“Non-Essential”: Church Closures in the Era of Covid-19
My wife and I could feel our excitement mounting as we pulled into the church’s parking lot. We were about to attend our first, in-person worship service since the Covid-19 pandemic began in March. We were thrilled, but by the number of open parking spots, it was clear that others were still wary. Over the last few months, our church had “met” via Zoom. But meeting remotely did not produce the same sense of encouragement, edification, or fellowship as meeting in person.
The Covid-19 crisis has left many church-attendees wondering how the First Amendment of the United States Constitution, which guarantees the free exercise of religion, could allow churches, which many state and local governments deemed “non-essential”, to be shuttered. Now, as Covid-19 cases begin to resurge, there is a legitimate fear that churches may once again be required to close their doors. The purpose of this article is to outline the legal framework that the courts use to analyze First Amendment challenges to church closures, in the context of a pandemic like Covid-19.
Smith and Lukumi – Neutral Laws of General Applicability
In the 1990 case, Employment Division, Department of Human Resources of Oregon v. Smith, the United State Supreme Court ruled that a neutral law of general applicability will not violate the free exercise clause of the First Amendment, even if it burdens religious practice.
The Respondents in Smith were fired by their employer because they ingested peyote, an illegal, hallucinogenic drug, as part of a religious ceremony at their Native American Church. The Respondents filed for unemployment benefits, but the State of Oregon denied their requests under a state law disqualifying applicants from receiving benefits if the applicants had been fired for “misconduct”.
The Supreme Court ruled against the Respondents, and in favor of the State of Oregon, stating that a law banning illegal drugs like peyote, was a “valid and neutral law of general applicability” and that the First Amendment “does not relieve an individual of the obligation to comply” with such laws, even though the law may hinder or prohibit the free exercise of their religion.
The “valid and neutral law of general applicability” rule, handed down by the Supreme Court in Smith, remains the primary rule of law applicable to any religious liberty claim.
However, if a law is not truly neutral, but “targets” certain religious practices or favors secular over non-secular individuals and organizations, that law is Constitutionally invalid.
In the case of Church of the Lukumi Babalu Aye, Inc. v. Hialeah, the Petitioner was a church that practiced the Santeria religion, which includes animal sacrifice as an essential component of its religious practice. The City of Hialeah, Florida passed an ordinance which made it illegal “to unnecessarily kill … an animal in a … ritual … not for the primary purpose of food consumption”. The City ordinance included religious sacrifices within this prohibition, but exempted “any licensed [food] establishment” from the ordinance.
The Supreme Court ruled that the ordinance was not neutral or general, but rather, was “gerrymandered with care to proscribe religious killings of animals by Santeria church members but to exclude almost all other animal killings”. When the Court examined the text of the law, the numerous exceptions for non-religious entities, the reasons the law was passed, and the intent of the legislators who passed it, the Court concluded that the law was not neutral or generally applicable.
If a law that hinders the free exercise of religion is not neutral or generally applicable, such as the ordinance in Hialeah, the law may still be upheld if the law is justified by a compelling governmental interest and is the least restrictive means of advancing that interest.
This is a very high standard that is difficult for the government to meet. In the Hialeah case, the government was not able to prove that its targeting of the Santeria religion was justified by a compelling interest, or that its actions were the least restrictive means of advancing that interest. The Court struck down the ordinance.
In the Aftermath of Smith – the Religious Freedom Restoration Act
The Smith ruling was a very surprising decision. Pre-Smith, the Supreme Court had been very respectful toward religious practice, requiring the government to prove a compelling interest achieved by the least restrictive means under any circumstance in which the government curtailed religious practices, even those circumstances in which the government passed a valid, neutral, and general law.
However. with the passage of Smith, everything changed. Post-Smith, as long as the law was valid, neutral, and general, the government would not have to prove a compelling interest by least restrictive means, nor would the law be struck down as unconstitutional.
Legislators in Congress were so alarmed by the Smith decision, that they almost unanimously passed the Religious Freedom Restoration Act of 1993, also known as “RFRA”. The RFRA stated that any government action that substantially burdens religious must be justified by a compelling state interest by the least restrictive means. Essentially, RFRA turned the clock back to the days before Smith, giving significant deference to religious practices and holding the government to a higher burden of proof before restricting religious liberties.
Numerous states passed their own RFRA laws as well. Currently, twenty-one states have RFRA statutes.
- Before the Smith decision, courts were very accommodating of religious liberty, requiring the government to demonstrate that its actions were narrowly crafted to meet a compelling purpose;
- After the Smith decision, courts were less accommodating of religious liberty, allowing government laws which restricted religious freedom, as long as those laws were valid, neutral, and general.
