COVID-19 and Religious Freedom

Christian Legal Society Recognizes the Inalienable Right to Gather

Christian Legal Society (“CLS”) has been monitoring the many legal challenges to the closings of churches and religious congregations. Through its Center for Law and Religious Freedom, CLS has been on the frontlines of religious freedom for decades. CLS believes that the First Amendment right for religious congregations to assemble is unalienable and fundamental. 

CLS also recognizes that at the time many of these orders were instituted, the consensus view of the medical community was that preventing large gatherings of people was necessary to prevent the spread of the coronavirus from overwhelming our hospitals and medical facilities. We recognize that courts have a tough task between recognizing the government’s responsibilities to prevent unmitigated spread of the COVID-19 strain of coronavirus and not infringing on the religious rights of Americans.

CLS commends the churches and religious organizations that have found alternative ways of meeting, such as through livestreaming or webinars. We also recognize, however, that, for many, such measures are not a worthy substitute for gathering together bodily, leading to many legal challenges to stay-at-home orders.    

Each state’s order is different. According to the Pew Research Center, 15 states have no size restriction on religious gatherings. In 10 states, religious gatherings of any size are prohibited. As such, no statement CLS can make at this time would apply to all situations. There are, however, two principles that we can discern from court orders to date regarding challenges to such stay-at-home orders.

What the current challenges tell us. 

Be prepared to go the extra mile.  Courts are seeking a balance between the religious rights of church congregations and the states’ interest in preventing the spread of COVID-19.  Churches that are winning their cases are taking steps to show the court that they take the state’s interest seriously.  In three of the four first successful challenges, the plaintiffs received an injunction allowing them to have “drive-in” services, where people would stay in their cars for the entire service.  Only in one case, Kelly, did the court issue an injunction allowing in-person gatherings, and even then such gatherings were subject to strict social distancing requirements that the churches spelled out for the court.

Challenges to in-person services are starting to gain more traction.  Two courts, including the Sixth Circuit, issuing injunctions against Kentucky’s ban on in-person meetings, subject to social distancing requirements.  A federal district court in North Carolina also struck down an order prohibiting in-person church gatherings.   However, many other challenges requesting courts to allow in-person relief have been rebuffed, especially where the shut-in orders allow for drive-in services.  Where churches are proactive in alleviating the justifiable concerns of federal district judges regarding potential spread of the virus, they have been more successful.  

In light of this consideration and the general welfare of their congregations, churches may want to review recent CDC Guidelines for Faith-Based Gatherings.

RFRAs matter.  All of the successful challenges to stay-at-home orders by religious organizations have occurred in states that have passed some form of RFRA, or Religious Freedom Restoration Act. Although these courts have relied on the state RFRAs to varying degrees, it is not coincidental that all of the successful challenges have occurred in these states. See Maryville Baptist Church, Inc. v. Beshear, No. 20-5427 (6th Cir. 2020) (holding that plaintiffs were likely to prevail on Kentucky RFRA claims); On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264 (W.D. Ky. Apr. 11, 2020) (identifying Kentucky’s RFRA as one of two legal bases in which the church would likely prevail); First Baptist Church v. Kelly (court relied on First Amendment grounds, but Kansas RFRA also raised by plaintiffs). Similarly, lawsuits that resulted in religious congregations getting relief before the issuance of a court order were filed in states that have a RFRA.  At least two other successful challenges have occurred in Kentucky, and, until recently, all successful challenges regarding in-person meetings occurred in RFRA states.  A recent decision in North Carolina enjoining in-person meeting restrictions became the first successful challenge to in-person restrictions in a state without a RFRA.

