More Than a Mask: Stay-At-Home Orders and Religious Freedom

University of California, Hastings College of the Law University of California, Hastings College of the Law

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Faculty Scholarship

2021

More Than a Mask: Stay-At-Home Orders and Religious Freedom More Than a Mask: Stay-At-Home Orders and Religious Freedom

Dorit Rubinstein Reiss

UC Hastings College of the Law

, [email protected]

Madeline Thomas

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Dorit Rubinstein Reiss and Madeline Thomas,

More Than a Mask: Stay-At-Home Orders and Religious

Freedom

, 57

San Diego L. Rev.

947 (2021).

Available at: https://repository.uchastings.edu/faculty_scholarship/1856

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REISS&THOMAS_57-4 (DO NOT DELETE) 12/28/2020 8:18 PM

More Than a Mask: Stay-at-Home

Orders and Religious Freedom

DORIT RUBINSTEIN REISS*

MADELINE THOMAS**

ABLE OF CONTENTS

I. I

NTRODUCTION ........................................................................................ 947

II. C

OVID-19 AND STAY-AT-HOME ORDERS .................................................. 950

III. F

IRST AMENDMENT JURISPRUDENCE ........................................................ 954

IV. S

TAY-AT-HOME AND RELIGIOUS FREEDOM JURISPRUDENCE:

HE IS AND THE SHOULD .......................................................................... 961

A. Take-Aways from the Jurisprudence .............................................. 965

V. T

HE ESTABLISHMENT CLAUSE AND STAY-AT-HOME ORDERS .................. 968

VI. C

ONCLUSION ........................................................................................... 971

I. INTRODUCTION

From March 2020, the United States’ public health law universe was

dramatically transformed by measures taken to combat the new emerging

respiratory virus, SARS-CoV-2, which causes the disease COVID-19.

The virus emerged in December 2019, and cases arrived in the United States

Hervey Chair in Litigation, University of California, Hastings College of Law.

College of Law. We are grateful to Raena Waldman for excellent research assistance.

1. See Lawrence O. Gostin, Eric A. Friedman & Sarah A. Wetter, Responding to

Covid-19: How to Navigate a Public Health Emergency Legally and Ethically, H

ASTINGS

CTR. REP., Mar.–Apr. 2020, at 8, 8–12, https://onlinelibrary.wiley.com/doi/epdf/10.1002/

hast.1090 [https://perma.cc/MLT7-67BM].

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as early as January 2020; though federal public health acted earlier,

widespread public health measures were not taken until March 2020.

The San Francisco Bay Area’s counties were the first to issue widespread

shelter-in-place orders, operative from March 17, 2020.

By March 30,

2020, over half the states issued shelter-in-place or stay-at-home orders.

Many of these state and local measures have dramatic impacts on individuals’

freedom and daily lives. Balancing public health and rights in this situation

is not easy, and courts have an important, difficult role to play.

Predictably, legal challenges to these broad measures have already been

filed.

Among them were a variety of challenges claiming that stay-at-home

orders that apply to religious gatherings violate the First Amendment’s

guarantee of the free exercise of religion.

This Article addresses such claims.

This Article is unlikely to be published before the end of the current chapter

of stay-at-home orders and subsequent challenges. But the analysis is still

relevant: until the emergence of a COVID-19 vaccine—which will take some

time—new waves of the disease could lead to additional restrictive measures.

2. Daniel B. Jernigan, Update: Public Health Response to the Coronavirus Disease

2019 Outbreak–United States, February 24, 2020, 69

ORBIDITY & MORTALITY WKLY.

EP.

216,

216–18

(2020). As of February 28, 2020, the response to the pandemic was still

at the level of investigation and r esponse to ind ividual cases; the widespread social distancing

measures came l ater. See id.

3. See infra notes 4–6 and accompanying text.

4. Erin Allday, Bay Area Orders ‘Shelter in Place,’ Only Essential Businesses Open

in 6 Counties, S.F. C

HRONICLE (Mar. 16, 2020), https://www.sfchronicle.com/local-politics/

article/Bay-Area-must-shelter-in-place-Only-15135014.php [https://perma.cc/C9RQ-USRZ].

Allday refers to the Bay Area order as a “shelter in place order.” Id. Later orders used the

language “stay-at-home.” See, e.g., sources cited infra note 5. Although our Article mentions

both terms, in part because of the title the Bay Area counties used, “stay-at-home” orders

will be used going forward for consistency.

5. List: The 27 States that Now Have Stay-at-Home Coronavirus Orders, M

ERCURY

NEWS (Mar. 29, 2020, 1:07 PM), https://www.mercurynews.com/2020/03/29/coronavirus-

list-the-27-states-that-now-have-stay-at-home-orders/ [https://perma.cc/9BJU-3GCP]; Alicia

Lee, These States Have Implemented Stay-at-Home Orders. Here’s What that Means for

You, CNN (Apr. 7, 2020, 5:23 PM), https://www.cnn.com/2020/03/23/us/coronavirus-

which-states-stay-at-home-order-trnd/index.html [https://perma.cc/8AYJ-AJPX].

6. See Lawrence O. Gostin & Lindsay F. Wiley, Governmental Public Health

Powers During the COVID-19 Pandemic: Stay-at-Home Orders, Business Closures, and

Travel Restrictions, 323 J.

M. MED. ASS’N 2137, 2137–38 (2020).

7. See, e.g., Judicial Trends in Public Health, N

ETWORK FOR PUB. HEALTH L. (Apr.

2, 2020), https://www.networkforphl.org/resources/judicial-trends-in-public-health-april-

2%202020/?fbclid=IwAR1UEbd%20%209TRJDgPXxbayUQQ_dVF6HqxtzR8nl3Pu1Iq

GFh40Hf3MH9AGQzI4 [https://perma.cc/95RE-64M2].

8. See, e.g., Complaint, Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Super.

Ct. Mar. 17, 2020), https://www.courts.state.nh.us/caseinfo/pdf/civil/Sununu/031720Sununu-

complaint.pdf [https://perma.cc/P897-J2VN].

9. See Sam Meredith, Harvard Researchers Warn Social-Distancing Measures

May Need to Remain in Place into 2022, CNBC (Apr. 15, 2020, 7:15 AM), https://

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Further, COVID-19 is unlikely to be the only infectious disease threat the

United States faces. We have seen other threats of pandemic—for example,

SARS in 200

luckily controlled, H1N1 in 2009,

and MERS in 2012.

There is every reason to expect future pandemics, even if we cannot anticipate

their shape or breadth, or other public health threats. COVID-19’s stay-

at-home orders offer a precedent that may be used in future pandemics;

the limits imposed by the First Amendment are, therefore, worth exploring.

There are two parts to that discussion. The more obvious one is the tension

between the First Amendment’s Free Exercise Clause and stay-at-home

orders that seek to limit religious gatherings. But another, more nuanced

tension is between the Establishment Clause and stay-at-home orders that

explicitly exempt churches.

The challenge in exploring the Free Exercise Clause is two-fold. First,

changes to the composition of the Supreme Court raise the possibility that

current First Amendment jurisprudence may change in the near future

—

lower courts decisions that do not fit the current jurisprudence may end

up adopted as an alternative view, rather than seen as an error. Specifically,

current jurisprudence uses the framework of Employment Division v.

Smith, and that framework may be modified or rejected by the Supreme

Court in the near future—or not.

This Article identifies potential changes

to this jurisprudence—but also points out that such change is uncertain—

and provides a coherent approach under existing jurisprudence. Second,

the current approach federal courts take may not fit comfortably in states

www.cnbc.com/2020/04/15/coronavirus-study-warns-social-distancing-may-need-to-stay-

until-2022.html [https://perma.cc/HK3W-X37Y].

10. See C

TRS. FOR DISEASE CONTROL & PREVENTION, FACT SHEET: BASIC

INFORMATION ABOUT SARS 1 (2004), https://www.cdc.gov/sars/about/fs-SARS.pdf [https://

perma.cc/2CLQ-V6MW].

11. See 2009 H1N1 Pandemic (H1N1pdm09 virus), C

ENTERS FOR DISEASE CONTROL

& PREVENTION, https://www.cdc.gov/flu/pandemic-resources/2009-h1n1-pandemic.html

[https://perma.cc/N8QK-CY2H] (last reviewed June 11, 2019).

