Are COVID-19 lockdowns that prohibit church services like Oregon's ban on peyote—a neutral, generally applicable law that incidentally impedes religious freedom? Or are they more like the ban on animal sacrifice that Hialeah, Florida, enacted in 1987, which not-so-incidentally prohibited a Santeria ritual?
Those questions are at the heart of constitutional challenges to pandemic-inspired restrictions on religious services. Different federal appeals courts have answered them differently, creating a circuit split that reveals both encouraging alertness and alarming indifference to what seem like clear violations of the religious freedom protected by the First Amendment.
In the 1990 case Employment Division v. Smith, the Supreme Court upheld Oregon's denial of unemployment benefits for two members of the Native American Church who had been fired from their jobs as drug rehabilitation counselors because they violated state law by participating in a peyote ceremony. The Court ruled that the First Amendment does not relieve Americans of the duty to obey a "neutral, generally applicable law" that prohibits religiously motivated conduct.
Three years later, by contrast, the Court overturned a local ban on animal sacrifice in Church of Lukumi Babalu v. City of Hialeah. Although the ban was framed as a general response to animal cruelty, its timing (in response to the opening of a new Santeria church) and the exceptions it included (e.g., for ritual slaughter of animals to be consumed as food) made it clear that the city was targeting a specific religious practice. The Court held that a law interfering with religious freedom can be neutral and generally applicable on its face but discriminatory in practice, making it subject to "strict scrutiny." That test, which is very hard to satisfy, requires that a challenged policy be narrowly tailored to achieve a "compelling government interest" that cannot be achieved through less restrictive means.
In the context of COVID-19 control measures that restrict religious activities, the lesson from these two precedents seems clear. When those restrictions apply equally to conduct, whether secular or religious, that might promote virus transmission, they pass muster under Smith. But when a state or local government imposes special restrictions on religious activities that don't apply to secular activities involving similar risks, they are presumptively unconstitutional under Lukumi. If, for example, a state allows businesses to continue operating or reopen subject to social distancing and other precautions, a church that is prepared to follow the same rules should be treated the same way.
Applying that analysis in an early decision involving religious freedom during the COVID-19 pandemic, a federal judge in Kentucky last month concluded that Louisville Mayor Greg Fischer's unilateral ban on drive-in Easter services was "stunning" and "'beyond all reason,' unconstitutional." U.S. District Judge Justin Walker noted that the city had not imposed general restrictions on cars in parking lots and was allowing drive-through transactions at restaurants and liquor stores. "If beer is 'essential,'" Walker suggested, "so is Easter."
In California, by contrast, the U.S. Court of Appeals for the 9th Circuit was unimpressed by the constitutional arguments against Gov. Gavin Newsom's reopening plan, which provoked massive pushback from congregations across the state by arbitrarily discriminating against religious groups. Newsom has since modified that plan, although the churches that challenged it still object to some of the remaining restrictions.
"Where state action does not 'infringe upon or restrict practices because of their religious motivation' and does not 'in a selective manner impose burdens only on conduct motivated by religious belief,' it does not violate the First Amendment," two members of a three-judge 9th Circuit panel declared last week. "We're dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a '[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.'"
Both the majority's description of COVID-19 and its invocation of Jackson's comment were telling. A disease that kills 0.4 percent of people who suffer from it (according to a recent "best estimate" by the U.S. Centers for Disease Control and Prevention) can hardly be described as "often fatal." And the Jackson quote comes from his dissent in Terminiello v. Chicago, a 1949 case in which he defended restrictions on speech that is apt to make people angry.
