareness about the things to do and not to do in COVID 19 situation.

  2. I dunno why you’re harping on the religious angle of it, the peaceable assembly part is what matters here. I must’ve missed the “except when people get sick” part of 1A.

    The government can close public places to peaceable assembly, they have no business closing private establishments, religious or not.

    1. agreed. Not really happy with all the power the government’s trying to claim right now.

      Although, if you’re the sort of person who believes in these charlatans like Tony Spell who claim they have magic powers or that only they know when Revelations is coming, so sell all your things and give your money to him, I’m not gonna feel too bad when you get virus’d out of the gene pool. I’m not anti-religous, just anti-cult.

      1. Yeah, I mean fuck that guy, but he has rights too. If people want to show up to get conned by him that’s their prerogative.

    2. ^^^+1^^^

    3. It’s a “time, manner and place” restriction. They can’t ban all meetings indefinitely, but they can restrict meetings of more than ten people for a limited period (like, say, 14 days) if it meets a compelling government interest (in this case, limiting the spread of disease).

      1. “Compelling government interest” also doesn’t show up anywhere in 1A.

        I get that it’s a legal precedent, but it’s a bullshit one established by cowardly judges. If the government doesn’t like what 1A says they can go through the amendment process.

        1. To further address this point: “They can’t ban all meetings indefinitely, but they can restrict meetings of more than ten people for a limited period (like, say, 14 days) if it meets a compelling government interest”

          Where are those lines drawn? If they can restrict meetings of more than 10, can they restrict meetings more than 5? 2? 1?

          If people are still getting sick 6 months from now is their edict from on high still valid?

          They do not have this authority in the first place, full stop. They do have men with guns so in practice they have the authority, there’s no basis for it in the Constitution however.

          1. 10 sounds suspiciously rounded, and arbitrary. Had the number been based on some numerical modeling, it more likely would have arrive at some messy number not divisible by the number of digits on our hands.
            Given the presidents son in law’s influence, what are the odds that the recommendation would have been less than a minyan.

        2. Not sure your point.

          Libel and perjury, among other things, also aren’t mentioned in the 1A but are understood as exceptions because they aren’t mere speech, but cases of actions that cause direct harm.

          The right to peacefully assemble is Constitutionally based on the same kind of premises as the right to free speech — that under most circumstances, its none of the governments business whether people freely assemble — because its part of what it means to have a free society — but in some cases there might be legitimate safety interests.

          Its not that complicated. I mean people can argue about the boundaries of gov’t power, but just because something isn’t mentioned as an exception in the 1A doesn’t mean it isn’t an exception. I would have used the “yelling fire” analogy but people are starting to controversialize that and there are plenty of real world laws that everyone agrees are OK and an exception, and plenty of laws that everyone agrees the framers thought were OK and an exception.

          1. I would argue all those restrictions are unconstitutional. Don’t like somebody libeling you? Use free speech to counteract it. Don’t use the power of government, because then they get to decide, not you.

        3. So if it’s my religion to kill and eat people, it would require a Constitutional amendment to convict me of anything?

          We have courts for a reason: to make it possible to write laws of finite length, yet apply them to the infinite possibilities of human experience.

      2. “Time, manner, and place” restrictions are also unconstitutional. It’s just a way for courts to fail to do their job and protect the people’s rights which is clearly spelled out.

        There is no ‘except for “Time, manner, and place” restrictions’ in the First Amendment.

    4. Yeah Damon’s knee jerk deference to police powers doesn’t strike me as very libertarian. And Scalia was dead wrong in the peyote case.

    5. Bingo. Any order like this is unconstitutional. If these people get sick because of it, that’s their own choice.

      1. The problem is they will also make other people sick. If I catch the virus from someone who contracted it at the church, can I use the pastor for damages?

    6. Peaceable can be interpreted to include not killing others by viral contagion just as readily as not killing through armed violence.
      A church sending out large numbers of infected into the community is an assault on that community. Why do you think Israel was so quick to close borders; suicide bombers now don’t have to wear those heavy and uncomfortable vests of high explosives, but only need to get infected then walk around in crowded places and ride the busses.