12. See About MERS, C

ENTERS FOR DISEASE CONTROL & PREVENTION, https://

www.cdc.gov/coronavirus/mers/about/index.html [https://perma.cc/XZ3K-E6X9] (last

updated Aug. 2, 2019).

13. See Adam Liptak, John Roberts Was Already Chief Justice. But Now It’s His Court,

N.Y. T

IMES (June 30, 2020), https://www.nytimes.com/2020/06/30/us/john-roberts-

supreme-court.html [https://perma.cc/659M-85K6].

14. See Emp’t Div. v. Smith, 494 U.S. 872, 878–79, 882 (1990).

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with a Religious Freedom Restoration Act (RFRA).

Taking that into

account, this Article suggests prescriptions that can be relevant both to

states following the federal approach to the Free Exercise Clause and for

states that adopted strict scrutiny through RFRAs.

This

Article proceeds in four parts. Part II describes the challenges

COVID-19 poses, states’ responses, and resulting lawsuits. Among other

things, it points out that inevitably stay-at-home orders draw some lines

and allow some activities. Part III explains the pre-existing jurisprudence

regarding the Free Exercise Clause, and where we are in terms of the law.

It suggests that under Smith, states have considerable leeway to enforce

orders that are generally aimed at gatherings against religiously-motivated

gatherings as well, even if the state allows other activities that are not

characterized by large gatherings in closed spaces. It addresses—and rejects—

a view that Smith is inapplicable if a law provides any exceptions, but

highlights that there are circumstances under which strict scrutiny should

apply to stay-at-home orders. It also describes the legal situation in states

with a RFRA. Part IV critically analyzes the jurisprudence thus far and

suggests general guidance for moving forward from two perspectives:

how states should write stay-at-home orders to comply with the legal

protections of religious freedom, and how courts should approach stay-at-

home orders on review. Lastly, Part V addresses whether stay-at-home

orders that exempt churches run afoul of separation of church and state,

and concludes that generally, they do not.

II. C

OVID-19 AND STAY-AT-HOME ORDERS

In response to COVID-19, the vast majority of states passed stay-at-

home orders. As of April 23, 2020, forty-two states have issued a stay-at-

home order, and within three of the states that have not—Oklahoma, Utah,

and Wyoming—several localities have issued stay-at-home orders.

Only

five states—North Dakota, South Dakota, Nebraska, Iowa, and Arkansas

—have no order, state-wide or otherwise.

The content of these orders

varies locally. Relevant to this paper, several states expressly exempt

15. See State Religious Freedom Restoration Acts, NAT’L CONF. ST. LEGISLATURES

(May 4, 2017), https://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx

[https://perma.cc/DL37-VJ7G].

16. Sarah Mervosh, Denise Lu & Vanessa Swales, See Which States and Cities Have

Told Residents to Stay at Home, N.Y. T

IMES (Apr. 20, 2020), https://www.nytimes.com/

interactive/2020/us/coronavirus-stay-at-home-order.html [https://perma.cc/3HVK-CSDT].

17. Id.

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religious services from the order.

Others do not. All of them allow some

activities to continue.

Shortly a

fter the start of stay-at-home orders, several lawsuits challenged

the application of stay-at-home orders to religious events and gatherings;

some resulted in temporary stays of the orders, while others were dismissed

or had temporary orders denied. On March 17, 2020, three New Hampshire

residents—David Binford, Holly Beene, and Eric Couture—sued Governor

Sununu of New Hampshire for issuing an emergency order on March 16.

The complaint had several arguments, both statutory and constitutional,

but among the arguments David Binford claimed that “The decree by the

governor of New Hampshire prohibits him being able to attend religious

services and right to practice his religion due to the fact that more than 50

people attend.”

Similarly, the complaint alleged that “Plaintiff Eric Couture

attends services 3 times a week at Bible

Baptist church in Nashua and teaches

Sunday school apologetics to th

e teens at his church. The order in q

uestion

violates his right to peacefully attend and worship God with other church

members and violates his conscience to do so.”

The New Hampshire executive order in question says:

In accordance with CDC guidelines, the following activities are hereby prohibited

within the State of New Hampshire:

Scheduled gatherings of 50 people or more for social, spiritual and recreational

activities, including but not limited to, community, civic, public, leisure, faith-

based, or sporting events; parades; concerts; festivals; conventions; fundraisers;

and similar activities. This prohibition does not apply to the General Court or to

the day-to-day operations of businesses.

The order clearly aims to be expansive and cover most gatherings, regardless

of the goal. Even though it does mention “faith-based activities,” it is not

singling out religious gatherings, as its other sections place restrictions on,

18. See, e.g., Mike Cason, Gov. Kay Ivey Issues Stay-at-Home Order Effective

Saturday, AL.COM (Apr. 3, 2020), https://www.al.com/news/2020/04/gov-kay-ivey-to-

give-update-on-coronavirus-response.html [https://perma.cc/7F47-KXRP].

19. Complaint at 1, Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Super. Ct.

Mar. 17, 2020), https://www.courts.state.nh.us/caseinfo/pdf/civil/Sununu/031720Sununu-

complaint.pdf [https://perma.cc/DB7L-NL2V].

20. Id. at 3.

21. Id.

22. N.H. Emergency Order No. 2 Pursuant to Exec. Order No. 2020-04 (Mar. 16,

2020), https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-

order-2.pdf [https://perma.cc/4L53-QNHJ].

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for example, restaurants.

New York’s order on the topic is even more

general: it prohibited gatherings, withou

t mentioning religious gatherings,

simply saying, “Non-essential gatherings of individuals of any size for

any reason (e.g. parties, celebrations or other social events) are canceled

or postponed at this time.”

Georgia’s order also directed that “no business,

establishment, corporatio

n, non-profit corporation, organization, or county or

municipal government shall allow more than ten (10) persons to be gathered

at a single location if such gathering requires persons to stand or to be

seated within six (6) feet of any other person.”

An initial Florida order

forbade all “social or recreational gatherings of 10 or more people.”

All of these orders had exceptions to staying at home, including, for

example, going to grocery stores.

Several outbreaks centered on religious services highlighted the reason

for including religious services in the closures. For example, a church service

in Arkansas attended by ninety-two people led to an outbreak of thirty-

five cases in churchgoers, another twenty-six in the community, and four

deaths, three of which were churchgoers.

Other outbreaks were also traced

to churches, though none as large or lethal.

As we learn more about

23. See id. (“Food and beverage sales are restricted to carry-out, delivery, curbside

pick-up, and drive-through only, to the e xtent permitted by current law. No onsite consumption

is permitted, and all onsite consumption areas in restaurants, diners, bars, saloons, private

clubs, or any other establishment that offers food and beverages for sale shall be closed to

customers.”).

24. N.Y. Exec. Order No. 202.10 (Mar. 23, 2020), https://www.governor.ny.gov/news/

no-20210-continuing-temporary-suspension-and-modification-laws-relating-disaster-

emergency [https://perma.cc/A54Z-UBRM] (order has since been renewed).

25. Ga. Exec. Order No. 03.23.20.01 (Mar. 23, 2020), https://gov.georgia.gov/

executive-action/executive-orders/2020-executive-orders [https://perma.cc/3RXC-KUK8].

The executive order is described as “[l]imiting large gatherings statewide, ordering ‘shelter

in place’ for specific populations, and closing bars and nightclubs in Georgia for fourteen

days.” 2020 Executive Orders, G

OVERNOR BRIAN P. KEMP: OFF. GOVERNOR, https://gov.

georgia.gov/executive-action/executive-orders/2020-executive-orders [https://perma.cc/

GFP2-H7N8].

26. Fla. Exec. Order No. 20-83 (Mar. 24, 2020), https://www.flgov.com/wp-content/

uploads/orders/2020/EO_20-83.pdf [https://perma.cc/6NWZ-5CZC].

27. See, e.g., Ga. Exec. Order No. 04.02.20.0 (Apr. 2, 2020), https://gov.georgia.gov/

executive-action/executive-orders/2020-executive-orders [https://perma.cc/3RXC-KUK8]

(permitting the obtaining of necessary supplies, engaging in essential health and safety

activities, and engaging in socially distanced outdoor exercise).

28. Allison James et al., High COVID-19 Attack Rate Among Attendees at Events

at a Church–Arkansas, March 2020, 69 M

ORBIDITY & MORTALITY WKLY. REP. 632, 633

(May 19, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6920e2-H.pdf [https://

perma.cc/D42Y-7NMA].