In Terminiello, the Supreme Court overturned the disorderly conduct conviction of a suspended Catholic priest who gave an inflammatory speech castigating Jews, Franklin and Eleanor Roosevelt, and communists. Writing for the majority, Justice William O. Douglas concluded that Chicago's ordinance criminalizing disorderly conduct, which according to the trial court covered speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance," was inconsistent with the First Amendment. "The vitality of civil and political institutions in our society depends on free discussion," Douglas noted. "A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
That is the position to which Jackson objected in his dissent. "The local court that tried Terminiello was not indulging in theory," he wrote. "It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two." When Jackson warned that the Bill of Rights, if defended too zealously, could become "a suicide pact," he was defending the proposition that the anger aroused by speech can justify prohibiting or punishing it. That argument was based on the constitutionally dubious "fighting words" doctrine, which the Supreme Court endorsed in 1942 but subsequently narrowed so much that its viability as a defense for speech restrictions is highly uncertain.
When judges invoke Jackson's "suicide pact" dissent, it is a clear signal that they have no intention of taking a constitutional claim seriously. True to that pattern, the 9th Circuit disposed of the challenge to Newsom's policy in a couple of pages.
That decision inspired an 18-page dissent by Judge Daniel Collins. While California's "highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint," he wrote, "there is no denying that this amalgam of rules is the very antithesis of a 'generally applicable' prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, 'religious services' have not made the cut. I am at a loss to understand how the State's current maze of regulations can be deemed 'generally applicable.'"
Collins noted that "warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines." By contrast, "in-person 'religious services'—merely because they are 'religious services'—are categorically not permitted to take place even if they follow the same guidelines. This is, by definition, not a generally applicable regulation of underlying physical conduct."
In a May 16 decision rejecting a motion for an injunction pending appeal, a unanimous 7th Circuit panel made even shorter work of a challenge to a ban on religious services in Illinois. "The Executive Order does not discriminate against religious activities, nor does it show hostility toward religion," the 7th Circuit said. "It appears instead to impose neutral and generally applicable rules….The Executive Order's temporary numerical restrictions on public gatherings apply not only to worship services but also to the most comparable types of secular gatherings, such as concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods, especially where speech and singing feature prominently and raise risks of transmitting the COVID-19 virus. Worship services do not seem comparable to secular activities permitted under the Executive Order, such as shopping, in which people do not congregate or remain for extended periods."
Two other appeals courts were more receptive to claims that banning church services violates the First Amendment.
On May 9, a unanimous 6th Circuit panel granted an injunction pending appeal to Maryville Baptist Church, which had challenged Kentucky Gov. Andrew Beshear's lockdown orders. "The Governor's restriction on in-person worship services likely 'prohibits the free exercise' of 'religion' in violation of the First and Fourteenth Amendments," the 6th Circuit concluded, saying the "four pages of exceptions" to Beshear's orders, allowing some group activities but not others, "remove them from the safe harbor for generally applicable laws" like the Oregon drug ban upheld in Smith.
"The Church and its congregants just want to be treated equally," the appeals court observed. "They don't 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 do not ask to share a chalice. The Governor has offered no good reason 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."
Last week a unanimous 5th Circuit panel temporarily enjoined a ban on church services in Holly Springs, Mississippi, sending the case back to the district court for further consideration of "a shifting regulatory regime." The court said the injunction was based on assurances from the First Pentecostal Church of Holly Springs that "it will 'satisf[y] the requirements entitling similarly situated businesses and operations to reopen.'"
In a concurring opinion, Judge Don Willett noted that the church "was burned to the ground earlier this week" and that the arsonists left a spray-painted message: "Bet you Stay home Now YOU HYPOKRITS." Rather than expressing outrage at that development, Willett said, the city made the "shameful" argument that the church's destruction rendered its motion moot. He added that a policy "singling out houses of worship—and only houses of worship, it seems—cannot possibly be squared with the First Amendment."
On Sunday, when it asked Supreme Court Justice Elena Kagan for an emergency injunction against California's restrictions, the South Bay United Pentecostal Church argued that the circuit split makes it likely that at least four justices would favor hearing the case. "According to the Fifth and Sixth Circuits, the violation of Plaintiffs' rights is 'indisputably clear,'" the church said, "while according to the Seventh and Ninth Circuits, no such violation occurred whatsoever."