For the past several weeks, COVID-19 or novel coronavirus has spread throughout the United States, contributing to an unprecedented pandemic. From school to work to where we shop and eat, this serious disease impacted almost every facet of our daily lives.
State governments have responded to COVID-19 in various ways, including through executive orders. These “stay-at-home” orders, issued by states’ respective governors, seek to combat the spread of COVID-19 by restricting the ability of people to go outside their homes, congregate, and engage in business, among other things.
While enacted with the best of intentions, stay-at-home orders may come into conflict with rights guaranteed by the United States Constitution, including the First Amendment’s right to exercise religion. This article explores the issues that may arise at this strange intersection of public safety laws, on the one hand, and constitutional freedoms, on the other.
Virginia’s Stay-at-Home Order
Governor Ralph Northam issued Executive Order 55 (“EO 55”) on March 30, 2020. EO 55 is a temporary “stay-at-home” order that contains a number of restrictions and is in effect until June 10, 2020. Specifically, EO 55 orders all individuals in Virginia to remain at their place of residence and, to the extent they share a residence, maintain social distancing of at least six feet from any other person, with the exception of family or household members or caretakers. However, EO 55 allows individuals in Virginia to leave their residence for a number of reasons, including obtaining necessary food, beverages, goods, or services; seeking medical attention, essential social services, governmental services, assistance from law enforcement, or emergency services; and, as pertinent to this article, traveling to and from one’s residence, place of worship, or work.
Although EO 55 thus permits individuals in Virginia to attend religious services, it prohibits public and private in-person gatherings of more than ten individuals, including religious events, whether they occur indoor or outdoor. Accordingly, until June 10, 2020, many individuals in Virginia will not be able to attend religious services as they were previous accustomed to, per the terms of EO 55.
When Religious Rights and Stay-at-Home Orders Conflict
It goes without saying that COVID-19 is a serious concern, presenting an unprecedented situation for governments at every level. Nevertheless, the United States Constitution guarantees to every American certain rights, even in emergency situations.
The First Amendment
The First Amendment to the United States Constitution provides:
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.
Additionally, under the Fourteenth Amendment, the rights and freedoms under the First Amendment apply to state governments, such as Virginia’s, as well.
Religious Freedom is Not Absolute
Of course, in our system of government, rights are rarely absolute. This is true with respect to the prohibition of the government prohibiting the free exercise of religion as well. Over one hundred years ago, the United States Supreme Court articulated these limitations in the case of Reynolds v. United States, in which the Court stated that the freedom to hold a religious opinion or belief cannot be restricted by law, but that the government is “free to reach actions which [are] in violation of social duties or subversive of good order.” In more recent rulings, the United States Supreme Court has clarified the constitutionality of laws touching upon the right to free exercise of religion.
If a law is neutral and generally applicable, it will be upheld so long as there is a “rational basis” for the law. In practice, such laws will usually survive a constitutional free exercise challenge. The case originating this rule was Employment Division v. Smith, which held that a law prohibiting the consumption of peyote was constitutional because it was not aimed at promoting or restricting religious beliefs, even though that law necessarily prohibited the religious use of peyote
However, if the government does not act neutrally toward the free exercise of religion, the law will be upheld only if it satisfies strict scrutiny, meaning that the government must demonstrate that its restrictions on religion both (1) serve a compelling interest and (2) are narrowly tailored to serving that interest. In practice, such laws will rarely survive a constitutional free exercise challenge.
COVID-19 Cases in Other States
Neither state nor federal courts in Virginia have addressed the application of laws enacted to combat COVID-19 to the religious protections guaranteed by the First Amendment. However, the issue has arisen in a few other states, and two cases in particular illustrate how a court in Virginia would likely act if asked to decide the constitutionality of EO 55.
On Fire Christian Ctr. v. Fischer
In this Kentucky case decided on April 11, 2020, a church challenged the Mayor of Louisville’s decision to ban religious services, even if congregants remained in their cars during the service. The mayor himself stated: We are not allowing churches to gather either in person or in any kind of drive-through capacity.” The church sought an order from the court enjoining Louisville from enforcing this local law.
The court first held that this was not a neutral and generally applicable law, and thus subject to strict scrutiny. That was because Louisville targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs, such as drive-through liquor stores.
The court found then that it was unlikely the mayor’s order would satisfy strict scrutiny. The court stated that it was clear that Louisville was pursuing a compelling interest, but it was “beyond all question” that the law was not narrowly tailored to serve that interest. Louisville’s actions, the court held, were both underinclusive and overbroad.
The law was underinclusive in that it failed to prohibit similar though non-religious activities, including driving through a liquor store’s pick-up window and walking into a liquor store where other customers are shopping. In the court’s words, “if beer is ‘essential,’ so is Easter.” But the law was also overbroad, because Louisville’s compelling interest in preventing the spread of COVID-19 could be achieved by allowing worshippers to congregate in their cars.
Thus, while acknowledging that there is not an “instruction book for a pandemic,” the court enjoined Louisville from enforcing or otherwise requiring compliance with any prohibition on the drive-in church services of the plaintiff.