29. See, e.g., Stephanie Becker, At Least 70 People Infected with Coronavirus Linked

to a Single Church in California, Health Officials Say, CNN

(Apr. 4, 2020, 11:39 AM),

https://www.cnn.com/2020/04/03/us/sacramento-county-church-covid-19-outbreak/index.

html [https://perma.cc/4U3E-NP6X]; Richard Burkard, Church at Center of COVID-19

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COVID-19, several factors that clearly increase risk are large gatherings,

being indoors, and lengthy contact—conversely, smaller groups, being

outdoors, and limited duration contacts are less risky.

These factors

clearly apply to many religious gatherings—just

as they apply to larg e

university classes, concerts, theatre, sport events, and other venues.

In spite of this risk, some states e

xpressly exempted religious gatherings

from their restrictions. Ohio’s stay-at-home order, after prohibiting “[a]ll

public and private gathering of any number of people occurring outside a

single household and connected property,” specified that “[t]his Section

does not apply to religious facilities, entities and groups and religious

gatherings.”

Other states allowed at least some religious services—

for

example, Alabama allowed them for less than ten

people or as drive-

through services.

As mentioned, several lawsuits have

been filed against stay-at-home

orders claiming they violate the First Amendment’s freedom of religion

guarantee. We listed every decision we could find online in a Google

spreadsheet.

We are not aware of any lawsuits against stay-at-home orders

exempting churches.

Outbreak Responds, MESSENGER (Apr. 7, 2020), https://www.the-messenger.com/news/

local/article_59dcb9b2-063a-56fe-a89a-e72ee157483f.html [https://perma.cc/FDP6-3G3A];

Coronavirus Outbreaks Reported at Some Churches with In-Person Services, F

OX 8 (May,

21, 2020, 11:27 AM), https://www.fox8live.com/2020/05/21/coronavirus-outbreaks-reported-

some-churches-with-in-person-services/ [https://perma.cc/YA2B-WH9C].

30. Daniela Hernandez, Sarah Toy & Betsy McKay, How Exactly Do You Catch

Covid-19? There Is a Growing Consensus, W

ALL ST. J. (June 16, 2020, 10:39 AM), https://

www.wsj.com/articles/how-exactly-do-you-catch-covid-19-there-is-a-growing-consensus-

11592317650?fbclid=IwAR0k4y0U63Eb8XlzQyciNZhH_X_PGhqVnkZNVyyUPINoU

mfeeq1dj8j2eFE [https://perma.cc/2GR9-JG8M].

31. Ohio Dep’t of Health, Director’s Stay Safe Ohio Order (Apr. 30, 2020), https://

coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf? [https://perma.cc/

JSP5-J8YU].

32. Ala. Dep’t of Health, Order

the State Health Officer Suspending Certain Public

Gatherings Due to Risk of Infection by COVID-19 (Apr. 3, 2020), https://governor.alabama.

gov/assets/2020/04/Final-Statewide-Order-4.3.2020.pdf [https://perma.cc/FK32-Q3KC].

33. Dorit R. Reiss & Madeline Thomas, COVID-19 Freedom of Religion Cases

(unpublished spreadsheet), https://docs.google.com/spreadsheets/d/1w69aTvolgoMOZ6x

LSm8WjbFIdXZLpunnNhM3NNyXMEM/edit#gid=593149470 [https://perma.cc/8ATN-

TXPL].

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III. FIRST AMENDMENT JURISPRUDENCE

The strength of claims challenging stay-at-home orders under the First

Amendment depends on two things. First, the facts of the case, including

the content of the challenged order and the practices sought or found in

violation. Second, the standard used to evaluate the order. The latter, in

turn, also depends on several things.

The current federal jurisprudence standard for assessing when a religious

exemption is required is Employment Division v. Smith, under which states

do not have to provide religious exemptions when they enact a law that is

neutral on its face and of general applicability.

Under Smith, as long as

the law does not target religion and is not motivated by hostility to

eligion,

it can apply even if it burdens religion.

Smith’s approach to the First

Amendment was a change from previous jurisprudence and was not

with

out

its critics at the time.

Nonetheless, there are several reasons to see Smith

as difficult to completely overturn, eve

n in the face of recently decided

cases suggesting a potentially increased sympathy for protecting religious

views by a majority of Su

preme Court Justices.

Smith was written by

Justice Scalia, a leading conservative.

The basis for Smith was, among

other things, concern that any law would be vuln

erable if any person’s

interpretation of religion justified waivers of laws that person claimed

religious objection to—with the only barrier being a subjective sincerity

determination—and the potential expansion of the doctrine in ways that

undermine public policy.

These concerns can appeal even to those with

strong religious views.

The Supreme Court limited Congress’s attempts to overturn Smith by

the federal Religious Freedom Restoration Act, leaving states free,

from a constitutional standpoint, to pass general laws affecting religion

34. Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee,

455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)).

35. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–

32 (1993) (“[A] law that is neutral and of general applicability need not be justified by a

compelling governmental interest even if the law has the incidental effect of burdening a

particular religious practice . . . [but a] law failing to satisfy these requirements must be

justified by a compelling governmental interest and must be narrowly tailored to advance

that interest.” (citing Emp’t Div. v. Smith, 494 U.S. 872 (1990)); see also Masterpiece

Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1729–32 (2018) (providing

additional precedent).

36. See Kenneth Marin, Employment Division v. Smith: The Supreme Court Alters

the State of Free Exercise Doctrine, 40 A

M. U. L. REV. 1431, 1431–33 (1990).

37. See Paul Horwitz, The Hobby Lobby Moment, 128 H

ARV. L. REV. 154, 167–71

(2014); William P. Marshall, Extricating the Religious Exemption Debate from the Culture

Wars, 41 H

ARV.

J.L.

PUB.

POL’Y 67, 74–77 (2018).

38. Marshall, supra note 37, at 68.

39. See id. at 69–72.

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without a religious exemption.

But shortly after Smith, in Church of

Lukumi Bab

alu Aye, Inc. v. City of Hialeah in 1993, the Court drew

one line: it ruled that laws that are not neutral and generally applicable

will s

till be held to strict scrutiny.

In Lukumi, the City of Hialeah, Florida

enacted a set of ordinances clearly a

imed at stopping a church belonging to

the Santeria religion from engaging in ritual animal sa

crifice.

Although

the language of the ordinances was neutral, the Court

ound

from

the

record

and the city’s prior resolutions that their clear objective was to

prevent ritual sacrifice by this specific church, and therefore, the ordinances

were not neutral: they were targeting a single church’s unique religious

practice.

The natural reading of Lukumi on its facts is that laws or

ordinances

motivated by hostility to religion are subje

ct to strict scrutiny,

even if they are neutral on their face.

That is not, however, the only available interpretation. In FOP Newark

Lodge 12 v. City of Newark, a panel of the Third Circuit Court of Appeals

—i

ncluding current Supreme Court Justice Alito, then a circuit judge—

ruled that Smith does not to apply to cases where the statute in question

included individualized exceptions on secular grounds, finding that the

Court in Lukumi held just that—if there are secular exceptions to the

statute, the lack of religious exception would be subject to strict scrutiny.

That interpretation has not been adopted by the Supreme Court, and was

rejected expressly by several federal courts.

It was, however, adopted

by some lower courts, including subsequent Third Circuit decisions.

40. City of Boerne v. Flores, 521 U.S. 507, 511, 534–36 (1997); see Matthew A.

Brown, Coronavirus and Church Closures: Will the Covid-19 Gathering Bans Survive Free

Exercise Challenges? 5–6 (Apr. 21, 2020) (unpublished comment), https://ssrn.com/

abstract=3580135 [https://perma.cc/6M2C-S5JP].

41. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–

32 (1993).

42. Id. at 524–28.

43. Id. at 533–36.

44. Id. at 534–36.

45. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d

359, 364–66 (3d Cir. 1999).

46. E.g., Grace United Methodist Church v. City of Cheyenne, 427 F.3d 775, 784

(10th Cir. 2005); Brock v. Boozman, No. 4:01CV00760 SWW, 2002 WL 1972086, at *8

(E.D. Ark. Aug. 12, 2002); Booth v. Maryland, 207 F. Supp. 2d 394, 398 (D. Md. 2002).

