The extraordinary measures designed to slow the spread of coronavirus (COVID-19) continue to cause constitutional clashes. My last post’s opening hypothetical about members of a congregation being ticketed for attending church services has now become a reality, and the Supreme Court has given its first hint on how it would strike the balance between fundamental constitutional rights and the government’s interest in preserving public health. The Court’s decision indicates that it will defer to elected officials’ decisions on how to best combat a rapidly changing and devastating pandemic.

As discussed last month, Jacobson v. Massachusetts allows state and local governments to enact reasonable regulations to protect the public’s health and safety, even if those regulations would otherwise infringe on constitutional rights. The Jacobson Court, however, recognized multiple exceptions, including when the regulation (1) has “no real or substantial relation” to protecting the public health or “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law” or (2) has been enforced in “arbitrary, unreasonable manner.”

Several churches have argued that shelter-in-place orders prohibiting religious services are “a plain, palpable invasion of rights secured” by the First Amendment’s Free Exercise Clause. The First Amendment states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .” The Free Exercise Clause prohibits discrimination against religious practices. Religious beliefs do not excuse people from complying with neutral and generally applicable laws regulating conduct. But governments cannot regulate practices because they are committed for religious reasons. Nor can governments selectively impose burdens only on religiously motivated conduct.

According to the churches, the shelter-in-place orders violate the Free Exercise Clause because they bar religious services but allow similar secular activities. Essential businesses may open with restrictions, but houses of worship must remain closed even if attendees adhere to the same restrictions. The churches also contend that discriminating against religious activities is both “arbitrary” and “unreasonable,” given that other activities pose the same risk to the public health. Those arguments have had a mixed reception.

South Bay United Pentecostal Church v. Newsom

Late Friday, a sharply divided Supreme Court rejected a church’s challenge to California’s shelter-in-place order. California has adopted a four-stage reopening plan, which progressively relaxes restrictions. Schools, restaurants, museums, shopping malls and offices are allowed to reopen during stage 2. But houses of worship are not allowed to reopen until stage 3, along with bars, movie theaters and hair salons. The South Bay United Pentecostal Church and its bishop sued, arguing that California violated the Free Exercise Clause by placing churches in stage 3 instead of stage 2.

The Ninth Circuit, however, refused to block the order. In a brief opinion, the court stated that the government does not violate the First Amendment when “it does not in a selective manner impose burdens only on conduct motivated by religious belief.” The court noted that California was reacting to “a highly contagious and often fatal disease for which there presently is no known cure.” And it ended the opinion with Justice Jackson’s famous quote that, “if a court does not temper its doctrine logic with a little practical wisdom, it will convert the Bill of Rights into a suicide pact.” The church then filed a motion for emergency relief in the Supreme Court.

The Court denied the motion in a 5 to 4 decision. Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan voted to deny the motion, and the Chief Justice issued a brief opinion explaining his reasoning. Pointing to Jacobson, he stated that the Constitution entrusts the responsibility to guard the public health to elected officials. They should not be second-guessed by unelected and unaccountable judges, who lack the expertise to assess medical and public-health measures. The Chief Justice also remarked that the California’s order did not appear to discriminate against religious groups. “[T]he Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”

On the other side, Justices Thomas, Alito, Gorsuch and Kavanaugh voted to grant the church’s motion. In a dissenting opinion, Justice Kavanaugh stated that California had not shown a compelling reason for treating religious groups differently if they adhered to social distancing and other health guidelines governing secular businesses. Justices Thomas and Gorsuch (but not Alito) joined that dissent.

Elim Romanian Pentecostal Church v. Pritzer

The Seventh Circuit also rejected a challenge to Illinois’s shelter-in-place order for essentially the same reasons articulated by Chief Justice Roberts. The Elim Romanian Pentecostal Church sued to block the order, which (at the time) prohibited religious gatherings exceeding 10 people. The church argued that the order discriminated against religious groups, because it exempted essential businesses from the 10-person restriction, even though the risks of spreading the virus was the same.

The Seventh Circuit, however, refused to block the order, concluding that it did not discriminate against religion. Relying on Jacobson, the court stated that the order “respond[ed] to an extraordinary public health emergency” and neither showed hostility to religion nor treated religious activities worse than similar secular activities:

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 of time, especially where speech and singing feature prominently and raise the risk of transmitting the COVID-19 virus. Worship services do not seem comparable to secular activities permitted under the Executive Order, such as shopping, which people do not congregate or remain for extended periods of time.