  3. In practice, if things go on as they’re going, then even if this were governed by RFRA standards, I imagine the courts would say there’s a compelling interest in closing these churches which can’t be met in any other way.

    These judges are subject to the same anxieties as the public, plus they’re often at the at-risk age themselves.

    So whatever the formal rule the courts apply, the health authorities would probably win and the churches lose.

  4. Based on ‘common sense gun control’, asset forfeiture, strip searches at public and private businesses, and DUI checkpoints, no.
    Nothing is protected by the constitution.

    1. You omitted child pornography, sale of adulterated milk, and securities fraud.


      1. Wow, you’re upset about strictures on kiddie porn? You and Buttplug really are progressives.

      2. Arthritic fingers; I cannot list all the failures of the government.

        1. You should have just listed what government excels at, killing people.

      3. So asset forfeiture is comparable to child pornography? Do you even read what you’ve written before you click submit?

      4. I’m confused about ‘adulterated’ milk. Is that the stuff that has added vitamin D and has been heat treated? Or is ‘adulterated’ the milk that has no additives and no processing.

  5. Even if you accept the dubious claim of “police powers” for short term action, why, in a democratic society, would we vest these powers in the executive? It seems what we need is rational, public debate with accountability to the people. Not that we’ll necessarily get rational debate with Congress or assemblymen, but at least regulating commerce is one of their enumerated powers and the process is more transparent and open to the public at large.

    1. Time may be of the essence. Further, the executive is that, the executive – the one who has to do the act.

      1. There has been ample time for state legislatures in CA, IL, NY and the rest of the bright blues to enact legislation if these are in fact legitimate police powers of the state. They would have to debate the matter, answer to their constituents and defend their actions in court. In the current circumstance authoritarian executives are depriving millions of their livelihood, forcibly closing private businesses, forcibly forcing private parties to violate contracts, depriving millions of freedom of movement, depriving millions of freedom of association and many more straightforward deprivations of liberty. There isn’t even a pretense of due process.

        1. And where will be the recourse? What is the likelihood these abusers will be taken to task by the courts or the voters?

  6. >>In other words, it would be one thing if the state specifically banned the use of peyote for religious purposes. But here the state banned its use for all purposes and thus placed no particular burden on religious users.

    yeah but that was a dumb decision.

  7. Maybe these pastors should better spend their time contemplating why all the millions and millions of prayers to God are going unanswered?

    1. The Congregation Of Exalted Reason has, if not is, the answer.

    2. Read the old testament and tell me God gives a single flying fuck about the flu.

    3. why all the millions and millions of prayers to God are going unanswered

      Oh? Like what?

      1. Or why all the trillions of prayers *are* being answered.

      2. “God, if you exist, please impeach Trump so we can avert this Nazi climate change handmaid’s tale dystopia forever and ever amen.”

    4. Sometimes the answer is “no”.

      1. And why would a compassionate God say “no” to prayers to end the Chinavirus pandemic?

    5. Maybe he has.

    6. I’m not sure all how well these individual pastors have thought the subject through, but as for “spending time complicating it”, thousands of pages of commentary have been written on prayer over the course of thousands of years, so yes there has been thought given to it.

      The act of prayer is about a recognition at an emotional, moral, and spiritual level that you don’t have control over everything, finding peace in that fact, and only focusing on trying to control the things you do have control over (ie having a spiritual mindset and being a moral person), with the belief that doing this will lead you to a better result than trying to do the opposite.

      This is why control freaks who attach themselves to causes like gun control recoil at the “thoughts and prayers” message — because they believe the government can control everything. And why, on the other hand, many behavior health depts will recommend prayer for those who grew up with those traditions, along with other spiritual traditions like yoga.