47. See, e.g., Blackhawk v. Pennsylvania, 381 F.3d 202, 206–09, 212 (3d Cir.

2004); Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 167–72 (3d Cir. 2002);

InterVarsity Christian Fellowship/USA v. Univ. of Iowa, 408 F. Supp. 3d 960 (S.D. Io

2019); Cunningham v. City of Shreveport, 407 F. Supp. 3d 595, 605, 607–08 (W.D. L

2019); Stormans Inc. v. Selecky, 844 F. Supp. 2d

1172, 1199 (W.D. Wash. 2012); Riba

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was also reiterated by Justice Gorsuch in his concurrence in Masterpiece

Cakeshop.

In one article it was suggested as a potential alternative if the

Court decides to limit, but not overrule,

Smith.

We find this approach unconvincing. First, it is not well grounded in

Smith. Smith did distinguish Sherbert v. Verner, on the ground that the

standard in Sherbert required individual assessment—the standard was

that an individual is not eligible for unemployment benefits if “without

good cause” the individual quit work.

That is not quite the same as having

generalized, broad exemptions. Even more importantly, that language was

followed by language that suggested a complete overturning of Sherbert,

and indeed, following decisions interpreted Smith as similarly abandoning

Sherbert.

The Court said:

We conclude today that the sounder approach, and the approach in accord with

the vast majority of our precedents, is to hold the test inapplicable to such challenges.

The government’s ability to enforce generally applicable prohibitions of socially

harmful conduct, like its ability to carry out other aspects of public policy, “cannot

depend on measuring the effects of a governmental action on a religious objector’s

spiritual development.” . . . To make an individual’s obligation to obey such a

law contingent upon the law’s coincidence with his religious beliefs, except where the

State’s interest is “compelling”—permitting him, by virtue of his beliefs, “to become

a law unto himself,” . . . —contradicts both constitutional tradition and common

sense.

The interpretation fits even less comfortably with Lukumi. The reference

to exceptions in Lukumi was not to argue that Smith is inapplicable where

other exceptions exist; rather, the Court merely pointed out that the number

and extent of exceptions left the ordinances applicable only to the Church

of Lukumi Babalu, showing that hostility to the Santerian religion was the

city’s true motivation.

Further, practically all laws have some exceptions. Smith was about as

close to a law without exception as you get: it was a general policy not to

v. Las Vegas Metro. Police Dep’t, No. 2:07–CV–1152–RLH–LRL, 2008 WL 3211279, at

*4 (D. Nev. Aug. 6, 2008).

48. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719,

1737 (2018) (Gorsuch, J., concurring).

49. See Brown, supra note 40, at 16–17.

50. Emp’t Div. v. Smith, 494 U.S. 872, 884–85 (1990) (distinguishing Sherbert v.

Verner, 374 U.S. 398 (1963)).

51. Paul S. Zilberfein, Employment Division, Department of Human Resources of

Oregon v. Smith: The Erosion of Religious Liberty, 12 P

ACE L. REV. 403, 427–28 (1992).

52. Smith, 494 U.S. at 885 (citations omitted) (first quoting Lyng v. Nw. Indian

Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988); then quoting Reynolds v. United

States, 98 U.S. 145, 167 (1878)).

53. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534–

35 (1993).

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use illegal drugs or alcohol by counselors.

Even there, however, there

was a line between drugs defined as illegal and those that were not. And

the examples positively cited in Smith did not fall into that category—for

example, United States v. Lee addressed refusal to pay social security tax,

and there were other exceptions from that.

In Brock v. Boozman, the

court suggested that exemptions are a problem if they are adopted because

of a value judgment in favor of a secular motivation, and against a religious

one.

Exemptions that are in line with the general purpose of the act, and

do not make a value judgment preferring secular motivations over religious

nes, are not a problem.

We believe this offers a reasonable interpretation

of FOP, and preserves the core of Smith while preventing hidden discrimination

against religious values. We would say that laws that draw lines based on

general, reasonable, neutral factors are not less neutral if they have some

broad exemptions that fit such general criteria. We realize that this may allow

the policy maker to tailor measures to disguise hostility to religion under

a façade of neutrality, but—as in Lukumi—expect such deliberate efforts

to leave traces that can be demonstrated, and if that is the situation, Smith

would not apply. There is no good basis to see most state stay-at-home orders

that way—as we point out, if anything, some lean th e other way. Smith allows

neutral lines to be drawn, though—as we discuss below—there are limits

to those lines.

Reflecting

this, in a recent set of decisions examining claims that removing

nonmedical exemptions from school immunization mandates violates the

Free Exercise Clause of the First Amendment, several courts concluded

that the requirements are subject to Smith and constitutionally valid—

even though these courts make clear distinctions elsewhere.

54. See Zilberfein, supra note 51, at 424–25.

55. See United States v. Lee, 455 U.S. 252, 258–62 (1982).

56. Brock v. Boozman, No. 4:01CV00760 SWW, 2002 WL 1972086, at *7–8 (E.D.

Ark. Aug. 12, 2002).

57. Id.

58. See, e.g., Brown v. Smith, 235 Cal. Rptr. 3d 218, 224–25 (Cal. Ct. App. 2018);

Whitlow v. California, 203 F. Supp. 3d 1079, 1086 n.4 (S.D. Cal. 2016); Love v. State

Dep’t of Educ., 240 Cal. Rptr. 3d 861, 865 (Cal. Ct. App. 2018); F.F. ex rel. Y.F. v. New

York, 108 N.Y.S.3d 761, 772–73 (N.Y. Sup. Ct. 2019); Dorit Rubinstein Reiss, Litigating

Alternative Facts: School Vaccine Mandates in the Courts, 21 U.

A. J. CONST. L. 207,

240–43 (2018). Smith was not the only relevant law, and these cases may stand even if

Smith is overturned. School mandates jurisprudence stands on more than Smith. See Reiss,

supra, at 240–43.

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Supreme Court Justices raised questions about the continuing viability

of Smith, and a case currently before the Supreme Court may lead the Court

to reexamine Smith.

However, recent Supreme Court cases that ended

with favorable outcomes for those challenging policies that allegedly interfered

with their religion were carefully and intentionally decided on narrow grounds.

The decisions ultimately reaffirmed—rather than overturned—Smith,

suggesting that it is far from clear that Smith will be fully overturned.

The first of these cases was Burwell v. Hobby Lobby, in which the Court

found that requiring privately held corporations, acting as employers, to

cover certain contraceptives for their employees violated the federal

Religious Freedom Restoration Act (RFRA).

Importantly, the decision

interpreted the case under the RFRA—rather than the First Amendment—

and the majority explicitly reiterated that Smith was the Court’s interpretation

of the First

Amendment.

In the later Masterpiece

Cakeshop case, a majority of the Court overturned

the Colorado Civil Rights Commission’s sanction against a baker who

refused to bake a wedding cake for a same-sex couple.

Here, too, the

Supreme Court did not overturn

Smith, instead finding that the commission’s

mments showed hostility to religion.

We can expect efforts to interpret

this ruling broadly—for example, anti-vaccine groups in New York tried

to claim that the state legislature’s repeal of the religious exemption to its

school immunization mandate was motivated by religious hostility.

But

attempting to interpret a precedent broadly or narrowly is routine legal

practice, and it is the role of courts to avoid broadening the decision in a

way that would undermine any law that could have an impact on religion,

to the point of overturning

Smith or sacrificing the policies protected by

it. New York courts, so far, have rejected the effort to apply Masterpiece

59. See Fulton v. City of Philadelphia, 140 S. Ct. 1104 (2020) (cert. granted); Fulton

v. City of Philadelphia, Pennsylvania, SCOTUS

BLOG, https://www.scotusblog.com/case-

files/cases/fulton-v-city-of-philadelphia-pennsylvania [https://perma.cc/D88T-JS43] (describing

the issues the case raises for the Court to consider).

60. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 692, 736 (2014). Hobby

Lobby has been strongly criticized for its potentially harmful effect on contraceptive rights

and discrimination.

See Alex J.

Luchenitser,

A New Era of Inequality?

Hobby Lobby and

Religious Exemptions from Anti-Discrimination Laws, 9 H

ARV. L. & POL’Y REV. 63, 63–

64 (2015); Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38

ARV. J.L. & GENDER 35, 92–95 (2015). That, however, is somewhat beyond the scope of

this specific Article.