Without a state RFRA, courts are generally left to the framework of Smith v. Employment Division, 494 U.S. 872 (1990), in which no law violates the Free Exercise Clause if a court determines it is neutral and generally applicable. To date, all courts applying Smith have held that stay-at-home orders are not constitutionally suspect with regards to religious gatherings. Notably, where a state RFRA was also applicable, many courts have held that the framework of Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) applies. Under this framework, a law is not generally applicable where it is subject to exceptions. Where the government grants some exceptions, but refuses to grant a religious exception, the government must justify the lack of a religious exception. Even though Lukumi is a question of federal law, at least part of the justification for its application appears to be that where states protect substantial burdens to religion, a regulation that does not provide religious organizations at least similar status to other organizations is not neutral to religion. Thus, even in the calculus of federal free exercise rights, state RFRAs matter. 

Governments are bound to the emergency powers they set out for themselves.  A more recent trend has seen courts overturning stay-at-home orders where governor’s extend beyond the emergency powers granted to them.  Though not brought by a religious congregation, stay-at-home orders in Wisconsin were invalidated by the State’s highest court, which held that the governor’s safer-at-home orders exceeded his authority.  A very recent decision in Oregon similarly held that Governor Kate Brown had exceeded her authority in her stay-at-home order.  
 

Summary of Challenges to Church Meeting Restrictions

Christian Legal Society is monitoring the numerous legal challenges by churches and religious organizations to different states’ prohibitions on meeting. We have provided our insights here for the benefits of those congregations considering such challenges. New challenges and new orders are being filed on a near-daily basis and the landscape changes rapidly. This page will be updated regularly (last updated 5/22/2020). 

Case

State

Date

Relief Sought

Relief Granted

Binford v. Sununu

NH

3/25/20

In-Person Services

None

Lawrence v. Colorado

CO

3/30/20

In-Person Services

None

On Fire Christian Center, Inc. v. Fischer

KY*

4/11/20

Drive-In Services

Drive-In Services

Legacy Church v. Kunkel

NM*

4/17/20

In-Person Services

None (Drive-In Services allowed
by SAH order)

First Baptist Church v. Kelly

KS*

4/18/20

In-Person Services

In-Person Services

First Pentecostal Church of Holly Springs v. City of Holly Spring

MS*

4/24/20

Drive-In Services

Drive-In Services**

Lighthouse Fellowship Church v. Northam

VA*

5/1/20

In-Person Services

None (Drive-In Services allowed
by SAH order)

Maryville Baptist Church, Inc. v. Beshear (6th Cir.)

KY*

5/2/20

Drive-In and In-Person Services

Drive-In Services

Cross Culture Christian Center v. Newsom

CA

5/5/20

In-Person Services

None

Cassell v. Snyders

IL*

5/3/20

In-Person Services

None (Drive-In Services allowed
by SAH order)

Word of Faith Christian Center v. Whitmer

MI

5/8/20

In-Person Services

In-Person Services**

 Freed v. Inslee

WA

5/8/20

1-on-1 Bible Study

1-on-1 Bible
Study**

Tabernacle Baptist Church v. Beshear (6th Cir.)

KY

5/8/20

In-Person Services

In-Person Services

Calvary Chapel of Bangor v. Mills

ME

5/9/20

In-Person Services

None (Drive-In Services allowed
by SAH order)

Elim Romanian Pentecostal Church v. Pritzker

IL*

5/13/20

In-Person Services

None (Drive-In Services allowed
by SAH order)

Berean Baptist Church v. Cooper

NC

5/14/20

In-Person Services

In-Person Services

Spell v. Edwards

LA*

5/15/20

In-Person Services

None (Drive-In Services allowed
by SAH order)

Elkhorn Baptist Church v. Brown

OR

5/18/2020

In-Person Services

In-Person Services (TRO currently on hold by Oregon Supreme Court)

Antietam Battlefield KOA v. Hogan MD 5/20/2020 In-Person Services None (Drive-In Services allowed
by SAH order)
First Pentecostal Church of Holly Springs v. City of Holly Spring (5th Cir.) MS* 5/22/2020 In-Person Services

In- Person Services

South Bay United Pentecostal Church v. Newsom CA 5/22/20 In-Person Services

None (Drive-In Services allow by SAH Order)

(Emergency Application for Writ of Injunction pending before U.S. Supreme Court)

 

* State with RFRA
** Relief granted by government concession