      In Jewish tradition, not only the prayers of priests are considered to be heard more, because they’re spiritual leaders of the community, but prayers by everyone are also considered to be heard more in the time between Rosh Hashana and New Years when “the gates of heaven are open” and everyone is giving atonement for their sins and doing genuine repentance (teshuva), supposing that they are genuinely repentant.

      And every bad thing that happens in life is considered to happen for a good reason, and things that we consider bad often turn out to be good in their own way. So praying shouldn’t mean we can’t always expect bad things never happen. The way prayers are answered are not necessarily in the way we want. Things that we consider ‘bad’ are actually a normal part of the cycle of life. People are born, they die. We consider death a bad thing because we die. Summer comes, then winter comes. We consider winter a bad thing because crops die. Day comes, then night. We consider night a bad thing because we stop activity. Not only can’t we make these things go away with prayer, we shouldn’t want to, and it would reflect foolishness.

      Etc. etc. I’m sure Maimonides and St. Augustine wrote plenty about this, if you’re really interested in learning theology.

    7. God is a practical joker. If you don’t laugh She will just keep doing stuff until you do.

  8. The government also has no enumerated power to close businesses, especially when its over a cough due to cold.

    Hysteria does not give the government additional powers.

    1. Thank you for the legal insights from the disregarded, disaffected fringe.

      1. What a shame you are not a real reverend. People could use a good chaplain in trying times.

      2. Leftist supports dictatorial rule. Why am I not surprised?

    2. This ^^.

    3. You must have missed the viral exception clause.

  9. Trump Resists Pressure to Force Companies to Make Coronavirus Supplies

    The Defense Protection Act gives presidents extraordinary powers to make supplies like masks. But some of Mr. Trump’s advisers suggest they are adhering to longstanding conservative opposition to big government.

    I’m just waiting to see copies of the lawsuit that all Blue states and the House filed against Trump for using Congressionally enacted powers for the Executive to use in its discretion.

    Maybe unreason will post some copies.

    1. If they want companies to produce more supplies, then allow the market to price that in. But they won’t, they’ll call it price gouging.

      1. If the government put in a standing order for surgical masks at 2x or even 3x the normal market price, they’ll get significantly more supply of them. But they won’t, because they’d rather just use force.

        1. These are stupid comments by people that know nothing about manufacturing.

          First, most low dollar items, like masks come from, wait for it, China
          So there are few manufacturing setups for such things here
          No mask making machines
          So first you must build mask making machines
          Which takes months
          So it is not happening

          Manufacturers rarely price gouge, it is resellers and other jerk offs who buy from manufacturers and mark it up
          A manufacturer just wants to make their parts and sell them.
          But they are usually smart enough that their process is defined, their machines are busy and labor is a small fraction of cost.
          In other words, they are making as many as they can,now,and no matter what you pay them, they cannot increase, significantly, their output

          1. AND why are they all in China?????

            Could it possibly be because it’s CHEAPER (by law) to manufacture there because of subsidized shipping costs, tax-less ledgers, and U.S. standard exemptions all brought to us by the Free-Trade initiative of the Clinton Administration???

            China gets to send us a package for $0.10. We pay $30 to ship the same package to China and $5 the house next door. (Ya; It’s been subsidized THAT bad.) Even a 25% Tariff hardly puts a dent in the subsidy check (treaty deal).

            Lets not pretend the current state is a static economy. When prices make it logical the U.S. will start manufacturing again. When prices (of supply & demand) DEMANDS a manufacturer ADD more “process/machines” that is EXACTLY what they will do.

            1. …. and the Nazi (National Socialists) counterargument… [WE] own ALL those machines the “greedy”, “evil”, “price-gouging”, investors bought because they should be forced to LOOSE their machines because they’re making money off of supplying sick people with what they need at the price that made the existence of those machine viable enough to build and implement.

            2. Assuming your facts are correct, economic rules say any false market signals (taxes/subsidies) introduce inefficiencies which harm China. I’m good with that.

              1. You can harm me any-day – by buying me a new car 🙂

  10. Historically , during times of crisis , many turned to their faith and religious leaders for comfort and hope. I guess the government wants the monopoly on that too.