61. See Hobby Lobby, 573 U.S. at 693.

62. See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719,

1723–24 (2018).

63. See id. at 1729–32.

64. See F.F. ex rel. Y.F. v. New York, 108 N.Y.S.3d 761, 767–68 (N.Y. Sup. Ct. 2019).

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Cakeshop to a change of law that was motivated by public health, and we

can expect that to continue.

The general rule that a policy motivated by hostility to religion cannot

avoid scrutiny just by cloaking itself came out of Lukumi, shortly after

Smith.

There are good grounds to stop state policies that target religion,

because that is directly within the type of religious oppression the Free Exercise

Clause was created to prevent. That goal is not in tension with Smith.

Since Mast

erpiece Cakeshop, there has been a change in the Supreme

Court’s composition. Justice Kennedy—who wrote the Masterpiece Cakeshop

opinion—retired in 2018, and Justice Brett Kavanaugh—who appears in

favor of overturning Smith—replaced Justice Kennedy on the Court.

However, it is still not clear that there is a majority for overturning Smith

on the Court; in the most recent decisions on point, the c

ourt seemed inclined

to u

phold

ith.

The Court may preserve or limit Smith, perhaps following

Justice Alito’s FOP approach;

however, at this point, we cannot assume

that. The most recent Supreme Court decision on the First Amendment—

Espinoza v.

Montana Department of

Revenue, decided June 30, 2020—

did not generally address Smith, since the situation in question was one

where a state expressly refused a benefit to religious institutions, clearly

treating religion differently.

Further, while some of the concurrences—

especially those by Justice Thomas and Justice Gorsuch—suggested an

inclination to depart from the Smith approach

and broaden the connection

between state and religion, the fact that those were separate concurrences

suggests that there is no majority of the

court endorsing those views.

Since Smith, a significant minority of states adopted a religious freedom

restoration act (RFRA), which requires applying strict scrutiny when a

65. See id. at 774–75.

66. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534–

35 (1993) (“Official action that targets religious conduct for distinctive treatment cannot

be shielded by mere compliance with the requirement of facial neutrality.”).

67. See Dyan Matthews, America under Brett Kavanaugh, V

OX (Oct 5, 2018, 3:50

PM), https://www.vox.com/2018/7/11/17555974/brett-kavanaugh-anthony-kennedy-supreme-

court-transform [https://perma.cc/HRK6-WE95].

68. We discuss a recent Supreme Court decision about stay-at-home orders and

churches below, see infra Part IV, because it fits better.

69. See supra notes 45–49 and accompanying text.

70. See Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2251, 2255, 2260–

63 (2020).

71. See id. at 2263–67 (Thomas, J., concurring); id. at 2267–74 (Alito, J., concurring);

id.

at 2274–78 (Gorsuch, J., concurring).

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statute substantially burdens religion.

If the Supreme Court overturns

Smith, or if a state adopts a RFRA, the applicable standard to any state order

affecting religious establishments would decidedly be strict scrutiny.

There are the

refore at least two, possibly more, standards we need to

consider. First, we need to address the existing Smith/Lukumi framework.

However, since the existence of state RFRAs means that at least some

states will apply strict scrutiny, we will address that alternative as well—

and our discussion of it will also cover a situation in which the Supreme

Court overturns Smith.

Under the Smith/Lukumi framework, the most important question for

courts facing stay-at-home orders would be whether they are, in fact,

of general applicability and neutral on their face.

If they are, a religious

exemption is no

t required.

If there are any indications

hostility to

religion, strict scrutiny will

apply.

Under our analysis, just the existence

of other exceptions would

not take us out of

Smith, but if similar activities

to religious ones are permitted while religious activities are not, the law

may still violate the standard.

COVID

-19 is potentially lethal and can cause severe disease in a substantial

number of the cases, therefore states will likely have little trouble meeting

the first prong of strict scrutiny, showing a compelling state interest.

Traditionally, controlling or preventing infectious diseases that cause

mortality and significant morbidity was found to be a compelling state

interest.

The challenge in withstanding strict scrutiny will be whether

the order in question is the “least restrictive means” of achieving that

interest.

In that, the content of the order will matter substantially. This

is reflected, in part, in the way courts have already approached existing

orders. We turn to that now.

72. See State Religious Freedom Restoration Acts, NAT’L CONF. ST. LEGISLATURES

(May 4, 2017), https://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx

[https://perma.cc/E2HG-VLX2]. As of 2017, twenty-one states had them. Id.

73. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531

(1993) (citing Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990)).

74. See id. (citing Smith, 494 U.S. at 879).

75. Id. at 533 (citing Smith, 494 U.S. at 878–79).

76. Reiss, supra note 58, at 238–39.

77. Id. at 238; see also Brock v. Boozman, No. 4:01CV00760 SWW, 2002 WL

1972086, at *8 (E.D. Ark. Aug. 12, 2002) (emphasizing that public health, in relation to

the Hep. B vaccine, is an extremely important government interest, indicating that it would

easily satisfy even strict scrutiny).

78. See Reiss, supra note 58, at 238.

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IV. STAY-AT-HOME AND RELIGIOUS FREEDOM JURISPRUDENCE:

HE IS AND THE SHOULD

The cases across the nation vary. As mentioned, we provide a detailed

list of them in a separate spreadsheet, and do not think this paper requires

that.

Instead, we will try to map the cases here in broader strokes.

While these suits are widespread across the nation, and thus differ

depending on the text of the specific challenged order, the arguments are

often similar. The strongest and most consistent claim by challengers is

that the COVID-19 stay-at-home orders display a governmental distrust

in places of worship to abide by social distancing and other public health

guidelines, and that they treat these establishments worse than they treat

others. Even the most general of orders will have exceptions for some

activities deemed essential—and, while the specific facts and language of

the orders mattered, individual judges also differed in the weight they gave to

the existence of such exceptions. Below, we present a range of approaches

by different courts in different situations.

The argument that exceptions make stay-at-home orders non-neutral

prevailed in several cases. Most problematically, Judge Broomes from

the District Court in Kansas used it when granting a TRO against the Kansas

order in First Baptist Church.

The Kansas Governor’s challenged stay-

at-home order began with a general provision prohibiting mass gatherings

—gatherings of more than ten—in “auditoriums, theaters, movie theaters,

museums, stadiums, . . . and churches or other religious facilities.”

There,

churches were just part of a long list. The

section that followed was specific

to churches:

With regard to churches or other religious services or activities, this order prohibits

gathering of more than ten congregants or parishioners in the same building or

confined or enclosed space. However, the number of individuals—such as preachers,

lay readers, choir or musical performers, or liturgists—conducting or performing

a religious service may exceed ten as long as those individuals follow appropriate

safety protocols, including maintaining a six-foot distance between individuals

and following other directives regarding social distancing, hygiene, and other

efforts to slow the spread of COVID-19.

79. See Reiss & Thomas, supra note 33.

80. See First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 U.S. Dist. LEXIS

68267, at *24–30 (D. Kan. Apr. 18, 2020).

81. Kan. Exec. Order No. 20-18 (Apr. 7, 2020), https://governor.kansas.gov/wp-

content/uploads/2020/04/20-18-Executed.pdf [https://perma.cc/WKU4-KCY4].

82. Id.

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The court ruled that this fit better within the legal framework set out in

Lukumi than that of Smith. Judge Broomes said:

In this case, EO 20-18 and EO 20-25 expressly purport to restrict in-person

religious assembly by more than ten congregants. In that sense, they are not facially neutral.

Defendant asserts that despite the express restrictions imposed on religious assembly,

the laws are facially neutral because they apply as well to a much broader swath

of secular activity in addition to the overt limitations placed on church gatherings.

Nevertheless, while these executive orders begin with a broad prohibition against

mass gatherings, they proceed to carve out broad exemptions for a host of secular

activities, many of which bear similarities to the sort of personal contact that will

occur during in-person religious services. Lukumi indicates that a court should

evaluate these exemptions in assessing a law’s neutrality.

The Kansas order was explicitly designed to limit all large gatherings,

for a specific public health purpose, and listed religious services as just

one of a broad range of activities to be limited.

This situation is very, very

different from that at issue in Lukumi, where the City’s measures were clearly

imed at limiting the practices of a church belonging to the Santeria religion.