- After Congress passed RFRA, any law passed by the federal government or by a state government that had passed a state-RFRA, would be upheld if it substantially burdened religious practice and was justified by a compelling government purpose.
Smith, Lukumi, RFRA and Covid-19
How then would these various principles of law apply in the Covid-19 context, specifically with respect to church closures?
Churches have challenged Covid-19 orders with varying degrees of success in different judicial circuits. Congregants of Maryville Baptist Church in Kentucky convinced the 6th Circuit Court of Appeals to block the Kentucky Covid-19 Stay-at-Home Order, while Elim Romanian Pentecostal Church of Chicago, Illinois and Logos Baptist Ministries of Niles, Illinois, were unable to win a victory in the 7th Circuit Court of Appeals.
Most recently, the State of Nevada won a victory in the Supreme Court of the United States. In the case of Calvary Chapel Dayton Valley v. Sisolak, the Supreme Court upheld a Nevada law limiting church attendance to 50 people.
The churches’ arguments and the states’ responses were very similar in each of these cases. In each instance, the primary issue was whether the state’s stay-at-home restrictions were valid, neutral, generally-applicable laws under Smith.
The churches argued that the restrictions targeted and discriminated against places of worship. The churches pointed to the state’s discriminatory restriction of church gatherings while allowing grocery stores, liquor stores, ‘big box’ retail stores, abortion clinics, casinos, and various other businesses to remain open. The churches also emphasized that they were willing and able to socially distance, check temperatures, limit admission, and take other necessary precautions to ensure the safety of their congregation.
The states responded to these arguments by highlighting the differences between grocery stores and other such businesses, where people can enter and leave quickly while remaining socially distanced, and churches, which allow the prolonged gathering of congregants, in close proximity, to fellowship and sing. The states also emphasized that they did not discriminate against churches because they had also prohibited comparable secular gatherings, such as concerts, lectures, and theatrical performances. The states further argued their restrictions, which were based on mounting death tolls due to Covid-19, constituted valid government purposes, especially since churches were not prohibited from meeting remotely, via Zoom, for example. Along those same lines, the states claimed that they were entitled to exercise greater power in light of the Covid-19 emergency, citing court orders permitting greater government power during the Smallpox pandemic in 1905.
While the Supreme Court has ruled in favor of Nevada’s Covid-19 restrictions, not all Covid-19 regulations are same. Churches may effectively challenge unreasonable restrictions under the First Amendment. To increase the likelihood of success, churches should be ready to prove that they were gerrymandered and targeted for less-favorable treatment, despite their ability to maintain the safety of their congregation. By doing so, churches may successfully convince the courts that their states’ order was not neutral or general, and that the local government does not have a compelling reason to keep church doors barred shut.
Churches could also oppose state and local Covid-19 restrictions through their state’s RFRA. Under most state-RFRA statutes, government action will be struck down if it (1) substantially burdens religious practice and (2) the government cannot demonstrate a compelling justification by the least restrictive means. In their challenges to the Illinois Covid-19 orders, Illinois churches have argued that their inability to meet in person is a substantial burden to religion under the Illinois RFRA. They cite Hebrews 10:25, which prohibits Christians from “…forsaking the assembling of [themselves] together, as the manner of some is; but exhorting one another: and so much the more, as [they] see the day approaching”. They argue that the state government cannot establish a compelling justification by narrow means, since churches are capable of gathering without risk to their congregation or the community at large.
So far, the State of Illinois’ response to these arguments does not revolve around whether religious practice is “substantially burdened”, but focuses more on procedural arguments regarding whether a church may assert a state-law claim in federal court. These questions aside, the state continues to assert the argument that Covid-19 is a novel disease that demands swift and drastic action, including closing places of worship along with certain other secular institutions that have similar church-like characteristics. Thus, even if the state’s actions “substantially burden” religion, the state satisfies the test under the Illinois RFRA.
Both sides of the conflict over the application of the First Amendment in the context of a pandemic raise compelling arguments. Proponents of the Covid-19 orders cite the importance of protecting society from a deadly disease, while proponents of open churches reference the cruciality of the civil liberties codified in the free-exercise clause. While some churches have been unsuccessful in the courts thus far, churches in other judicial circuits have been successful in striking down restrictive Covid-19 orders.
For the time being, churches are open to their congregations and the public. With Covid-19 cases on the rise, it is uncertain whether they will remain so. However, as long as our church is open, my wife and I will remain eager to worship with fellow Christ-followers face-to-face (while wearing our masks, of course).
 Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 878 (1990)
 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993)
 42 U.S.C. § 2000bb et seq.
 Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020)
 Elim Romanian Pentecostal Church v. Pritzker, 2020 WL 3249062 (7th Cir. 2020).
 Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, et al., 591 U. S. ____ (2020)