Lifted hands in worship of Jesus

Yes, shuttering churches is allowed by the U.S. Constitution to protect public health

I never thought I’d be writing this, but yes, the First Amendment does allow the government to prevent churches from holding worship services — at least as it is being done now to limit the spread of the covid-19 virus.

The headlines have been all across social media recently about churches defying government authorities and/or the best medical advice from the likes of the Centers for Disease Control and even the White House in order to hold worship services. Predictably, the churches have stood behind the First Amendment to defend their gatherings even though they put their communities at risk.

Although I belong to a church denomination that quit holding its Sunday meetings worldwide even before it was required to by law, I’m not here to question the sincerity of those Christians (or adherents of other religions) who are continuing to meet. They may be crazy and they may be teaching a false theology, but both are irrelevant to the constitutional questions their defiance raises.

While the constitutional protections for religion may be close to absolute — after all, the First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof — freedom of religion has never been viewed as unlimited.

First, common sense tells us some exceptions to free exercise are in order. Even the most ardent defenders of free religious exercise aren’t going to argue that human sacrifices done in the name of God should be tolerated. But courts have allowed less extreme religious practices that would normally be illegal, such as serving wine to minors as part of a religious observance.

Naturally, striking the balance between the constitutional mandate of protecting religious liberty and the obligation of government to provide for the common good has long been the subject of intense debate. Over the years, the courts have more or less settled on what has become the Lemon test to determine whether a government action is permissible. The test grew out of Lemon v. Kurtzman, a case decided 7-1 by the U.S. Supreme Court in 1971.

In that case, the high court struck down Pennsylvania and Rhode Island laws that allowed those states to reimburse religious schools for the salaries of teachers who taught secular subjects using state-approved textbooks. The court developed a three-pronged test, based on earlier cases, to determine whether the constitutional requirements for government involvement had been met; for a law or practice to be constitutional, all three prongs must be resolved in the affirmative:

  • The law in question must have a secular purpose.
  • The primary effect of the law should neither advance nor inhibit religion.
  • The law must not lead to “excessive government entanglement” in religion.

Ultimately, the Supreme Court decided Lemon v. Kurtzman based on the third prong. It found that “comprehensive, discriminating, and continuing state surveillance will inevitably be required” for the states to determine that the funds weren’t being used for religious purposes.

Although the Lemon test has come under fire, mostly by conservatives, and hasn’t always been consistently applied, it remains a key legal framework for deciding church-state cases. Even if a case ultimately isn’t decided using the Lemon test — such as a 2019 dispute in which the high court allowed a 1925 World War I memorial in the form of a cross to remain on public land — its principles inevitably will be part of the legal consideration.

And how might the test be applied to a ban on church services as part of mandatory social distancing to inhibit a pandemic? Such laws clearly have a secular purpose. The primary effect of such regulations inhibit mass gatherings, not religion per se. And there’s no excessive government entanglement, since the regulations aren’t applied on the basis of a church’s beliefs or practices. Essentially, such restrictions are applied to gatherings of all types, both religious and secular. The same rules that prevent a megachurch from holding a large gathering are the same ones that prevent a high school basketball game, so the government is making no judgment that ties theology to the closure.

What about the Religious Freedom Restoration Act, a federal law that provides stronger religious freedom protections than does the Constitution? Or about similar laws that have been enacted by 20-some states? Generally, the federal and state RFRAs require “strict scrutiny” and a “compelling government interest” when a government action impede the free exercise of religion. Whatever rules are put in place must be the least restrictive needed to fulfill the compelling government interest. RFRA and its state counterparts have been used in an incredible variety of cases to protect diverse religious practices such as the wearing of beards by prisoners and the serving of food to the homeless on public lands.

So how might church closures fare under a state-level RFRA? (So far, closures have been imposed by state or local governments, not the federal government, and the federal RFRA doesn’t apply to states.) Clearly, there’s a compelling government interest involved in slowing a pandemic, so the legal question would be whether halting church meetings is the least restrictive approach that could be taken. The quick answer is that there probably isn’t a less restrictive approach, unless it might be to allow gatherings of people only if they’re wearing protective gear of the type that is desperately needed by medical personnel. To the best of my knowledge, no churches (or secular organizations) have suggested they want to hold mass gatherings under such conditions.

Undoubtedly, banning religious gatherings is something no unit of government should take lightly, as religious freedom is an essential liberty and is literally the first freedom of the Bill of Rights. But as long as covid-19 remains a serious threat, state and local governments are well within their constitutional authority to demand that people of faith exercise their rights in ways that don’t impose a threat to public safety.

Photo of pre-pandemic worship service by Matt Botsford via Unsplash.

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