After the church requested that the Supreme Court intervene, Illinois’s governor lifted the 10-person restriction on religious services. The Supreme Court then denied the church’s motion in light of the modifications to the order.

Maryville Baptist Church v. Beshear and Roberts v. Neace

Other courts have been more receptive to the churches’ arguments. The Sixth Circuit temporarily blocked the Kentucky Governor’s shelter-in-place orders that prohibited both drive-in and in-person church services. Maryville Baptist Church held a drive-in service on Easter in its parking lot. The Kentucky State Police issued notices to the congregants that they had committed a crime by attending the service and required them to self-quarantine for two weeks. The church and some of its members sued.

In two cases, the Sixth Circuit concluded that Kentucky’s orders likely violated the Free Exercise Clause, because the orders had many exceptions for comparable secular activities. The first case addressed the drive-in services. The court noted that that the orders “permit parking in parking lots with no limit on the number of cars or the length of time they are there so long as they are not listening to a church service. On the same Easter Sunday that police officers informed congregants that they were violating criminal laws by sitting in their cars in a parking lot, hundreds of cars were parked in the grocery store parking lots less than a mile from the church. The orders permit big-lot-parking for secular purposes, just not for religious purposes.”

In the second case, the court concluded that the ban in-person services was also likely unconstitutional. While Kentucky’s orders prohibited religious gatherings, it allowed certain business, such as law firms, airports, laundromats, liquor stores, gun stores, mining operations and funeral homes, to operate so long as they followed social-distancing rules and other precautions. The court asked why the same rules should not also apply to houses of worship, given the similar risks of spreading the virus:

Risks of contagion turn on social interaction in close quarters; the virus does not care why [people] are there. So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place, but not another for similar lengths of time? It’s not as if law firm office meetings and gatherings at airport terminals always take less time than worship services. If the problem is numbers, and risks that grow with greater numbers, there is a straightforward remedy: limit the number of people who can attend a service at one time.

The court also emphasized that the church’s members were willing to follow social-distancing rules and any other public health guidelines. And the Governor 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 do the same.” In fact, those accountants, lawyers and laundromat workers are often members of churches too. “How can the same people be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings?”

Finding no justification for treating religious groups differently than secular businesses, the court blocked the Governor’s orders. It stated that, “[w]hile the law may take periodic naps during a pandemic, we will not let it sleep through one.”

First Pentecostal Church of Holly Springs v. City of Holly Springs

The Fifth Circuit reached a similar result in case coming from Holly Springs, Mississippi. The City of Holly Springs issued a shelter-in-place order that required closure of all non-essential businesses, including churches, and prohibited gatherings of any size. Defying the order, the church held an in-person service on Easter Sunday. Although the members were practicing social distancing, three police officers interrupted the service, demanded that it cease, and cited the pastor for violating the order. The church then sued, arguing that the order violated the Free Exercise Clause.

The district court refused to block the order. In a blistering opinion, the court stated that it feared that the church was “proceeding in an excessively reckless and cavalier manner and with insufficient respect for the enormity of the health crisis which the COVID-19 pandemic presents.” The church appealed to the Fifth Circuit, and, while the case was pending there, its building burned to the ground. Police found the message “Bet you stay home now you hypokrits” spray-painted on the ground near the church’s doors. The police naturally suspect arson.

The church, however, prevailed at the Fifth Circuit. The court temporarily blocked the city from enforcing sections of its shelter-in-place order against the church. The court noted that it granted relief based “upon the assurances by the Church that it will satisfy the requirements entitling similarly situated businesses and operations to reopen.” In a concurring opinion, Judge Willet criticized the city for its lack of sensitivity to the destruction of the church’s building.

Tilting the Scales in Your Favor

These recent decisions have not changed my advice from last month: following the applicable shelter-in-place orders and other social-distances guidelines is the best course of action, from both a health perspective and legal perspective. Unless you can show that you are engaging in a constitutionally-protected activity and the authorities are treating you worse than people engaged in similar activities that are not protected by the Constitution, courts will likely uphold orders designed to combat the spread of COVID-19.