COVID-19 and the 1st Amendment

In response to COVID-19, California and many other states have issued state-wide orders for all residents to stay at home and/or place restrictions on gatherings.  Some cities and counties have issued strict policies prohibiting public gatherings outside of the home, or "shelter in place" policies, enforceable under the Health and Safety Code.

There is no shortage of opinion regarding the state’s right, or lack thereof, to restrain its citizenry.  The 1st amendment protects not only speech, but the free exercise of religion and the right to peaceably to petition the government.

Free Exercise of Religion

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." 1^st Amendment.

Although rules can change, the present rule followed by the court relating to whether our government may place restrictions on religion was delivered in an opinion by Justice Scalia in 1990 in Employment Division v. Smith (“Smith”):

“[I]f prohibiting the exercise of religion […] is not the object […], but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”  Justice Rehnquist, White, and Stevens joined in Justice Scalia’s opinion. 

If the courts follow this narrow rule, it is unlikely the current “shelter in place” orders will be found to be a unconsitutional because the impact on religion is likely merely incidental to the restraints generally applicable to everyone.  In other words, our status of “shelter in place” was not directed at religion or religious organization.  There was of course dissent in both judgment and opinion to the Judgment of the court in Smith, and smith was in the context of a generally applicable criminal penalty to the use of peyote used in religious observances.

Justice O’Connor concurred in judgment in Smith, but disagreed with the new rule laid down by the court.  Justice O’Connor writes, “To reach this sweeping result […] the Court must not only give a strained reading of the First Amendment but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct.”

The Free Exercise Doctrine

The Free Exercise Doctrine requires governments to justify a substantial burden on religiously motivated conduct by demonstrating a compelling state interest and that a law or regulation must be narrowly tailored to achieve that interest.  In other words, O’Connor points out the Court has weakened the tradition protections provided by the 1st amendment relating to the free exercise of religion.

The Free Exercise doctrine is implicated when government conduct places a “substantial burden on religiously motivated conduct”.  When evaluating whether any law, regulation, or executive order “substantial burden on religiously motivated conduct” the court will look at the substance of each law, regulation, or executive order.  There is likely no room to argue that an outright prohibition on church gatherings is not a substantial burden on religiously motivated conduct”

Compelling interest

If action by government imposes a “substantial burden on religiously motivated conduct” the state must demonstrate it has a compelling interest for the law or regulation creating the burden, and that law or regulation is narrowly tailored to effectuate that purpose.  Similar to  “substantial burden”, the courts will most likely find a state’s interesting in protection its citizens from COVID-19 is a “compelling interest” for executive orders or legislation relating to COVID-19, but is any executive order or law, narrowly tailored to effectuate that purpose?

Narrowly Tailored (The Goldilocks zone)

By Narrowly Tailored the court will ask whether an order goes far enough (to narrow is scope) to achieve the states ends or whether the order goes further than is required to effectuate its purpose.  The purpose of each order may be hard to ascertain.  If we assume the purpose of an order is to slow the spread of COVID-19 by restriction person to person contact, the court will ask two questions, 1) whether there are gatherings of people that appear to be necessary to achieve the state’s purpose but are inexplicitly not restrained under the order, and 2) whether some restraint other than an outright restriction on social gatherings at a churches can achieve the same ends.  In other words, the suit fits just right.

           Too-narrow in scope / Not inclusive enough

Permitting a gem conventions or Comic Con to go forward while restraining church gatherings, may result in an order being struck down as unconstitutional because it restricts religious practices but inexplicably permits people to gather at elsewhere, which is on its face against the purpose of the order, to reduce the spread of Covid-19

            Overly broad

An outright ban on religious gatherings may be struck down as unconstitutional if a court finds that limiting gathering to fewer people, or the practice of social distancing conduct during religious gatherings, achieves the goal as a total prohibition.

CONCLUSION

It is difficult to read the tea leaves in these situations.  Each law or order may vary greatly and may be interpreted in multiple ways.  A court will interpret a law so as to make it constitutional if it can.  If the court cannot do so, it may limit the application of the order, making is constitutional acceptable, rather than striking down the entire law as unconstitutional.

Much also depends on whether a court will stick with the rule in Smith, which narrowed the analysis and potentially rewound all the way back to 1878 when it first rule on the Free Exercise Clause, where the Chief Justice stated in in Reynolds v. United States relating to a case on polygamy, “Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”  If the court follow this rather low bar, most orders will be likely be upheld.

If the court follow the rules laid out in earlier cases, orders may be set aside as not being properly tailored to survive a constitution challenge.