The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Protest, Worship, and the Core of Free Exercise
On the anti-ICE protest at Cities Church in Minnesota
During a recent Sunday worship service at Cities Church, a Southern Baptist congregation in the Minneapolis–St. Paul area, protesters entered the sanctuary and interrupted the service, chanting slogans related to immigration enforcement and ICE. The incident was captured on video, including the church's livestream. Church leaders and congregants later described the intrusion as frightening and deeply disruptive.
Given the early stage of the proceedings, one can't draw firm conclusions about either the facts or the law. But we do know enough for some early observations.
At a high level, the episode sits at the intersection of three familiar principles. Political protest lies at the core of First Amendment protection. At the same time, the First Amendment does not confer an entitlement to enter private property or to substantially disrupt a private gathering simply because one has something important to say. A church sanctuary during worship is not a public forum; it is a private religious space dedicated to a specific purpose. For that reason, incidents like this are often addressed through ordinary, content-neutral state criminal law, such as trespass or disorderly conduct.
The Minnesota authorities don't seem inclined to prosecute, though. But the feds do. According to recent reports, federal authorities have arrested two protest organizers. I don't think the precise charges have been publicly clarified, but the feds had previously indicated that they were investigating potential civil-rights violations.
One statute they reportedly are considering is the Freedom of Access to Clinic Entrances Act, or FACE Act, 18 U.S.C. § 248. In addition to its application in the clinic-access context, the Act makes it unlawful to use "force," "threats of force," or "physical obstruction" to intentionally "injure, intimidate or interfere with" a person "exercising or seeking to exercise" the right of religious freedom at a place of worship. Whether those elements are met here will depend on the facts—for example, whether protesters physically blocked worshippers' movement, whether they employed threats or intimidation, etc. The statute does not criminalize protest as such.
Whatever the ultimate legal analysis, these issues matter beyond this particular episode. People debate what the free exercise of religion means, legally and philosophically. But, at least as far back as John Locke, the right to worship peacefully has been understood to lie at its core. If free exercise doesn't mean the right to worship peacefully in your own sanctuary without being interrupted by outside protesters, it's hard to know what it would mean. Protecting that right is essential to religious pluralism and to living together amid deep disagreement.
I discuss these issues in more detail in a short Legal Spirits episode, available here.
