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Across the nation, State Governors have issued Executive Orders restricting the operation of businesses and the daily activities of individuals. They are doing so in response to the COVID-19 pandemic which has swept America and the world. These Orders often include prohibitions on the gathering of 10 or more people in any enclosed space.

Churches have not been exempt from these Executive Orders, and religious activities are usually expressly included. The effect has been to close churches for Sunday worship and other ministries, and to likewise restrict services in synagogues and mosques.

Churches have generally complied and cooperated with the Executive Orders, and taken their services on line. But there have also been vocal protests, defiance, and court challenges. At the heart of the controversy is the question of constitutional rights. How can a State Government have the power to effectively shutter churches in a nation that guarantees freedom of religion?   The first legal test arose in the United States District Court in Kansas.

Kansas Governor Laura Kelly issued a series of Executive Orders in response to the declared state of emergency. On April 7, 2020 she issued Executive Order 20-18, effective the next day, that prohibited gatherings of more than 10 people. The Order was expressly made applicable to “churches and other religious facilities.” It prohibited “gatherings of more than ten congregants or parishioners in the same building or confined or enclosed space.” The pastor, choir, and those participating in the service were exempt from the ten-person limit.

Two churches filed suit: The First Baptist Church of Dodge City, and Calvary Baptist Church of Junction City. The Court held an emergency hearing, by telephone, on April 17, and issued a Memorandum and Order the next day.

The question before the Court was whether the Executive Order violated the constitutional guarantee of freedom of religion. The State governments have broad powers, especially in times of emergency. The Federal government has limited powers and only those the Constitution so provides. State governments have broad powers and can act except where the Constitution says it cannot.

No one doubts that State governments can make general laws that impact churches and church buildings. It can require that churches conform to building and fire codes. It can assign occupancy limits to church buildings, just as it does to movie theaters and restaurants.

The question is when do those restrictions become a violation of the constitutional protection of freedom of religion. The answer is framed in a three part test: All governmental restrictions on churches must be (i) laws of general applicability (that is applicable to all businesses and institutions and not just religious activities); (ii) they must concern a compelling governmental interest; and (iii) they must be narrowly tailored to meet that interest.

In First Baptist Church v. Governor Laura Kelly, the “compelling government interest” is clearly the COVID-19 pandemic. The United State Supreme Court ruled in 1905 in a case concerning smallpox vaccinations that “under the pressure of great dangers constitutional rights may be reasonably restricted as the safety of the general public may demand.” Jacobson v. Commonwealth of Massachusetts.

Likewise, the Executive Order was designed to meet the crisis. Court cannot second-guess the executive on the 10 person limit on gathering. To do so would be to “usurp the functions of another branch of government” so long as the restrictions had some “real or substantial relation to the public health crisis.”

And so, the question came down to the first prong of the test, was Executive Order 20-18 of general applicability? The Court found that it was not, and that it disfavored churches as opposed to businesses and other institutions.

The Court noted that the Order started with general language concerning “all public or private mass gatherings.” But then it went on to list 26 exceptions, including airports, childcare facilities, hotels, shelters, shopping malls, libraries, senior centers, restaurants, bars, office spaces, and manufacturing sites.

The Court, quoting from a 1993 Supreme Court religious freedom case (Church of Lukumi Babalu v. City of Hialeah), found that “when individualized exemptions from a general requirement are available, the government may not refuse to extend that system to cases of religious hardship without compelling reasons.” The Court went on to hold that “a law is under inclusive, and thus not generally applicable, when it fails to prohibit secular activity that endangers the same interests to a similar or greater degree than the prohibited religious conduct.”

The Court ruled that the Governor’s Order appeared to have singled out religious activities among essential functions for stricter treatment. It thus entered a Restraining Order against the Governor and the State of Kansas from enforcing the penalties in the Executive Order against the churches, its staff, or its members.

This should not be read as a blanket rejection of a State’s authority to act in situations of emergency. In its Order, the Court listed 17 specific restrictions the church would have to accept when holding services, including having the facility deep cleaned before and after each service, restrictions on any church members exposed to the COVID-19 virus from attending, attendees advised to perform temperature checks, attendees being advised to bring their own PPE to church, a single point of entry and egress at the building, there being no church bulletins distributed and no collection plate passed.

The Governor of Kansas subsequently modified her Executive Order, so that religious services were treated the same with other essential activities. A check of the website of the two churches shows that both are still having services on Sunday mornings.

These rulings are consistent with statement released by Attorney General William Barr on April 14, 2020. He stated the same principles of law applied by the Federal Court in Kansas:

In exigent circumstances, when the community as a whole faces an impending harm of this magnitude, and where the measures are tailored to meeting the imminent danger, the constitution does allow some temporary restriction on our liberties that would not be tolerated in normal circumstances. 

But even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers.  Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity. For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings.  Religious institutions must not be singled out for special burdens.  

The legal landscape of COVID-19 continues to develop and change at a rapid pace. However, Despite this time of uncertainty, the Federal Court in Kansas, along with the statement of Attorney General William Barr, indicate that the freedom of religion is invariable, even in times of emergency and crisis.

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