On March 30, 2020, officers with the Hillsborough County Police Department in Florida arrested the Rev. Rodney Howard-Browne, who pastors a Pentecostal megachurch, for holding a worship service despite an emergency order ordering people to maintain social distancing and avoid large gatherings in order to combat the coronavirus epidemic.  He posted a $500 bond and was released (Mazzei 2020).   

A week earlier, Pastor Tony Speel of the Life Tabernacle Church in Baton Rouge, Louisiana hosted Sunday morning services of 1,825 people, claiming that his church was helping to handle the pandemic by the laying on of hands of the sick, although it is not clear that he violated a specific order in so doing (Nextar Media Wire).

Would restrictions during coronavirus violate First Amendment?

These cases lead to the obvious question as to whether they violate the First Amendment, which guarantees both the free exercise of religion and the right to peaceable assembly.

The scholarly consensus appears to be that states and localities have the right to limit the size of gatherings of non-family members consistent with their state police powers over matters of local health and welfare, which are recognized by the Tenth Amendment to the U.S. Constitution. 

In Jacobson v. Commonwealth of Massachusetts, 197 U.S 11 (1905), Justice John Marshall Harlan upheld a fine of $5 for an adult who refused to take a compulsory smallpox vaccination.

Churches would not be exempt from generally applicable laws

Cases that involve possible conflicts with the free exercise and peaceable assembly clauses are somewhat more complicated, but in times of genuine public health crises, churches, synagogues, and mosques are no more exempt from neutral and generally applicable laws designed to protect health than are any other institutions.

Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, which has long been committed to separation of church and state, thus likens such laws to laws like occupancy limits that would apply equally to theaters, diners, or other buildings (Moore 2020). 

He notes that the Religious Freedom Restoration Act of 1993, which was designed to help secure religious liberty in the wake of the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith (1990), continued to subject religious groups to laws in cases where these laws had a “compelling state interest” and in which states used the “least restrictive means.” 

Moore further suggests that there may be cases where ministers should be classified as health workers in cases where they are carrying out their ministry (in which cases, they would presumably have to wear the same protective devices as their medical counterparts).

Restrictions that singled out churches could violate First Amendment

To be clear, any laws that singled out churches for special restrictions would likely not only violate the First Amendment but also violate due process requirements in the Fifth and Fourteenth Amendments. As one reporter summarized her findings, places of worship are not entitled to “special treatment during a public health crisis, but they are guaranteed fair treatment” (Dallas 2020). A law allowing large numbers of people to attend sports events but not places of worship or a policy that provided for the punishment of pastors but not sports managers for holding gatherings with similar numbers would thus be clearly unconstitutional.

As the magnitude of the COVID-19 virus became evident, the U.S. Supreme Court initially declined on May 29, 2020, in South Bay United Pentecostal Church v. Newsom (2020), to issue an injunction against an order by California Gov. Gavin Newsom limiting attending at places of worship to 25% of building capacity or a maximum of 100 attendees. The Court reasoned that the state had enforced similar restrictions on secular businesses. Four dissenters, however, thought that the law was discriminatory.

However, on Nov. 25, 2020, the Supreme Court did issue a preliminary injunction in Roman Catholic Diocese of Brooklyn v. Cuomo It ruled that very restrictive regulations on houses of worship in New York were stricter than those for comparable businesses and thereby were not neutral but discriminatory. Moreover, on Feb. 5, 2021, the Court in South Bay United Pentecostal Church v. Newsom, 141 S.Ct. 716, finally granted a major portion of the injunctive relief that it had refused to offer when the case came to the Court earlier.

The Tennessee state legislature is currently considering a law that would allow religious exemptions from COVID-19 vaccinations although it would specifically exempt private businesses, state universities, government-run hospitals and nursing homes. The fact that one of the bill’s sponsors had said that it would also exempt individuals who doubted the effectiveness of the vaccines (hardly likely to be an exercise of a religious belief) (See Yu, 2021) may somewhat undercut the argument that such refusals are a free exercise matter.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was published March 31, 2020.

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