Do Pandemic-Inspired Bans on Religious Services Violate the First Amendment? Circuit Courts Are Split.

Supreme Court precedent suggests COVID-19 restrictions that discriminate against churches are presumptively unconstitutional.


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."

NEXT: This Judge Is Wrong About Economic Liberty and the Constitution

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    1. Halal slaughter is barbaric and needs to be banned. However, I agree with Muslims that circumcision is a minor medical procedure that should be continued. Naturally, this agreement ends with “female circumcision”.

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      2. Wouldn’t the same objection apply to kosher slaughter?

        1. America is a Judeo-Christian nation that support Israel. PERIOD

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    2. What about them? Are there state or federal laws specifically regarding Halal meats? It seems to me that religion should follow the laws meant for everyone, including taxation. The first amendment does not allow laws specifically aimed (either for or against) at religion but does not say that religion should be excluded from broad laws regarding all institutions. I would argue that excluding religion from broad laws regarding everyone would be unconstitutional.

      1. Jurisprudence over obvious meaning. Wall of separation or some retarded eugenicist judge shit.

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  1. Do Pandemic-Inspired Bans on Religious Services Violate the First Amendment?

    Yes. Next question.

    1. Usually it isn’t quite that simple, but in this case it really is.

    2. Do Pandemic-Inspired Bans on Religious Services Literally Anything Violate the First Amendment?

      Also yes. There’s no “emergency” exception to the 1st amendment.

      1. Nor a “generally applicable law” exception.

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    3. Especially, when everything else is open by now!!!….Let’s face it, sinc e the rise of Cultural Marxism, there has been a war on Christianity in the West! Alas, the Muzzos & Jews are suffering now too, but make no mistake these bans are to crush Christians who mostly vote for Trump!

  2. 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.”

    I wonder the ages of the majority on the 9th Circuit panel.

    1. Governor Thomas Hutchinson was driven out of Massachusetts for far less than what Governor Charlie Baker has done…

      1. The colonists went to war for far less than what’s going on now

        1. All military grade weapons have been banned. Even conservatives support this.
          If the people still had access to warships and whatnot, I dont think the authoritarians would have it so easy. Too bad the militias are mostly for various racists and religious kooks nowadays.

    2. I wonder the ages of the majority on the 9th Circuit panel.

      They’re all new age.

  3. The Washington times had an interesting take on the church burning: “This is what happens when a population is driven by fear, not reason.”

    1. Obviously the people are afraid! They listen to Donald Trump and the other habitual liars in the GOP instead of the fact-based reporting of the New York Times and Washington Post. These “alternative facts”, proliferated by the Dotard in Chief, will naturally cause confusion among the people when America needs clear and steady leadership, illustrated superbly by Governor Newsom and Cuomo.

      1. It’s getting harder and harder to differentiate between this sort of madcap far-left parody and the opinion pages of the New York Times.

    2. I look forward to The Atlantic’s many think pieces on the dangers of increased bigotry and violence towards our country’s religious communities by an increasingly emboldened alt-left who obviously are penetrating public discourse at an alarming rate.

  4. Breaking news!!!

    Donald Trump killed his personal assistant, Carolyn Gombell, in October 2000. He strangled her because he’d gotten her pregnant and was threatening to tell the press. Then he bribed NYPD Police Chief Bernie Kierik to cover it up. IT’S TIME TO INVESTIGATE. #JusticeForCarolyn

    1. Lol. I was hoping that idiot DOL would come post this.

    2. Trump did say he could literally murder someone and his supports would still love him. I guess we’ll get to put this to the test. Thank you for bringing this serious matter to our attention.

    3. Why the hell would Trump care in 2000 if people knew he knocked up his secretary?
      That’s the kind of stuff he brags about, “Very potent sperm, extremely potent. It only took me two pumps to inseminate, I have a powerful and sensitive glans”.

      1. There you go.
        Trying to apply logic to lunatic ravings.
        Stop wasting your time. These people are beyond help.

  5. I wonder if restrictions were placed on abortion clinics what the judges would say.

    1. Moloch demands his portion, who is the American judiciary to argue.

    2. Again, different courts said different things. Texas banned all non-emergency procedures and included abortions. It went back and forth between levels and then became somewhat moot as things reopened.