The mere mentioning of religion, among a long list of other secular activities,

all of which are characterized by large gatherings, does not entail that a given

measure be classified as hostile to religion. This is especially the case when

the order was the result of a real, objective public health emergency—

something that did not exist in Lukumi.

If anything, the section specific to religious services can be read as

charitable to religion, as it creates an exception not offered to other types

of gatherings. This seemingly better treatment for religion may raise questions

under the Establishment Clause—raising the specter of state over-involvement

in religion—but not under the Free Exercise Clause. Analogizing the Kansas

order to the measures challenged in Lukumi, as similarly hostile to religion

is, in our view, misapplying the jurisprudence or incorrectly characterizing

the facts.

Maryville Baptist Church v. Beshear, where an injunction was granted

in part to the challenged Kentucky order, is more easily defensible.

The

Kentucky orders prohibited mass gatherings, including for “faith-based”

activities, but carved out “life-sustaining” exceptions in which some businesses

—i.e., law firms, laundromats, liquor stores, and gun shops—were allowed

to operate so l

ong as they comply with social distancing guidelines.

The

83. First Baptist Church, 2020 U.S. Dist. LEXIS 68267, at *17–18.

84. See Kan. Exec. Order No. 20-18.

85. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534–

35, 538, 540–42 (1993).

86. See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 614–15 (6th Cir.

2020).

87. See id. at 614.

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Sixth Circuit found discrimination here because these “life-sustaining”

exceptions “do not permit soul-sustaining group services of faith organizations,

even if the groups adhere to all the public health guidelines required of

essential services and even when they meet outdoors.”

This argument is much stronger. “Faith-based” activities were clearly

excluded from the list of exceptions that used the value-laden language

of “life-sustaining” activity.

Whether religion should be considered

“life-sustaining” is a charged question drawing on one’s values, and

churches have a plausible argument that seeing a broad array of secular

activities, including liquor and gun stores, as life-sustaining but not religious

ones, and allowing the former but not the latter, involves a value judgment.

We therefore agree with the Sixth Circuit that a law prohibiting drive-in

religious services that follow social distancing requirements, but allowing

other drive-in services like liquor stores, laundromats, and gun stores because

they are “life sustaining” is not generally applicable, nor neutral on its face.

Accordingly, the law does not fall under Smith, and is subject to strict

scrutiny.

Further, dri

ve-through situations do not involve gatherings, and people

are not close together. Unless a state can point to a meaningful difference

between the situations that make religious drive-throughs more risky than

other drive-through situations, it has no good basis to treat them differently.

Contrast that to the Binford v. Sununu order.

In upholding the New

Hampshire Governor’s emergency order under both federal and state

constitutional protections, the court held:

As established above, Emergency Order #2 is content neutral. Nothing in

Emergency Order #2 suggests that it is intended to target any religion or specific

religious practice. While a ban on scheduled gatherings of 50 or more people

may have an impact on the ability for a congregation to assemble at church, the Court

concludes that such an impact is merely incidental to the neutral regulation and is

otherwise reasonable given the limited duration of the order and public health

threat facing the citizens of this State.

We agree with the court. General orders like the ones in New Hampshire,

passed in response to a documented public health emergency, cannot be

reasonably seen as motivated by hostility to religion, and should thus be

88. Id.

89. See Ky. Exec. Order No. 2020-257 (Mar. 25, 2020).

90. Binford v. Sununu, No. 217-2020-cv-00152, 2020 N.H. Super. LEXIS 20 (N.H.

Super. Ct. Mar. 25, 2020).

91. Id. at *28.

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examined under Smith and, given the deferential standard and the public

health emergency, upheld.

The possibility that other judges may misapply Smith and Lukumi the

way the court in First Baptist Church did is concerning, especially since

we are, again, seeing quite a few of these cases.

On May 29, 2020, the Supreme Court addressed the issue, rejecting an

injunctive relief against California Governor Newsom’s order limiting

church activities.

The order—a revision of a previous, more restrictive

order—limited attendance at “places of worship to 25% of building capacity

or a maximum of 100 attendees.”

The Supreme Court’s majority simply

rejected the request for an injunction, but in a concurrence, Chief Justice

Roberts found that the restrictions are

consistent with the Free Exercise Clause of the First Amendment. Similar or

more severe restrictions apply to comparable secular gatherings, including lectures,

concerts, movie showings, spectator sports, and theatrical performances, where

large groups of people gather in close proximity for extended periods of time.

And the Order exempts or treats more leniently only dissimilar activities, such as

operating grocery stores, banks, and laundromats, in which people neither congregate

in large groups nor remain in close proximity for extended periods.

In a dissent joined by Justices Thomas and Gorsuch, Justice Kavanaugh

wrote that the state’s choice to allow some activities requires meeting a

strict scrutiny standard when setting limits on religion. Justice Kavanaugh

stated:

[A]bsent a compelling justification (which the State has not offered), the State

may not take a looser approach with, say, supermarkets, restaurants, factories,

and offices while imposing stricter requirements on places of worship. [¶] The

State also has substantial room to draw lines, especially in an emergency. But as

relevant here, the Constitution imposes one key restriction on that line-drawing:

The State may not discriminate against religion.

We find Chief Justice Roberts’s argument more compelling. California’s

distinction was, in fact, between places where people gather closely for

extended periods and places where people pass through.

Towards places

of gathering, the state’s order was facially neutral, and should be approached

as such. Without allowing states limiting gatherings to apply those limits

to all gatherings, courts are requiring those states to put their populations

92. See Reiss & Thomas, supra note 33.

93. See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (mem.).

94. Id. at 1613 (Roberts, C.J., concurring).

95. Id.

96. Id. at 1615 (Kavanaugh, J., dissenting).

97. See id. at 1613 (Roberts, C.J., concurring).

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at risk. Limiting gatherings for gathering’s sake is not targeted at religion

and should not be considered hostile.

A. Take-Aways from the Jurisprudence

Conclusions from the legal analysis above apply to two situations. First,

states should be mindful of the legal limits in crafting orders that apply to

religious establishments; second, courts should approach orders crafted

during an emergency with a practical, realistic frame of mind.

The goal of stay-at-home orders is to reduce the spread of COVID-19

and its attendant harms—potential sickness, long-lasting effects, and deaths.

As a first step, states should tailor the requirements to the need, and less

restrictive measures are better than more restrictive ones, even in a crisis.

In other words, if the concern is that large gatherings increase transmission,

large gatherings should be limited, but smaller gatherings, or forms of

gatherings that do not pose the same risk, can be allowed. An order that

prohibits gatherings of “more than fifty people” or limits gatherings to a

number that allows for “social distancing between members of different

households,” and applies this to any type of gathering, is more directly

aimed at that goal and less restrictive than a complete ban on any gathering

of any size. An order that allows gatherings via drive-through, when people

stay in cars, but limits in-person gathering by size, is more likely to be upheld

than an order that also prohibits drive-in. And this order allows for consistency

across diverse types of gathering. Note that these recommendations are

relevant whether a Smith framework is used or a strict scrutiny one: for

Smith, a general framework helps uphold an order, and a more tailored

approach makes the order more reasonable. Under strict scrutiny, closer

tailoring can help meet the least restrictive means requirement.

This

approach also fits what seems to have been behind the majority in South

Bay United Pentecostal Church—and was clearly at the basis of Chief Justice

Roberts’s concurrence.

100

In a Smith jurisdiction, grouping activities by level of risk—rather than

comparing secular and religious venues or practices—can more clearly

signal that the rules are not targeting religion. A focus on “any gathering

over fifty people” is general, and goes directly to the heart of a factor

98. See Lindsay F. Wiley, Public Health Law and Science in the Community Mitigation

Strategy for Covid-19, 7 J.L.

IOSCIENCES 1, 7, 19 (2020).

99. See Reiss, supra note 58, at 238.

100. See S. Bay Pentecostal Church, 140 S. Ct. at 1613 (Roberts, C.J., concurring).

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that increases risk: higher numbers of people. A focus on indoor versus

outdoor activities similarly addresses a risk factor, as we know that the

virus spreads more easily in closed, indoor environments.

101

In a serious outbreak of COVID-19, prohibitions on any size of gatherings

may be justified. In those cases, again, a general rule prohibiting large,

indoor gatherings is better than spelling out specific types of gatherings.

And exceptions should be considered by type. Allowing services that do

not require long exposure to other people, while prohibiting situations

where people are in close contact for long period of times, draws relevant

lines, and these are situations courts are more likely to uphold.

