Free Speech

Mississippi City Bans Drive-in Church Services

That violates the Mississippi Religious Freedom Restoration Act, and probably the freedom of assembly and association.

|The Volokh Conspiracy |

The Governor of Mississippi hasn't required shutdown of in-person church services (though on its face his shelter-in-place order lack such an exception). The mayor of Greenville, however, has issued an Executive Order "that orders all church buildings closed for in person and drive in church services." Greenville has reportedly been fining people for attending a drive-in service, including where "Everyone was in their cars with the windows up listening to pastor Arthur Scott preached on the radio."

That, I think, is inconsistent with the Mississippi Religious Freedom Restoration Act, which provides that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the government "demonstrates that application of … [i]s the least restrictive means of furthering [a] compelling governmental interest." A shutdown of ordinary in-person church services may well be the least restrictive means of furthering a compelling government interest in preventing the spread of coronavirus. But a shutdown that includes drive-in services is not the "least restrictive means": Limiting the shutdown to in-person services would be a less restrictive means that would still adequately protect public health. (About 30 states have RFRA-like laws, or similar legal rules developed by state courts under the state constitutions' religious freedom provisions.)

I take it that the strongest counterargument would be, to quote the Mississippi Governor who was discouraging but not banning such services, "It's just hard to overcome our natural tendency to get out and say hello." But that doesn't seem obviously so to me—when people show up to a drive-in event precisely because it's a drive-in event, it seems to me quite natural for the people to stay in their cars. And while one can imagine the government showing the contrary, the burden would be on the government to "demonstrate[]" that.

Even in the absence of the Mississippi RFRA, I think the restriction would violate the the Assembly Clause and the right to associate. (The First Amendment speaks of "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," but the Court has read assembly/association rights as extending to action related to "political, economic, religious or cultural matters" and not just assembly and association for purposes of petitioning the Government.)

A ban on all gatherings of more than 10 people, including in their cars, may be content-neutral, but I doubt that it leaves open ample alternative channels for peaceable assembly. And even if the ban just had to be substantially related to an important government interest—the test applicable to content-neutral restrictions that do leave open ample alternative channels—I think it would still fail when applied to people gathering in their cars and being communicated to via radio (or cell phones or some such).

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  1. Fascist is as fascist does.

    Now that it is obvious the threat was overblown and what threat there was is diminishing, Democrats across the country are pushing to create as many restrictions on freedom as possible. They are well aware that while some will be forced to be unwound, many will stay.

    1. “Now that it is obvious the threat was overblown”

      Is that a Hillsdale or Liberty biology degree talking, is that something you remember from a discount homeschooling outline, is that what your backwater pastor told you, or are you just regurgitating Hannity?

      1. I know how disappointed you must be that the 2M+, then 200K+, then 100K+ US death totals are all now obviously false, Rev. Dickless.

        And yes, it’s true. This Rev. has no dick.

        1. They said things would be bad if we didn’t do the thing.

          We did the thing.

          Now things aren’t so bad.

          Clearly, the thing didn’t work.

          1. Interestingly enough, we eventually reached that exact conclusion about sacrificing firstborn children to make it rain. Those who fail to learn from history and all that.

            1. Interestingly, we are a bit less supernatural these days.

              1. I take it you meant “superstitious.” But way to (pretend to?) miss the point.

          2. Those models and projections included the thing.

            So there’s that.

            1. Nothing in the 2M+ range for US deaths.

              1. Sarcastr0 –

                Not sure why my comment linking to the original Imperial College CVID death projections model is stuck “pending moderation”, but it is easy enough to Google directly.

                That analysis, by Dr. Neil M. Ferguson, estimated 2.2M deaths in the US, 40M worldwide, and was the predicate cause of the US (and other counties) initial and ongoing ini draconian overreactions.

                It was linked to by just about every media outlet, including here at the Volokh Report. Not sure how you never heard that number being bandied about.

                1. I remember the Imperial College projections for the United States? They estimated about 2 million deaths if nothing was done; 1 million deaths if some countermeasures were taken; and 200,000 deaths if stringent countermeasures were taken. That’s a range of 10x. We’re well into the 5x range.

                  I myself thought that wasn’t a great modeling job, being a pretty nobrained plug and chug into an existing model, but it didn’t say 2M if we did the thing.

                2. That analysis, by Dr. Neil M. Ferguson, estimated 2.2M deaths in the US, 40M worldwide, and was the predicate cause of the US (and other counties) initial and ongoing ini draconian overreactions.

                  That 2.2M figure assumed not only no lockdown, but no social distancing policies of any sort.

          3. Sarcast0 — getting people to wash their damn hands worked wonders. We’ve known for nearly a couple hundred years now that dirty hands spread germs.

            1. “We’ve known for nearly a couple hundred years now that dirty hands spread germs.” That, and reusing things that should be single use. And public transportation.

