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."