Even in a Pandemic, 'Constitutional Rights Still Exist'

A federal judge defended religious freedom by blocking a misguided ban on drive-in Easter services.


The celebration of Easter last weekend was conspicuously constrained by government policies aimed at limiting the spread of COVID-19, which affected travel, family gatherings, and church services throughout the country. But in an encouraging sign that the Constitution still means something in these extraordinary times, one of those policies was defeated by the First Amendment's guarantee of religious freedom.

On Saturday, a federal judge issued a temporary restraining order against Louisville, Kentucky, Mayor Greg Fischer, who had unilaterally banned drive-in Easter services, even when they complied with social distancing rules. "On Holy Thursday, an American mayor criminalized the communal celebration of Easter," U.S. District Judge Justin Walker wrote. "The Mayor's decision is stunning. And it is, 'beyond all reason,' unconstitutional."

Walker's decision allowed On Fire Christian Center to proceed with its plan for an Easter service in the church's parking lot. The plan, as described by Walker, required congregants to remain in their cars, parked at least six feet apart "with windows no more than half open for the entirety of the service," led by a pastor standing outside "at a distance from the cars."

Those precautions should have been enough to address legitimate concerns about virus transmission. But they did not satisfy Fischer, who last Friday decreed that drive-in services would not be allowed and said Louisville police would enforce his ban by recording the license plate numbers of violators and reporting them to the city's public health department.

As it happens, this week marks the 30th anniversary of a decision in which the Supreme Court said the First Amendment does not relieve Americans of the duty to obey a "neutral, generally applicable law" that prohibits religiously motivated conduct. That case involved the Native American Church's ritual use of peyote, which the Court said Oregon could constitutionally ban under a general law prohibiting drug possession.

But as the Court made clear three years later, when it overturned a ban on ritual animal sacrifice that Hialeah, Florida, enacted in response to the establishment of a new Santeria church, a law can be neutral and generally applicable on its face but religiously discriminatory in practice, which makes it inconsistent with the First Amendment. Fischer's ban on drive-in Easter services, which was ostensibly a disease control measure but explicitly targeted Christian churches, was neither neutral nor generally applicable.

As Walker pointed out, Louisville allows "drive-through restaurants and liquor stores," and it has not imposed any general restrictions on cars in parking lots. The disparate treatment illustrates the arbitrary distinctions drawn by many lockdown orders. "If beer is 'essential,'" Walker suggested, "so is Easter."

A policy that applies specifically to religious activities, the judge said, is subject to "the most rigorous of scrutiny." That means the policy must be "narrowly tailored" to achieve a "compelling" government interest.

Walker concluded that Fischer's edict was "not even close" to satisfying that test. It would be even harder for the ban to pass muster under Kentucky's Religious Freedom Restoration Act, which prohibits any legal restriction that "substantially burden[s]" religious freedom unless the government can show by "clear and convincing evidence" that the policy is "the least restrictive means" to further a compelling interest.

The same constitutional analysis would apply to Greenville, Mississippi, Mayor Errick Simmons' campaign against drive-in churchgoers there, who on Sunday received $500 citations. Simmons now says those fines will not be collected.

Bans on regular church services, imposed as part of broad rules against large public gatherings, present different issues, given their general applicability and the increased risk of virus transmission in such situations. But they still might be vulnerable under state laws like Kentucky's, depending on the precautions churches are prepared to take.

In the meantime, Walker's decision gives hope to those of us who worry that politicians are too quick to sacrifice civil liberties on the altar of public health. Although "the COVID-19 pandemic has upended every aspect of our lives," he declared, "constitutional rights still exist."

© Copyright 2020 by Creators Syndicate Inc.

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  1. We were long overdue for some refreshing news such as this.

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  2. All the power drunk authoritarians need to be voted out.
    That means everyone.

    1. “The Mayor’s decision is stunning. And it is, ‘beyond all reason,’ unconstitutional.”

      Notice, despite how stunningly and unreasonably unconstitutional the edict was, it didn’t stop the mayor from issuing it. And it’s not as if this is the mayor of East Armpit, Alabama – Louisville is a fairly large city that presumably attracts mayoral candidates somewhat more knowledgeable about the law than the local hardware store owner. And yet, when East Armpit elected the local hardware store owner Mayor because he seemed to be the smartest guy in town, they got somebody with enough common sense not to issue bullshit edicts just to stroke his power boner.

      1. Louisville is a fairly large city, but it’s still in Kinfucky.

  3. That religious use of peyote SCOTUS case was the original impetus behind the RFRAs throughout the country and largely bipartisan. The Left only stared to turn against them when they realized it applied to Christians, not just relatively obscure religions.

    1. “The Left only stared to turn against them when they realized it applied to Christians, not just relatively obscure religions.”

      To tell the ‘whole story’ – –
      The Left only stared to turn against them when they realized it applied to Christians, not just relatively obscure religions PRACTICED BY MINORITIES.

      1. And don’t forget the special irrational fondness most Progressives have for “indigenous peoples”. I marvel at the cognitive dissonance skills required to march in earnest protest against Christian malarkey one day, and then march in favor of some native sacred mountain bullshit the next day.

      2. Welll duh. Relatively obscure religions BY DEFINITION are only practiced by minorities.

        1. Please explain what you mean by minorities? I believe you are referring to a minority of the population as opposed to racial minorities. Because if you were referring to the latter, I think most neo-paganist and Wiccans tend to be fairlyvpale in complexion.

  4. Great! So my constitutional right to keep and bear arms still exists.
    Glad to know that.
    I have my doubts.
    Great! So my constitutional right to be free from unreasonable search still exists.
    Glad to know that.
    I have my doubts.
    Great! So my constitutional right to freely assemble still exists.
    Glad to know that.
    I have my doubts.

    1. Yeah, affirming that we have the right to engage in drive-by religious observance as if we’re picking up our McDonald’s value meal is nice and it’s a good start, but it’s nowhere near sufficient.

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