          4. I sell tiger repellent. There are no tigers in my back yard, so clearly my tiger repellent works and you should buy it.

        2. Please be careful, AustinRoth. Your comments violate this blog’s civility standards — at least, that’s what Prof. Volokh’s says when censoring liberals and libertarians —and I’d hate to see you get banned.

          1. I was quoting Ghostbusters, Rev. Dickless.

          2. I was quoting Ghostbusters, so it gets a pass under fair use.

      2. As opposed to the mainstream scientific consensus that Kirkland and MC adhere to where cars with rolled up windows are hotbeds of covid transmission.

      3. Apparently theology skool [sic] doesn’t include a course in basic statistics.

  2. Wrong approach.

    We’ve seen from so many other places that the primary cause of so-called “superspreading” that we’ve seen so far comes from:
    A. Religious services; and
    B. Sports events (I am sure that large-scale music events, etc. would also fit in here, but we know of, for example, the Italian spread from a soccer match); and
    C. Cruise ships.

    As such, I highly recommend that we put people on cruise ships in order to best allow them to enjoy their religious services, and just keep those ships off-shore for a length of time.

    We can even provide them a full supply of colloidal silver, chloroquine (for their gin and tonics, because it’s all a media hoax) and streaming OANN.

    Let them enjoy a free cruise for, oh, a couple of months. With any luck, no need to worry about bringing them back to shore.

    1. Charming.

      1. I lost my desire to charm people long before I saw the images of workers digging up mass Trumpdumps* in New York.

        But that pretty much sealed the deal.

        *Hooverville= shantytown, Trumpdump= grave.

        1. Its the same Potters Field they have buried homeless people for well over a century. There are a million people buried there including Spanish Flu victims.

          NYC with 2-3% of US population has 20% of the US cases and 30% of the US deaths. So blame the mayor and governor, you ghoul.

          1. Start with fat-ass DeBlasio. He had the immediate power to declare a police enforced swquestration

            1. Didn’t you call Maine fascist like 3 minutes before this for a much less restrictive order?

              1. NY is a whole different ballgame from practically the rest of the country.

                1. Your exceptions seem sorta convenient.

                  1. New York has what? Like 1/3 of all the deaths in the entire country? I think its reasonable to suggest that maybe it and the boonies would be served best by policies tailored for different situations.

                    1. You’re not supposed to start doing social distancing after the deaths are spiking.

          2. For some strange reason morons like loki believe New York’s failures are all on President Trump, but the successes in other states are all on the governors.

            Their reasoning is as gerrymandered as their local congressional district.

            1. I, for one, thing that there’s enough blame to go around. Cuomo acted late, Trump acted later and continues to be a clown. And then there is the agency screwup. And China hiding it.

              None absolves the others.

        2. You mean the graves in the city cemetary on Hart Island? The one where they’ve been using convict labor to dig mass graves for the city’s indigent since 1869?

          The only thing that’s changed recently at Hart Island is that the COVID crisis led the city leadership to hire a company to dig the graves rather than continue to have prisoners do it.

          But sure, blame Trump. Because everyone knows his evil goes so far back in time that he’s responsible for things that started in 1869.

          1. “ But sure, blame Trump.”

            Okay! Will do boss!

            You, on the other ha d, make sure you thank him every time an emergency worker gets booked into a TrumpDump.

          2. The population of churchgoers is disproportionately black. And black people are disproportionately likely to be affected by the virus for a variety of reasons.

            So basically Loki wants a bunch of black people to die.

            1. Boom!

              I always wondered if 12” was a Kard Karrying Klub member.

              Now I know.

              Anyone who immediately goes for that? All the way, buddy.

              What? You can “But Byrd” this one, can you? Isn’t there a rally or a cross burining you should be at?

    2. Did these random people attending drive in services kick your cat or do anything in particular to you that justifies your seething hatred and wish to see them die?

    3. Are you bright enough to notice the “windows rolled up” part?

      Virus going through solid glass?!?

    4. Loki: You’re willing to work as the crew on those cruise ships, right?

  3. What about the free exercise clause (as applied through the 14th Am)? A law that applies only to “church buildings” is not a law of general applicability.

    1. Jett’s Pop: I appreciate that, but I think that on balance — combining the Governor’s order, the Governor’s exemption of churches, and the Greenville mayer’s order — it looks like the mayor is treating church services (drive-in or otherwise) much the same as Mississippi is treating, say, movie showing (drive-in or otherwise).

      1. The Supreme court to the contrary, that IS a problem, because only one of them is explicitly protected by the Constitution, and it’s not drive in movies.

        1. “The Supreme Court to the contrary” would be printed on Brett’s business cards if he were a lawyer.