102

The reality is that in an emergency situation, orders will not always be

carefully written. An easy way for states to avoid closer scrutiny under

Smith is, as mentioned, to be more general in their orders: not to mention

religious services, but to simply ban gatherings of ten or more without

specificity or qualifiers, such as “life-sustaining,” that will be more vulnerable

to value judgments.

103

That being said, to have judicial decisions stand or

fall

on careful writing alone is

not a

good policy result. And general orders

also have their drawbacks.

More information as to

what is covered is

helpful to the public. States should not get the message that providing less

information

or being more vague will

make their

executive orders

judgment-proof, but that is exactly the message that literal adherence to

Smith

sends.

We believe courts should acknowledge that general stay-

at-home orders are valid, even if they mention religious services

part

of a long list of other areas subject to limits, as long as the basis

for

the

limit is not religious: just like prohibiting peyote by

Oregon’s controlled

substances act did not make the law in question in Smith less neutral, even

though peyote is used for religious ceremonies.

104

Mentioning religion in

a long list of gatherings does not make stay-at-home orders less neutral,

nor does it entail hostility to religion. When religious ceremonies are included

in that group as an also run—just part of a list of activities that are

characterized by gatherings—the measure is not targeting religion, and it

should be examined under Smith and upheld as neutral.

A different situation exists

when states do, indeed, pass orders specific

to churches: those will be subject to strict scrutiny. The decisions in Maryville

Baptist Church and in On Fire Christian Center v. Fischer (On Fire),

addressing orders—city and state—allowing drive-through liquor services,

101. See Hernandez, Toy & McKay, supra note 30.

102. See Lindsay F. Wiley & Stephen I. Vladeck, Coronavirus, Civil Liberties, and

the Courts: The Case Against “Suspending” Judicial Review, 133 H

ARV. L. REV. F. 179,

189, 191, 207–08 (2020).

103. See Maryville Baptist Church v. Beshear, 957 F.3d 610, 614, 616 (6th Cir. 2020).

104. See Emp’t Div. v. Smith, 494 U.S. 872, 890 (1990).

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but not drive-through religious services, are good examples.

105

While On

Fire problematically reflects a judge’s religious point of view, which is

troubling in a country whose constitution requires separation of church and

state,

106

it correctly reflects the law. Laws that single out religion—those

that are specific to religious events—do need to meet strict scrutiny.

107

The question is whether a specific restriction would be the least restrictive

means of achieving the designated state interest.

108

To this end, we think

the judge in On Fire was right to consider the mayor of Louisville’s order

in On Fire problematic. The order completely prohibited drive-through

religious services

109

—which could be conducted in a manner that works

with social distancing—while permitting drive-throughs for

other activities.

A less restrictive means

would impose rules that provide for social distancing

while allowing drive-through services to continue.

105. See Maryville Baptist Church, 957 F.3d at 611–12, 614; On Fire Christian Ctr.

v. Fischer, No. 3:20-CV-264-JRW, 2020 U.S. Dist. LEXIS 65924, at *14 (W.D. Ky. Apr.

11, 2020).

106. For example, the decision ends with the following, highly religious paragraphs:

The Christians of On Fire, however, owe no one an explanation for why they

will gather together this Easter Sunday to celebrate what they believe to be

a miracle and a mystery. True, they can attempt to explain it. True, they can try

to teach. But to the nonbeliever, the Passion of Jesus—the betrayals, the torture,

the state-sponsored murder of God’s only Son, and the empty tomb on the third

day—makes no sense at all. And even to the believer, or at least to some of them, it

can be incomprehensible as well.

But for the men and women of On Fire, Christ’s sacrifice isn’t about the

logic of this world. Nor is their Easter Sunday celebration. The reason they will

be there for each other and their Lord is the reason they believe He was and is

there for us. For them, for all believers, “it isn’t a matter of reason; finally, it’s

a matter of love.”

On Fire Christian Ctr., 2020 U.S. Dist. LEXIS 65924, at *22–23 (quoting R

OBERT BOLT,

A MAN FOR ALL SEASONS 88 (2013)). That language, and the personal devotion to religion

it reflects, is certainly within the rights of a private individual, but is not part of the law of

the land and including it in a judicial decision is troubling.

107. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

546–47 (1993).

108. See Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)

(requiring a showing that a burdensome regulation represents

“the least restrictive means

of achieving some compelling state interest”).

109. See On Fire Christian Ctr., 2020 U.S. Dist. LEXIS 65924, at *12 (discussing

how Louisville “targeted religious worship by prohibiting drive-in

church services”).

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V. THE ESTABLISHMENT CLAUSE AND STAY-AT-HOME ORDERS

Under the Establishment Clause of the First Amendment, “Congress

shall make no law respecting an establishment of religion.”

110

The clause

embodies the idea of separation of church and state, though its meaning is

conflicted and subject to extensive debate.

111

As currently applied by the

Supreme Court, it is relatively clear that states—or the federal government

—cannot treat different religions differently without facing strict scrutiny.

112

Less clear is what states can do that affects religious establishments.

113

Under the traditional Lemon test, laws affecting religion have to have a

secular purpose, cannot have a primary effect of advancing or inhibiting

religion, and cannot involve excessive entanglement of government and

religion.

114

In 2019 a plurality of the Supreme Court expressed reservations

about the Lemon test, suggesting it does not achieve its purpose, but the

Court did not provide an alternative approach.

115

That said, American Legion

v. American Humanist Association reinforced the reality that the application

of the Lemon test by the Supreme Court is, at best, confusing.

116

That

confusion was also reflected

in Espinoza v.

Montana Department of Revenue,

where the question of whether a constitutional provision forbidding state

aid to religious schools was examined under the Free Exercise Clause but

put aside for Establishment Clause purposes.

117

Relevant to this Article, several state stay-at-home orders exempt religious

organizations from the restrictions imposed on other gathering.

118

It is not

clear if this is the result of personal support for religion, a view that most

constituents support religion, or a misunderstanding of the constitutional

110. U.S. CONST. amend. I.

111. See William J. Cornelius, Church and State—The Mandate of the Establishment

Clause: Wall of Separation or Benign Neutrality?, 16 S

T. MARY’S L.J. 1, 6–8 (1984).

112. See Everson v. Bd. of Educ., 330 U.S. 1, 15–16 (1947).

113. See Marcia S. Alembik, Note, The Future of the Lemon Test: A Sweeter

Alternative for Establishment Clause Analysis, 40 G

A. L. REV. 1171, 1173–74 (2006).

114. See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).

115. See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2080–82, 2087–89

(2019).

116. See id.; see also Cornelius, supra note 111, at 6–8; Alembik, supra note 113, at

1188–92. Compare Estate of T hornton v. Caldor, Inc., 472 U.S. 703, 708–11 (1985)

(finding that a Connecticut statute that provided employees an absolute right not to work

on their Sabbath violates the Establishment Clause), with Corp. of the Presiding Bishop of

the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 329–30 (1986)

(finding that exempting religious organizations from the anti-discrimination provisions of

Title VII is constitutional).

117. See Espinoza v. Mont. Dep’t. of Revenue, 140 S. Ct. 2246, 2251, 2254 (2020).

118. See Madeline Holcombe & Stephanie Gallman, Here’s A Look at What States

Are Exempting Religious Gatherings from Stay at Home Orders, CNN (Apr. 2, 2020, 7:39

AM), https://www.cnn.com/2020/04/02/us/stay-at-home-order-religious-exemptions-states-

coronavirus/index.html [https://perma.cc/TLR2-2WBF].

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jurisprudence as requiring an exception for religions. A statement by the

Governor of Florida suggested the latter. Speaking to the press, Governor

DeSantis indicated “that local authorities actually can in fact e nforce

stricter rules (like closing a park for jogging), but not when it comes to

churches.”

119

The Governor further remarked, “Look, I don’t think that

the government has the authority to close a church.”

120

As discussed above, this is not a good reflection of Smith. But the reality

is that several states have exempted churches from stay-at-home orders.

The question is whether the law supports them in doing that.

Religious exemptions from various laws, while not required under Smith,

do exist in all states. One example is the fact that most states provide a

nonmedical exemption from school immunization mandates, and the majority

of these states explicitly offer religious exemptions.

