James G. Hodge, Jr., J.D., LL.M., is the Peter Kiewit Foundation Professor of Law at the Sandra Day O'Connor College of Law, Arizona State University, where he directs the Center for Public Health Law and Policy.
Extraordinary responses to the COVID-19 pandemic are generating substantial debates over the scope and reach of public health powers and religious freedoms. Emergency declarations at every level of government to limit societal impacts of COVID-19 may shift constitutional norms, but do not completely negate rights to free exercise or assemble. Yet, no one has an unmitigated right to harm others in pursuit of their faith.
Somewhere between individual religious rights and communal public health objectives lies a legally viable balance. Finding it during the pandemic is controversial. Religious interests support emergency limitations on abortions in multiple states contrary to U.S. Supreme Court precedence. Patients’ life and death decisions pursuant to crisis standards of care offend some religious beliefs. Forthcoming COVID vaccine requirements raise concerns over allowances for existing religious exemptions.
Among the most contentious issues are governments’ temporary orders suspending large religious gatherings to maintain social distances. While many religious leaders have complied, others have vociferously objected. On May 22, 2020, President Trump demanded that states re-open religious enterprises despite contrary guidance from the Centers for Disease Control and Prevention (CDC) and resistance among multiple states.
Reaching accord begins with an assessment of legal principles of separation of church and state, especially concerning claims of religious rights to assemble despite unprecedented public health risks.
Constitutional Separation of Church and State
Many Americans believe that the constitutional line separating church and state is clear and not to be crossed, even during public health emergencies (PHEs). In reality, the division between government and religion presents a difficult dichotomy. Under the First Amendment, government may not act directly in favor of one religion over others (i.e., Establishment Clause) nor inhibit Americans’ rights to pursue their religious beliefs (i.e., Free Exercise Clause). Navigating these principles has led to innumerable conflicts across a spectrum of legal issues (e.g., taxation, funding, vaccination, medication, exemptions).
What Thomas Jefferson described in 1802 as a “wall of separation between Church and State” undergirds Supreme Court jurisprudence regarding religious expression. In Everson v. Board of Education (1947), Justice Black assessed long-standing harms of religious persecution, concluding that laws implicating religion must be neutral to be constitutional. The Court later developed a balancing test to assess religious restrictions. Laws may incidentally burden religious freedoms if they are neutral in tone and effect; laws that substantially burden such freedoms may only be justified via governments’ compelling interests.
After the Court disallowed faith-based uses of the controlled substance peyote in 1990, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993. Over two dozen states subsequently infused RFRA principles into state law as well. Concerning general laws that burden persons’ broadly-defined religious exercises, RFRA altered the Court’s balancing test by requiring government to demonstrate compelling interests furthered through least restrictive means.
Emergency Public Health Powers and Religious Rights to Assemble
Of course there may be no greater governmental duty than responding to a pandemic that has sickened millions globally and killed more than 100,000 Americans in four months. Against a scourge that is easily spread and difficult to treat, governmental PHE powers are unquestionably crucial. Absent extensive social distancing and testing measures, U.S. morbidity and mortality would be far higher.
Yet, the constitutional costs of national pandemic response efforts are considerable too. Some Americans espouse that the free exercise of religion has been jettisoned unconstitutionally in favor of draconian public health powers applied unfairly against religious establishments and contrary to their faith. Under this view, a distinct example of governmental overreach extends from limitations on indoor assemblies of greater than 10 persons. Though intended to prevent the spread of airborne disease, social distancing orders have shuttered churches, synagogues, mosques, and other establishments for months, inhibiting persons’ rights to assemble and exercise religious tenets and services.
Substantial litigation has arisen among religious enterprises seeking to re-open with support from President Trump, the Department of Justice (DOJ), and select state and local officials. Their argument collectively centers on Americans’ constitutional and RFRA rights grounded in the conception of separation of church and state as a core American value. Their position is clear-cut, politically popular (in some circles), and playing well with the media and local communities. However, it is also wrong.
Numerous Supreme Court cases historically affirm that First Amendment rights to assemble and exercise one’s religious beliefs are not absolute. These rights may be temporarily restricted during declared emergencies. Content-neutral public health laws that do not unjustifiably target specific religious groups or locales, and leave alternative channels open for communication, are constitutionally sound. Even in non-emergencies, freedom of religious expression does not include rights to engage in harmful behaviors, such as unwittingly spreading COVID-19 across congregations and communities.
Seemingly plausible constitutional arguments have emerged recently in California, Minnesota, Mississippi, Texas, and other states engaged in early phases of re-opening. Religious establishments in these jurisdictions remain closed or highly restricted even though some retail businesses, manufacturers, and others are allowed to open. DOJ demands that states reconsider policies that seemingly discriminate against religious entities.
Yet, as Supreme Court Chief Justice John Roberts recognized on May 29, 2020 in response to a church’s request to terminate California’s re-opening restrictions, religious establishments are legitimately distinguishable from other enterprises. Churches and other religious institutions allowing congregates to convene in enclosed places for relatively long periods of time present appreciably higher risks of communicating COVID-19 than patrons of other businesses (e.g., groceries, pharmacies, light retail). From a public health perspective, religious establishments are more like schools, theaters, or concert halls, all of which remain closed in many states. New CDC guidance regarding safe worship practices may help, but does not instantly authorize re-openings without precautions.
The COVID-19 pandemic presents significant challenges requiring an array of emergency public health powers that have recalibrated the balance of constitutional rights. Americans’ patience with significant infringements of revered rights to free exercise and other constitutional norms is understandably wearing thin. Yet, only through continued reliance on efficacious public health interventions can their health be protected. Seeking to regain unfettered access to religious establishments is popular, but preserving American lives is preeminent.