    1. LOCALLY (<keyword) I'd like to think they should just pass legislation requiring entry-testing of gathering over 100-people.

  11. Does the Constitution’s guarantee of religious liberty protect the right of such churches to keep their doors open during a pandemic?


    As does the right to peaceably assemble.


    1. Exactly.

    2. WRONG — As Scalia makes clearer. The Bill of Rights are NOT entitlements.

  12. Scalia was wrong … freedom of religion (and others) are above the states powers to interfere with the free exercise. And as the only reason for the state is to secure the rights and liberties of the people, government can ONLY interference when it is protecting said rights, not some nebulous government “interest.”

    1. Scalia was U.S. Federal “Supreme Court”. He is right in that the Bill of Rights are not entitlements but restraints on “federal” law.

  13. Don’t be stupid. Irrational mob fear always over-rules any silly things like the Constitution. Just ask any Japanese who where around in 1942.

  14. When it comes to any government, Constitution or not, they will always find a way to do what they want.

  15. These Christian churches are violating their own Bible by not following the rules and laws of the government. Romans 13:1-7 commands Christians to obey and to live in fear of the powers that be. Anyone who does not do that, like America’s Founders and everyone who supported the American Revolution, are damned by God, according to this religious nonsense.

    Perhaps the churches and religions can be closed by using truth in advertising laws. In the case of the Christians, their Bible claims they can get anything they ask for in prayer in Jesus’ name. If they can’t demonstrate the truthfulness of this claim, which none of them can, they are violating truth in advertising principles.

    May Reason Prevail! Bob Johnson

    1. A lot of dumb arguments have been made in the name of reason.

  16. A homeowner in NJ was arrested for holding an in home wedding with more than 50 guests. Local governments are apparently encouraging citizens to report these dangerous criminals, taking a break from their way of punishing citizens who report illegal alien to ICE.

    I assume no gun sale policy in some towns went into effect? The government is well on its way to displaying unprecedented power in the name of public safety.

    1. That’s what I see as well. This is appearing more and more like a government takeover.

  17. As I recall religious response to epidemic …

    Salem, Massachusetts, 1692-3. Trials were hosted to determine who, among a lengthy list of Accused, had caused or brought the plague down upon their neighbors. Public executions of various fitness were given as punishment.

    There was no apparent quarantine, but sentences to death were a form of it.

    Obviously there was no use of government authority to postpone church services.

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  23. I think an interesting question here is these can your employer disciple you for attending services. Can your employer require you to stay away from the job and self quarantine if you attend a large service? Can a nursing home or hospital say that their employees can not come to work if they have attended a large church service? What about a grocery or big box store?

    1. That’s what the foundation of this country rests upon.

      If you own it you have complete dictation powers of who visits it and does what within the constraints of LAWFUL. The concept of ownership has been widely thwarted by the [WE] mob-rule foundation in the last 50yrs though.

      Scalia ruled right in line with this by intrinsically stating The Bill of Rights are not entitlements to break the law but rather restrictions on federal law being created. Seems to be a popular misconception about the Bill of Rights in modern society.

      1. Guess a better way to word that is; The U.S. Constitution isn’t the law for the people. It is the written-law for our U.S. Government and by hierarchy model will assure some basic Natural Human Rights.

        The U.S. Government doesn’t “give/grant” natural rights but it must be stopped (by the U.S. Constitution) from trying to take them away. That is the very difference between a Republic and a [WE] mob/gang-rule society (Democracy). The must be a “supreme law” above and beyond the [WE] mob-rule to insure minority freedoms/rights.

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  26. How is it possible that they are assessing the closing of the churches? They must close them. Look at other countries:

    “The Church in Spain is mobilizing in the face of the health emergency and the social consequences of the Covid-19 pandemic and is mobilizing all its resources to offer service, accompaniment, help and prayer to all those affected and to all of society, in order to serve the common good.