    3. How about restrictions on probably the most prolific of contagion points – public transit?

  6. “The bill of rights is more of a guideline than actual rules.”

    Hector Barbossa (D-FL)

  7. ban on peyote—a neutral, generally applicable law that incidentally impedes religious freedom?

    Ban on mail-in ballots—a neutral, generally applicable law that incidentally impedes civic freedom?

  8. How are fire codes enforced on churches? Same as X-rated movie theaters. Should be the same with other government regulations.

    1. That’s been the issue. Churches are getting shit on while adult theaters are ‘essential businesses’.

    2. In the building and fire codes, movie theaters & performing arts theaters of any type are a different use group than houses of worship. They have very similar but slightly different requirements.

      Houses of worship are, however, in the same use group as things like libraries, museums, courtrooms, bowling alleys, VFW halls, etc.

      Your point still stands though, I think, because the fire code treats a porn shop the same as a religious bookstore. (Group M)

  9. The debate is between between the Governments’ duty for ‘the general welfare” and the “due process” clause in the 14th amendment.

    1. I don’t think there is a conflict.

      Their duty to protect the ‘general welfare’ does not extend to the privilege of removing human rights that are in the way of that provision.

      You can have a duty with limits as to what you can do to fulfill that duty.

  10. >>”Bet you Stay home Now YOU HYPOKRITS.”

    Spelling Bee Champ doesn’t know his Pentacostal.

    1. The Karens have escalated to arson.

      1. normally I’m a casual fan but burning down Jeebus’ house seems like a bad idea overall.

  11. also Rush mentioned you yesterday

  12. Or are they more like the ban on animal sacrifice that Hialeah, Florida, enacted in 1987, which not-so-incidentally prohibited a Santeria ritual?

    That’s why I don’t practice Santeria, ain’t got no crystal ball…

    1. lol “I’m on lockdown like a penitentiary”

  13. This makes me wonder why sex workers don’t claim they are priestesses of Ishtar and their prostitution is thus religious.

    1. Generally whoring is not the most literate and academic of professions.

      Sure you get the odd grad-student with daddy issues being scandalous for a Jezebel writer, but for the most part they’d rather study a meth pipe and a can of Four Loko over “Inanna and Enki”.

  14. 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.'”

    You know that part of the Declaration of Independence where it says “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor” ? They weren’t joking, they knew they were signing their own death warrants, a “suicide pact” if you will, in committing this act of treason against the Crown. The idea that surely they couldn’t really mean that the BoR was paramount even in a matter of life and death is a sick joke, you’re goddamn right they meant what they said – they’d literally rather be dead than live under an oppressive government that didn’t respect their human rights such as those listed in the Bill of Rights. And a shitload of people did in fact pay with their lives for that idea.

    1. You’re right. Many of the Founders went bankrupt or were imprisoned.

  15. “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.”

    Sounds to me like the good judge needs to sign up for some yoga classes, maybe see a massage therapist, do something about all that anxiety. Best of all, maybe he needs to come to terms with the fact that COVID-19 isn’t going away any time soon, and if thinks our religious rights are legitimately subject to revision based on the practical wisdom of judges so long as we’re dealing with COVID-19, then he may be giving judges permission to tinker with our religious rights whenever they see fit forever.

    Incidentally, I’m not sure who’s worse, people who think that our rights only exist when there isn’t an emergency or people who think our rights only exist if the government says so. The latter idea is probably worse, but it’s easily refuted in practice. What does he plan to do–start throwing ministers in jail for opening their churches? Start throwing parishioners in jail for going to church?

    If they really started doing that, Trump would win in a landslide on a platform that would bring the rights of religious believers to the forefront like nothing else has for a long, long time. The war on drugs never really had a chance in it’s pathetic attempt to stomp out the consumption of cannabis, and neither will the war on people going to church.

  16. Ah I see now why the left wasn’t outraged at a church burning. There weren’t little black girls to exploit and no firearms were used.