  4. Anyone know how quickly cabin air turns over in an old automobile? I don’t know. I’m asking, because I can often tell a passenger in my car when I can smell someone smoking in a car 200 feet in front of me, on the interstate. Makes me wonder about the safety of people sitting in crowds of cars waiting in line for mobile virus testing. You have to figure those folks are more likely than average to have some virus riding around with them.

    1. It doesn’t matter because the air in your car is filtered. And even though your car’s air filter is probably not HEPA-rated, it’s more than sufficient to stop the large water droplets from your (or your neighbor’s) inadvertent coughs and sneezes.

      But even if you’re attending services with your windows rolled all the way down, cars don’t generally park right next to each other. The drivers of any two cars are naturally more than 6 feet apart. Even the driver and the next car’s passenger are well apart when parked (unless you’re in New York or some other high-density urban area where the parking spaces are so small that you almost have to climb out the back hatch to get out of your car).

    2. Depends if the car is running or not. Parked with the blower off, it’s essentially sealed.

    3. I can often tell a passenger in my car when I can smell someone smoking in a car 200 feet in front of me, on the interstate.

      I’m sure you believe that.

  5. I guess Eugene doesn’t think Zoom services are a passable alternative? That being said, my first reaction was the ban on drive-in services goes too far.

  6. SO, along with the medical bans, we HAVE come to the point that if a right/freedom is not SPECIFICALLY listed, it doesn’t exist?

    We have come again, to ta place in the course of human events …

      1. Was that a bomb-sniffing anteater?!?!?!

        LOL

        1. Pollution-sniffing, but yes, Aardvark.
          And the ultimate irony is that this was one of the cars that VW got caught cheating on the emissions test with.

          1. Now THAT is rich — and expected

    1. People on this blog been calling for revolution for a decade buddy, don’t try and be edgy with that trick.

  7. This makes me furious. The heathens in charge deemed it a necessity to allow people curbside access to liquor, but wanting to observe your religion in a manner that follows safety guidelines is a crime.
    The mayor responsible for this arbitrary ban is a big Biden supporter, and he sounds about as demented as Joe….

    1. Unironic use of heathens.

      Social distancing is easier at retail establishments than it is at churches. Clearly, a conspiracy by the Biden Atheist Cabal.

      1. The religious worshipers are inside their cars, cars are spaced at least 6 feeg apart.
        How are people in their cars more vulnerable to breathing in contaminated air than people milling about inside shopping areas, all potentially breathing in suspended contaminated air pockets?
        What would you call this ban if it isn’t a show of disrespect for people’s right to observe their religion?

        1. They should be killing baby’s in those cars — THAT he’d support.

        2. Ah. I see the issue. I think this is a fine policy, badly implemented. You think the bad implementation is proof the policy is heathen. I disagree.

          1. If he’s not a heathen, he’s at least behaving like one.
            He allows people to be in their cars at a drive-in restaurant, but they can’t be in their cars to hear church service.
            I hope the congregants successfully sue this mayor. He really has it coming.

  8. I am just a layperson, but I think it is going to be extremely difficult to write a law that will ban this kind of religions activity that will pass muster.

    If as in this law you make your law just apply to religious activity then that law will not be “generally applicable”.

    But if you make your law generally applicable, then you you risk banning grocery stores, unless you write an “essential” exception. But if you write an essential exception, religious people will claim that their spiritual well being is essential. They will quote “But He answered and said, “It is written, ‘Man shall not live by bread alone, but by every word that proceeds from the mouth of God.’ ” Thier interpretation will be that their religious activity is more important than even life and death mundane regular activities, such as acquiring food. Under U.S. v. Ballard, the courts can not disagree, or even think about this assertion. So how is the government going to show that the religious services are not essential? They can not even question the sincerity of the religious people.

    Can anyone think a a method of navigating this mine field to an enforceable law?

    I, myself, would not participate in this kind of service, but I can see no solution.

    1. The Congregation Of Exalted Reason eagerly awaits arguments and rulings providing the same level of privilege to its sacraments that have been advocated and adopted with respect to other religious claims. The abortion-related claims in the Fifth Circuit, for example, should be divine.

  9. If you consider each vehicle as a separate container there is no violation of the order limiting gatherings. How is this any different from people living in apartment buildings?
    It’s time for government to stop telling us what we can’t do, and start telling us how to conduct business and social gatherings safely. It’s time for government to stop telling business they are unessential, realize all businesses are essential as they provide jobs and careers that allow people to live. Government has to start telling business how they can safely operate. It’s time for government to start working for the people, not against us.

  10. And now that we’ve seen a federal judge in Louisville deems at least the ‘drive in’ portion as “targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs—including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly—including, again, the parking lots of liquor stores.”

    While I get the ban on the literal in person gatherings, if the ban isn’t neutral it’s not going to pass the required tests. I’d challenge the drive in portion of this mandate and watch it struck down rather quickly.

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