    These more than 300 initiatives of the Church in the dioceses address pastoral, spiritual, social, assistance, educational and entertainment needs caused by the confinement. In addition, at the end of the document, there are links to other Church institutions. ”

    Translated with (free version)

  27. For a publication called “Reason” you’ve made a MAJOR error in your reasoning! The question you posed was this: “Does the Constitution Protect Their [a church’s] Right To Remain Open?”
    The rest of your article went on to discuss what the Supreme Court has said. This is like saying, Does the Constitution protect individual freedoms and citing FDR’s internment of Japanese Americans as evidence the Constitution does not. No where do you examine what the Constitution says. Surely, it wasn’t your intent to claim that the Supreme Court is infallible in following the Constitution?

    1. I’d have gone a different direction. Instead of focusing on peyote, I’d have compared the current cases to if the constitution allows a Church to kill.

      Fact is, as a result of this refusal to shelter in place, people will die who otherwise would not have. Therefore, the each individual within these congregations are guilty of “Involuntary Manslaughter”.

      A person is guilty Involuntary Manslaughter when a person dies as a result of the commissioning of a misdemeanor. The penalty for this is between 1 and 6 years. This would be in addition to the penalty of the misdemeanor itself, which in most cases is a fine of $5,000 and/or one year in jail, so each person in a congregation could be facing up to 7 years in jail for what they are doing.

      Now, a felony involves a sentence of more than a year. If a state decided to upgrade violations to a felony, and Churches still ignored the order, it would be Felony Murder. This could result in life imprisonment for the entire congregation. This may seem extreme, but people are currently serving life imprisonment for less than the consequences of willfully spreading an infection that will absolutely kill someone in your community.

      As far as the constitution goes, this is all it says:

      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

      So in general people argue that as long as the law does not explicitly target the free exercise of a religion it’s not a constitutional matter. That’s why a Church can’t say, “I want to be able to make human sacrifices” because the legal prohibition on murder does not target a church specifically.

  28. I don’t think they peyote is the best example because there are still those who believe in the individual freedom to do with one’s bodies as they see fit. Unfortunately, it’s not that simple in a pandemic. If it was just the Church congregations putting themselves at risk I’d be of the opinion that they should be allowed to do as they please, but it’s not about them.

    Of those infected: 20% have no symptoms and never will. 60% have mild symptoms that may start out as no symptoms. 20% have serious symptoms. This means that a person has a high chance of being infectious without even realizing it, and all it will take is for a single member of a congregation to be sick to infect everyone else who will in turn infect their families and so on.

    The mortality rate for COVID-19 is, globally, said to be around 2% but that isn’t quite accurate. A given country can have a mortality rate lower than 1% or higher than 4% depending on how overworked the hospitals are.

    While I think it’s overkill to tell people to avoid any physical interactions with people in their own homes, social isolation is about slowing the spread of infection such that hospitals can keep up with new cases. Fact is, everyone is going to catch this eventually, but if there are 500+ new cases in a single town all at once because of a Church meeting that town will see it’s mortality rate spike and so people will die who otherwise would not have because the hospital resources will be spread too thin.

    In short, attending a Church service is less analogous to peyote and more analogous to murder. By choosing to ignore this order people are not only risking their own lives, but risking the lives of others in their own communities. The government absolutely has the authority to step in when a church is killing people.

    Refusing to follow this order is not (yet) a felony. It is a misdemeanor. If someone dies as a result of a misdemeanor that’s called “Involuntary Manslaughter” so if you violate this order, and as a result it gets someone killed either because you personally infected them or because your group strained hospital resources such that people die you are guilty of Involuntary Manslaughter and can be held accountable.

    My question though would be, what would the government do about it? I mean, throwing them all in jail would be worse. By all indications we have, COVID-19 is spreading through federal prisons faster than in the general community, which is precisely why in many areas police are releasing low threat individuals from prisons to minimize the spread of infection. This implies that, at least presently, the police have no real ability to act against those who fail to follow this order. However, later on, when prisons are functional, I truly hope that these congregations are held legally accountable for the lives they take.

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