What is a church to do in the time of the coronavirus pandemic? For many religious traditions, gathering for worship is not just a friendly suggestion. Some Jewish practices require groups of 10. Muslims consider Friday’s congregational prayer one of their most important. Catholics celebrate the Eucharist together during Mass. As the German Lutheran theologian Dietrich Bonhoeffer wrote in 1930, “A Christian who stays away from the assembly is a contradiction in terms.”
And yet, for the time being at least, mass gatherings are fueling a public-health crisis, and many state and local authorities are banning gatherings of 50 or more people. Can the government, in a country where freedom of religion and freedom of assembly are sacrosanct, close churches? As a matter of public health, churches should follow these prohibitions. But as a legal matter, must they? The short answer is that in this case, government restrictions extending to churches are almost certainly legal. What’s interesting is why.
The precise legal analysis is complicated by the fractured landscape surrounding the free exercise of religion. The confusion began with a 1990 decision, Employment Division v. Smith, that dramatically lowered the level of constitutional protections for free-exercise claims, in a case involving Native American spiritualists seeking an exemption from a law banning the use of peyote. Subsequent legislative and judicial responses to that decision at the federal and state levels created a patchwork landscape for adjudicating free-exercise claims, introducing different standards of review depending on the jurisdiction or nature of the claim. Today, if a church challenged a shutdown order from the federal government, the Religious Freedom Restoration Act (RFRA) would require that courts review the order with the highest level of judicial scrutiny. However, if the challenged shutdown order came from a state or local government, RFRA would not apply, and the claim would depend on state constitutional and legislative protections, and their interpretations by state courts. (A later law amending RFRA, the Religious Land Use and Institutionalized Persons Act, would possibly, though not at all certainly, increase the level of scrutiny applied to state and local restrictions.)