The holding of the On Fire case is of limited applicability to Virginia’s EO 55, however, because, unlike the Louisville Mayor’s order, EO 55 does not treat religious services differently from non-religious gatherings.
Legacy Church, Inc. v. Kunkel
In this New Mexico case decided on April 17, 2020, a church challenged the Secretary for the New Mexico Department of Health’s order prohibiting (among other things) all mass gatherings, defined as any public or private gathering that brings together five (5) or more individuals in a single room or connected space. While the order, when first enacted in March, did not apply to religious services, as of April 11 religious services were no longer exempted.
In contrast to Kentucky’s On Fire case, the New Mexico district court easily concluded that the Secretary’s order did not violate the constitution, albeit in a decision of over 140 pages explaining the background of the case and the long history of freedoms of religious expression and assembly in the United States.
First, the court found that the April 11 order was both neutral and generally applicable, with no evidence of animus against Christianity in particular or against religion in general. Although the timing of the order, being just prior to Easter, concerned the court, the court emphasized that the order it prohibited many kinds of non-essential commercial and recreational secular activities. Because the order did “not single out religious activity or impose special disability on the basis of religious status,” it did not violate the church plaintiff’s constitutional rights.
Second, the court noted that “when the state faces a major public health threat, as New Mexico now does, its . . . police and public health powers are at a maximum.” Thus, the court found that there was a rational basis for the restriction at issue.
Perhaps unsurprisingly, the federal district court judge in Kunkel brought up the On Fire case, primarily to distinguish it. The court observed that there were major factual differences between On Fire and the case before it, such as the fact that the Louisville Mayor’s order targeted religious services but did not prohibit similar gatherings of a secular nature. This, wrote the court, compelled a different result.
Likewise, a court in Virginia would likely rely more upon the ruling in the Kunkel case than the On Fire case if asked to construe Virginia’s EO 55. Like New Mexico’s April 11 Order, EO 55 does not treat religious gatherings any different from secular gatherings. Thus, like the judge in Kunkel, judges in Virginia would most likely uphold EO 55 as constitutional.
Is Virginia’s Stay-at-Home Order Constitutional?
In addition to the above illustrative cases, arising in the COVID-19 contest, prior rulings by the United States Supreme Court are useful in predicting whether stay-at-home orders such as Virginia’s EO 55 are constitutional. The answer is that they likely are.
There is a strong argument that EO 55 is neutral and generally applicable. It is true that EO 55 does specifically address places of worship and religious events. However, EO 55’s prohibition of in-person gatherings of more than ten individuals applies across the board, to all public and private gatherings. Assuming that EO 55 is neutral and generally applicable, it would likely survive a constitutional challenge because, given the transmission rate of COVID-19, Governor Northam certainly had a “rational basis” to issue the order. Indeed, courts routinely find that laws enacted to protect the public health have a rational basis.
If a court were to find that EO 55 was enacted to prohibit the exercise of religion, the answer is less clear. EO 55 would have to survive strict scrutiny, meaning it would only be upheld if it (1) served a compelling interest and (2) was narrowly tailored to serve that interest.
Laws restricting the exercise of religion rarely survive strict scrutiny, but in the special context of COVID-19, it is at the very least possible a court would find (1) Virginia’s interest in limiting the spread of COVID-19 to be compelling and (2) that EO 55 is narrowly tailored because it only limits in-person gatherings to ten individuals or less, but does not prohibit religious gatherings (for example, via videoconferencing) altogether.
On the other hand, one could argue that, given COVID-19’s numerically low mortality rate of 3.4%, Virginia does not have a compelling interest. The better argument that EO 55 does not withstand strict scrutiny would likely be that EO 55 is not narrowly tailored enough; after all, it provides for a blanket ban of all in‑person gatherings of more than ten individuals, regardless of the precautions those individuals might take or the ability of those individuals to maintain a safe social distance from one another at their place of worship.
COVID-19 is an unprecedented health crisis and, similarly, courts have never been asked to consider the First Amendment implications of stay-at-home orders such as EO 55 (at least until recently). Thus, precedent is, to say the least, underdeveloped. Nevertheless, for the reasons discussed above, it is likely that EO 55 would be upheld as constitutional as a neutral and generally applicable law, much like the order at issue in the Kunkel case.
Fishwick & Associates: Here to Help During the COVID-19 Epidemic
If you have any questions or concerns about your rights as we withstand the COVID-19 epidemic in Virginia, Fishwick & Associates can provide legal assistance and answer any questions you may have during these turbulent times. To schedule your free and confidential consultation, complete our online contact form or call us at 540.345.5890.
Reynolds v. United States, 98 U.S. 145 (1878).
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1734 (2018).
United States v. Richards, 737 F.2d 1307 (4th Cir. 1984).
Coronavirus (COVID-19) Mortality Rate, Worldometer (March 5, 2020), https://www.worldometers.info/coronavirus/coronavirus-death-rate/ (last accessed April 22, 2020).
On Fire Christian Ctr. v. Fischer, No. 3:20-CV-264-JRW, 2020 U.S. Dist. LEXIS 65924 (W.D. Ky. Apr. 11, 2020).
Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JBSCY, 2020 U.S. Dist. LEXIS 68415 (D.N.M. Apr. 17, 2020).
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