    1. For the Tony, Jeff, Buttplug crowd the smell of burning churches is aromatherapy.

  17. “like Oregon’s ban on peyote—a neutral, generally applicable law that incidentally impedes religious freedom”

    I would disagree right out of the gate here. Just because the Supreme Court *said* a law was neutral doesn’t mean it was.

    The Court narrowed its focus on peyote and said “look, a neutral law against peyote!”

    Why couldn’t they have broadened their vision and seen that religious bodies that use alcohol in their services get a break from the controlled-substances laws – eg, exemptions from regulations on importing alcohol, exemptions from local-option laws, and exemptions from the ban on serving alcohol to minors?

    See Oregon statutes 471.404(1)(b), 471.405(2), 471.410(4), 471.430(2), 471.510

    This begs the question of whether the distinction between alcohol and peyote is “neutral” as far as religious believers is concerned.

    And this is the paradigmatic case of a supposedly neutral law!

    1. Plus, it’s hard to ignore that prohibition laws have their origin in specific religious beliefs in the first place. Calling the ban on peyote “neutral” with regards to religion is preposterous on its face.

      1. That’s why the federal government passed and most states passed RFRA which is strangely never mentioned here

        1. RFRA was literally passed in response to that specific ruling.

  18. The KY Executive Order was transparently unconstitutional. And quickly struck down, along with an asinine travel ban. Our governor has shown himself unable to hold gubernatorial power without grossly abusing it.


    I won’t get COVID if I get an abortion but I
    will get COVID if I get a colonoscopy. Selling pot is essential but selling goods and services at a family-owned business is not. Pot wasn’t even legal and pot dispensaries didn’t even exist in this state until five months ago and, in that five months, they have become essential but a family-owned business in existence for five generations is not.

    A family of six can pile in their car and drive to Carlyle Lake without contracting COVID but, if they all get in the same boat, they will. We are told that kids rarely contract the virus and sunlight kills it, but summer youth programs, sports programs are cancelled. Four people can drive to the golf course and not get COVID but, if they play in a foursome, they will. If I go to Walmart, I won’t get COVID but, if I go to church, I will.

    Couple things here.

    1. Yes, they violate the 1st Amendment. Period. No matter how ‘necessary’ they may be they violate the first amendment.

    2. In the short term it might be necessary to do this. It might be necessary to drop, for a short while, the principles that guide life during normal time because they’re not suitable for an emergency. Might be.

    3. Governments should step back and maybe do some self-reflection that no one trusts them when they say this is necessary.

    4. It makes it even harder to trust you when not only has your past behavior indicated that you’re not trustworthy but when your current behavior is so contradictory that its obvious you’re just flailing around. If you don’t know what you’re doing and its obvious that you don’t know – stop trying to ‘be in control’. That you insist on maintaining ‘control’ just makes us trust you even less for next time.

  20. To me, the entire question turns on: Can you treat religious activities differently than secular activities of a similar nature (e.g. prohibit them)?

    The answer is no.

    Here in the People’s Republic of NJ, our free exercise rights are being suppressed. And have been for months. This is wrong. I hope the Third Circuit gets a case very soon.

    Phailing Phil Murphy, NJ governor, is drunk with executive power. He rules by EO. The Duma (legislature) just navel gazes.

    1. Maybe try rioting?

      1. No, we cannot go wilding, Nardz. 🙂

        Besides, how do you do that in a suit?

        1. If it was a zoot suit?

  21. Why didn’t you mention that the peyote case led to the passage of RFRA?

    I know that “bake the cake” Kochatarians regurgitate the NYT opinion page on the First Amendment, but ignoring state level RFRAs makes no sense

  22. 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.’
    So, allowing individuals the freedom to choose to attend – or not, their religious services is a suicide pact? Clearly, I’m not a lawyer, because that claim sounds like total bullshit to me. This isn’t a court commandment to go to church, it should be a recognition of freedom – liberty is the freedom to choose. I’m not even religious and it pisses me off.

  23. When will religious people understand that social distancing regulations are there to keep them alive.

  24. Of course this is, by definition, not a generally applicable regulation of underlying physical conduct. electrician in arlington va

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