The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, a per curiam Sixth Circuit panel (Sutton, McKeague, and Nalbandian) decided Maryville Baptist Church v. Beshear. (Eugene blogged about it earlier.) This decision halted the Kentucky governor's prohibition on "drive-in" church services. The Governor's policy, the court found, violates the Kentucky Religious Freedom Restoration Act and the Free Exercise Clause. I commend this opinion on several levels.
First, the decision approaches this difficult issue with the sobriety and respect it deserves. There was no hyperbolic rhetoric or accusations of bad faith. Indeed, the Court credited the Governor with the presumption of regularity:
We don't doubt the Governor's sincerity in trying to do his level best to lessen the spread of the virus or his authority to protect the Commonwealth's citizens.
The panel found that the Governor was doing his best to prevent the spread of an unprecedented epidemic.
Second, the court only decided issues that it needed to resolve. Specifically, it declined to resolve the validity of the in-person service ban:
The balance is more difficult when it comes to in-person services. Allowance for drive-in services this Sunday mitigates some harm to the congregants and the Church. In view of the fastmoving pace of this litigation and in view of the lack of additional input from the district court, whether of a fact-finding dimension or not, we are inclined not to extend the injunction to inperson services at this point. We realize that this falls short of everything the Church has asked for and much of what it wants. But that is all we are comfortable doing after the 24 hours the plaintiffs have given us with this case. In the near term, we urge the district court to prioritize resolution of the claims in view of the looming May 20 date and for the Governor and plaintiffs to consider acceptable alternatives. The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom. But it's not always easy to decide what is Caesar's and what is God's—and that's assuredly true in the context of a pandemic.
The last sentence had a subtle, but effective reference to religion.
Third, the decision provides reasoned consideration that people of all persuasions and faiths can relate to. Consider this passage:
The Governor insists at the outset that there are "no exceptions at all." Appellee Br. at 21. But that is word play. The orders allow "life-sustaining" operations and don't include worship services in that definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for "life-sustaining" businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.
The contrast between "life-sustaining" and "soul-sustaining" is poetic and persuasive. This crystal-clear prose explains with precision why the government's policy is internally inconsistent. (Though the unsigned decision is per curiam, I would bet anyone a buckeye this language came from Judge Sutton's chambers). Why can some people meet in groups with social distancing, but not others? The government must make a subjective judgment about what is "essential" and what is not. For example, the Pennsylvania Governor determined that making marshmallow peeps was "life-sustaining" but selling firearms was not. (This policy was thankfully reversed.)
The Sixth Circuit tears apart Kentucky's policy:
Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave delivery woman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.
And why does the state trust some professions, but not the clergy to practice social distancing?
Keep in mind that the Church and Dr. Roberts do not seek to insulate themselves from the Commonwealth's general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They are not asking to share a chalice. The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. If any group fails, as assuredly some groups have failed in the past, the Governor is free to enforce the social distancing rules against them for that reason.
If people can congregate, elbow-to-elbow on an airplane, they should be able to do the same in a house of worship.
CROWDED FLIGHT: Alarming images inside a nearly full American Airlines flight from New York to Charlotte is raising questions about social distancing in planes, with many passengers sitting side-by-side and some without masks. @DavidMuir reports. https://t.co/45ScCP4arl pic.twitter.com/Y67HB1kvKv
— World News Tonight (@ABCWorldNews) April 28, 2020
Moreover, the state cannot dictate alternatives that the house of worship can adopt.
Sure, the Church might use Zoom services or the like, as so many places of worship have decided to do over the last two months. But who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when "two or three gather in my Name." Matthew 18:20; see also On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264- JRW, 2020 WL 1820249, at *7–8 (W.D. Ky. Apr. 11, 2020).
Not all faiths can use Zoom. Certain Jewish groups will not use electricity during the Sabbath and other holidays. It is simply impossible for them to live-stream a Passover seder or the Kol Nidre service during Yom Kippur. And there are some rituals that can only be performed with a quorum of ten, know as a minyan.
Marc DeGirolami provides the Catholic perspective at Mirror of Justice:
Consider religious observance. If one's view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores–treating the goods of the human activities that these places foster unequally–is perfectly justified. But if one's view of the true goods of religious observance is very different, then one will not accept these arguments.
Marc also draws attention to a jarring video from Italy. A police officers interrupts a mass, and tells the priest to stop the service, and disperse his parishioners. At the time, there were 14 people, who were spaced out in a huge church. Marc relates that the government had planned to re-opened certain businesses, including museums. But not churches.
The dialogue is in Italian, but you can follow along. The priest tells the officer, "All right, I'll pay the fine, or whatever there is to pay." The officer says people can watch the live-stream. The priest replies that his parishioners cannot receive communion online.
Zoom may be an answer to online education. But it is not a replacement for deeply held religious practices. Thankfully, laws like RFRA ensure that the government cannot substantially burden free exercise, even if it acts with purported neutrality. I hedge, slightly, because often a policy of neutrality is premised on a secular understanding of what is "life-sustaining" and what is "soul-sustaining." For many Americans, what is "soul-sustaining" is "life-sustaining." A house of worship is far more essential than a liquor store.
Update: I corrected one point above: museums had been scheduled to re-open, but had not yet opened when the video was filmed.