What does this mean for places of worship? Are they bound by directives issued by government officials and agencies? And if they choose to still meet, do they face any legal consequences for doing so?
Legally speaking, states have the authority to use police powers to protect the welfare, health, and safety of their citizens. The parameter of state powers varies based on the state. Generally, it’s a combination of state constitutional power and statutory power executed by the governor via an executive order declaring a disaster emergency. We offer three steps test for determining government actions affecting public gatherings. The declaration of a public disaster allows the state to act quickly when responding to community problems like COVID-19. Typically, government officials are required to work their way through a complex legal process to prohibit a public gathering. However, when a state of emergency is declared, the process is expedited and the red tape is temporarily removed. And yet, while the government may have a significant amount of power during disasters, it is still limited by constitutional parameters. State actions that impact constitutional interests, like the First Amendment’s right of the people to peaceably assemble, must follow certain rules. The government can limit people from assembling if the restrictions are reasonable, not content-based, and “narrowly tailored” to meet legitimate concerns like public safety, while restricting constitutional rights as little as possible. With respect to the First Amendment and its guaranty of the free exercise of religion, restrictions either must be neutral and generally applicable (i.e. not singling out religious organizations) or they must meet a very high judicial standard known as strict scrutiny—the government's interest must be compelling and exercised in the least intrusive manner possible. The government most likely cannot meet this burden unless it treats all gatherings equally. During the current COVID-19 crisis, many states have recommended or asked organizations to voluntarily restrict large gatherings. A voluntary request made by the state without forcibly requiring compliance may demonstrate to a court that the state attempted to use the least restrictive approach to constitutional rights. A ban that limited the size of gatherings but did so equally to all gatherings for serious issues of public safety might also be constitutional. A ban that targeted churches, but not other gatherings, would probably not be constitutional. In crafting policies on banning, some states have decided not to apply the group limitations to airports, libraries, workplaces, grocery stores, athletic events (without spectators), religious gatherings, weddings, or funerals. Other states have created blanket bans for all large groups of people. The public health circumstances, the language of the order, and the enforcement approach for each state must be analyzed individually to determine whether government action is a neutral and generally applicable approach or an act of discrimination. So what does this mean practically for churches? If your state has issued an emergency declaration, the state government may now legally have special rights to control the size of gatherings in the name of public safety. As a matter of policy and implementation, if the government directive is a neutral law of general applicability and does not target churches in a discriminatory manner, the state’s recommendation or mandate is probably legal. Are there legal consequences if a church still meets? Assume the state is legally justified, per its emergency declaration, to restrict the assembly of people. What are the legal consequences for churches that refuse to cancel services? First, it’s important to look at the language of the directive. Is the state recommending that churches refrain from meeting or is the state prohibiting it? A recommendation, without the threat of enforcement, is not the same as a ban. A state ban on groups of a certain number carries with it the threat of government force if state law is not followed. In a state where gatherings have been banned, churches that still meet for worship services and events may find their churches being ordered by a court to cease all gatherings. Failure to follow the directives of a court order could result in a variety of consequences, depending on the language of the court order, including financial penalties, forced closure, stripping state benefits from the organization, or even jail time for church leaders. It could also result in free exercise litigation if the church feels the ban was discriminatory. Before deciding to disobey a ban or a court order, consult with a First Amendment attorney to analyze the law and the situation. Churches worldwide are implementing creative solutions that balance theological and ecclesial responsibilities with their roles as members of their local communities.