121

That said, there are

at least some scholars who believe religious exemptions violate the Lemon

test.

122

One court—Mississippi’s Supreme Court—found a religious exemption

to violate equal protection,

finding

that

discriminates against families

without religious views, who do not receive a waiver of the requirement.

123

No other court, however, has followed the Mississippi’s Supreme Court’s

lead.

124

And courts have upheld laws exempting religions from requirements

that apply to others, as discussed.

125

Strict application of the Lemon test may lead to striking down stay-

at-home orders that expressly exempt religious establishments, because

such an exemption would fail the first requirement of a secular purpose.

126

119. Colin Wolf, Orlando Lawyer for Pastor Who Held Services During Coronavirus

Outbreak Says Church Lost Its Insurance, O

RLANDO WKLY.: BLOGGYTOWN (Apr. 3, 2020,

4:07 PM), https://www.orlandoweekly.com/Blogs/archives/2020/04/03/orlando-lawyer-

for-pastor-who-held-services-during-coronavirus-outbreak-says-church-lost-its-insurance

[https://perma.cc/Z7J3-X3ZS].

120. Id.

121. See States with Religious and Philosophical Exemptions from School Immunity

Requirements, N

AT’L CONF. ST. LEGISLATURES (June 26, 2020), https://www.ncsl.org/

research/health/school-immunization-exemption-state-laws.aspx [https://perma.cc/BH4R-

UGFL].

122. See, e.g., Alicia Novak, Comment, The Religious and Philosophical Exemptions to

State-Compelled Vaccination: Constitutional and Other Challenges, 7 U.

A. J. CONST. L.

1101, 1115–16 (2005).

123. Brown v. Stone, 378 So. 2d 218, 223 (Miss. 1979).

124. Allan J. Jacobs, Do Belief Exemptions to Compulsory Vaccination Programs

Violate the Fourteenth Amendment?, 42 U.

EM. L. REV. 73, 90–91 (2011).

125. Cornelius, supra note 111, at 6–10; Alembik, supra note 113, at 1180–81.

126. See Stone v. Graham, 449 U.S. 39, 41 (1980).

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However, as the Court summarized in American Legion, a similar claim

could be made about opening legislative sessions with prayer—the purpose

is clearly religious—and nonetheless, the Supreme Court upheld the practice

as constitutional.

127

The Court described the upholding of the practice of

prayer in the legislature as

an example of respect and tolerance for differing views, an honest endeavor to

achieve inclusivity and nondiscrimination, and a recognition of the important role

that religion plays in the lives of many Americans. Where categories of monuments,

symbols, and practices with a longstanding history follow in that tradition, they

are likewise constitutional.

128

Some of these arguments would apply in support of exempting churches

from stay-at-home orders, and some would work against it. COVID-19 is

a new disease, but diseases of this sort—those leading to closures—are not

new. To give one example, the 1918–1919 influenza pandemic did lead to

closures of religious establishments, providing a precedent that goes against

the churches here—suggesting the longstanding history may go the other

way.

129

Inclusivity and nondiscrimination could work either way, because

exempting religion would have to apply to all religions, but would no t apply

to non-religion community centers holding symbolic events. Exempting

religion would certainly fit into acknowledging the importance of religion

in the lives of many Americans.

130

In short, under the Supreme Court’s

reasoning in the legislature case, it is unclear that these exemptions would

stand. The American Legion plurality has not offered a clearer case.

The argumen

t that religious establishments serve a secular purpose of

offering emotional and spiritual support during a serious crisis could also

be attempted. However, if that is the argument, it is unclear why religious

establishments should be treated differently than other sources of comfort

—for example, fitness establishments that allow exercise, because exercise

can offer emotional benefits.

131

127. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087–89 (2019).

128. Id. at 2089.

129. Miles Ott et al., Lessons Learned from the 1918–1919 Influenza Pandemic

in Minneapolis and St. Paul, Minnesota, 122 P

UB. HEALTH REP. 803, 804 (2007), https://

www.ncbi.nlm.nih.gov/pmc/articles/PMC1997248/pdf/phr122000803.pdf [https://perma.cc/

2ZYF-XTJB]; see Richard J. Hatchett, Carter E. Mecher & Marc Lipsitch, Public Health

Interventions and Epidemic Intensity During the 1918 Influenza Pandemic, 104 P

ROC. NAT’L

ACAD. SCI. U.S. 7582, 7582–84, 7586 (2007); Nina Strochlic & Riley D. Champine, How

Some Cities ‘Flattened the Curve’ During the 1918 Flu Pandemic, NAT’L GEOGRAPHIC

(Mar. 27, 2020), https://www.nationalgeographic.com/history/2020/03/how-cities-flattened-

curve-1918-spanish-flu-pandemic-coronavirus/#close [https://perma.cc/7HB5-APXY].

130. This approach would also fit Cornelius’s suggestion of benign neutrality towards

religion. See Cornelius, supra note 111, at 35–37.

131. See, e.g., L

OUISE J. GENEEN ET AL., PHYSICAL ACTIVITY AND EXERCISE FOR CHRONIC

PAIN IN ADULTS: AN OVERVIEW OF COCHRANE REVIEWS (2017), https://www.cochrane

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This is a place where the recent jurisprudence suggesting sympathy to

claims of religious discrimination may matter. Indeed, it would be hard

to reconcile Hobby Lobby—requiring that employers with religious objections

to contraceptives be exempt from covering contraceptives for employees—

with prohibiting religious exemptions for churches from stay-at-home

orders.

132

At the least, the plurality approach in American Legion suggests

that the Supreme Court is leaning to a flexible test that allows some

religiously-motivated activity by state actors. The Supreme Court upholding

the distribution of legal aid to religious schools in Espinoza v. Montana

Department of Revenue also fits this approach.

133

Our view is that there is enough precedent for religious exemptions, and

enough cases allowing religious exemptions, to suggest that states providing

exceptions from stay-at-home orders to religious establishments are on

constitutionally sound grounds doing it and unlikely to have their exceptions

overturned. There is, however, a chance some judges will go the other

way and find that such exceptions violate the Establishment Clause and

the separation of church and state.

134

VI. C

ONCLUSION

The COVID-19 pandemic tests states and countries in many ways. It

also poses legal challenges for the United States. This Article points out

that the jurisprudence on the First Amendment is confusing, but that

reasonable restrictions on gatherings are a reasonable response to the

pandemic that can also apply to religious gatherings—within limits, and

as long as they do not negatively single out religious establishments. That

library.com/cdsr/doi/10.1002/14651858.CD011279.pub3/epdf/full [https://perma.cc/

Y9AS-XEYZ]; Emily E. Bernstein & Richard J. McNally, Acute Aerobic Exercise Helps

Overcome Emotion Regulation Deficits, 31 C

OGNITION & EMOTION 834, 839 (2017);

Emily E. Bernstein & Richard J. McNally, Exercise as a Buffer Against Difficulties with

Emotion Regulation: A Pathway to Emotional Wellbeing, 109 B

EHAV. RES. & THERAPY

29, 29, 33–34 (2018); Meghan K. Edwards, Ryan E. Rhodes & Paul D. Loprinzi, A

Randomized Control Intervention Investigating the Effects of Acute Exercise on Emotional

Regulation, 41 A

M. J. HEALTH BEHAV. 534, 541 (2017); Brett R. Gordon et al., Association

of Efficacy of Resistance Exercise Training with Depressive Symptoms, 75 J. AM. MED.

SS’N PSYCHIATRY 566, 566, 571, 574 (2018); Darren E.R. Warburton & Shannon S.D.

Bredin, Health Benefits of Physical Activity: A Systematic Review of Current Systematic

Reviews, 32 C

URRENT OPINION CARDIOLOGY 541 (2017).

132. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 692 (2014).

133. See Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2262–63 (2020).

134. See, e.g., Brown v. Stone, 378 So. 2d 218, 223 (Miss. 1979).

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is not to say that all judges will arrive at the correct result on this issue,

but it is where courts should end. The Article also warns states that do

negatively single out religious establishments correctly face a higher bar.

We also point out that governors do not have to exempt religious

establishments from stay-at-home orders, and we believe that it is risky

and bad policy to do so—given the several large COVID-19 outbreaks centered

on churches—but that they are unlikely to have exemptions overturned.

We all face a lot of uncertainty about the coming years. Where possible,

we should at least reduce uncertainty in the law.

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