It’s obvious that a president can’t “override” state executive orders in order to reopen churches, mosques, and synagogues. (The Constitution simply doesn’t give such “police power” to the federal government.) But it got me thinking about state governors giving preference to churches and letting them open before, say, folk music coffeehouses. It’s hard for me to see how that could pass muster with the First Amendment’s Establishment Clause, since the distinction is clearly the presence or absence of religious practice.
Yet it seems to me that many zoning ordinances do distinguish between buildings for religious assembly and other businesses where a similar number of persons might assemble in a group. Is it simply a matter of not having been challenged on Establishment Clause grounds, or is my analysis missing something?
But you also have the Free Exercise Clause where the government cannot shut down churches. I also don’t see an Establishment Clause issue at all unless a government would say, for example, only Christian churches can open, but no Temples or Mosques.
Isn’t Freedom of Religion (and less so freedom from religion) enshrined as the first article of the constitution. That said, does that over ride Federal and/or State powers of emergency such as a pandemic?
Being the son of a preacher man, IMHO since god is “everywhere” there is no Christian mandate that one must be in church to worship or to pray. That also holds true for Buddhism and Taoism. I’m not sure where Muslims, Wiccans, animists or others stand on this issue, but I’m guessing that they also don’t have to be in a house of worship to worship. YMMV
That is part of the debate. IMHO, a state of emergency cannot override a core fundamental right in the Bill of Rights.
I’m not sure of the other religions, but many sects of Christianity have the “God is everywhere” mentality and for others the need to congregate is important. I think it would be a bad precedent for a court or the government to say, yes, we support the Third Presbylutheran Doctrine to be the true Word of Jesus Christ, therefore in person attendance is not necessary…also no fish on Fridays.
If a preacher ordered his ushers to block the exits of a church which has caught on fire, because the preacher says that God will take care of it, and people die, do you think he is immune from prosecution?
Since we have multiple instances of church services directly leading to illness and death, the analogy seems apt.
People are still free to practice their faith as an individual, as families, and in small private gatherings, and the order is temporary. Nobody’s freedom to practice their faith is being unreasonably burdened.
I don’t expect right wing judges to see it that way, though, which is why I get the warm and fuzzies when I later find out that people who defy such orders - just because - end up coming down with COVID - serves them right. They’re not just a threat to each other; they go out, they shop, they visit doctors, and they put everyone else in danger just because they feel entitled to practice in-your-face religion.
But it can if it is properly and equitably administered.
Just like “time, place, and manner” restrictions on freedom of expression are often ruled to be constitutional if they don’t discriminate based on viewpoint, church services can be included in more general restrictions on in-person gatherings, as long as churches and other religious institutions are given the same opportunity as other types of gatherings to implement proper safety measures.
So, you can pass a law that makes it illegal to broadcast amplified sound after 11 p.m., but you have to make the restriction content-neutral. Similarly, you can pass an ordinance or issue an emergency order that prevents gatherings of over 50 people in enclosed spaces, but you can’t allow restaurants to reopen while refusing the same permission to churches with similar capacities.
The general principle goes back to Employment Division v. Smith, which basically said that even religious people and organizations could be required to comply with “generally applicable” laws that are neutral with respect to religion. There’s been more court decisions since Smith, and some states have also passed Religious Freedom Restoration Acts (RFRAs, pronounced colloquially as “rifras”), which aim to protect religion by requiring strict scrutiny for any law, even a generally applicable law, that burdens religious practice.
The Congressional Research Service put out a report (PDF) about a month ago detailing some of the legal questions raised by this issue. The report notes:
The report gives examples of some laws that might or might not pass muster during the coronavirus lockdowns. How courts rule on these issues will depend on things like whether or not the state has a RFRA, how intrusive the law is, how narrowly tailored it is to achieve a compelling government interest, and whether it is neutral on its face and in its implementation, or whether it unduly burdens religious practice while allowing other gatherings.
Do you think the state has any authority to mandate health and safety rules be followed by religious establishments? Can the fire inspector forbid churches from meeting in buildings that violate fire code? Or enforce rules on building occupancy limits? Can health inspectors condemn church buildings for being filled with black mold? Or would all these be overriding a core fundamental right in the Bill of Rights as well?
A health expert could argue that, for this example, that ‘folk music coffeehouses’ are more likely to be vectors for disease spread than churches.
Smaller spaces, people sitting closer to the performers, audience eating/drinking while the performance is going on, waiters travelling between tables, etc.
But I doubt that any Governor was looking at these health reasons when making these orders. Most important reason was probably the difference in voting turnout between church goers and coffeehouse attendees.
Notably, George Wallace issued an executive order to further school segregation in Alabama. President Kennedy had the feds intervene to enforce desegregation.
So long as restrictions are facially neutral they could impinge on freedom to gather for religious services. Neutrally applied fire codes are one such example where a government could limit the number of attendees in a building at a religious event.
But if a governor’s executive order prevents all indoor religious services while permitting indoor commercial activity then it seems it is not a religiously neutral order.
Mods, I asked a General Question about neither Politics nor Elections. How did it end up here?
mhendo, that CRS memo is very useful; thanks.
Saint Cad, Korematsu’s rationale doesn’t rest on a general police power to meet an emergency—the federal government simply doesn’t have such a power—but on the Constitution’s Section 8 specific grant to Congress of the power to make war. The Court ruled that the power to make war meant the power to wage war effectively, and giving great deference to that could overcome the Fifth and Fourteenth Amendment issues.
An opinion came down in the Ninth Circuit Court of Appeals on Friday that addresses this issue. The case was South Bay United Pentecostal Church v. Newsom (PDF), in which a San Diego-area church was asking for a temporary restraining order against California’s stay-at-home orders. The District Court denied the restraining order, and the Circuit Court upheld the District Courts decision, arguing:
This was a three-judge panel, and the decision was 2-1. The opinion itself is only about two pages long; the other 18 pages are taken up by a dissent, written by Judge Collins. The judge disagrees with the majority’s decision that the church would not be able to make its case. He notes that, in California’s multi-stage re-opening plan, “religious services” are explicitly placed in Stage 3, along with activities like “movie theaters” and “personal and hospitality services.”
He goes on to argue that the law is not one of “general applicability” because it specifies very minutely who can do what, and when, with regard to re-opening and going out in public:
He also disagrees with the other two members of the court that the law satisfies strict scrutiny.
I think that perhaps his most convincing argument comes in the next paragraph, when he points out a rather odd inconsistency in the state’s position:
If anyone’s interested, the dissenting judge is a Trump appointee, and the other two were appointed by Clinton and Obama.
California’s reopening plan puts lower-risk workplaces (including office workplaces) in stage 2, with higher-risk workplaces in stage 3. My Goofle-fu isn’t coming up with a reference to churches being placed in stage 3, but I’d think the state would have to have a compelling argument for doing so.