Antony Barone Kolenc
Assistant Professor, UNT Dallas College of Law
SPRING 2021 ISSUE:
The religious worshippers defied criminal prosecution by their government and planned underground church services in secret. They invited “trusted people” to attend by word of mouth and met in barns on remote farms or in shuttered bookshops, where they would “pray, read from the scriptures, sing hymns and listen to a sermon.”1 These are not scenes of civil oppression from today’s Communist China or yesterday’s Soviet Union, but rather from London, England—not during the age of religious persecution in 1620, but during the age of COVID-19 in 2020. In nations locked down due to the global pandemic, some believers resorted to illegal action. They attended secret church services “through the back door”2 and planned covert events, such as the “secret wedding” held by Hasidic Jews in Brooklyn after New York officials canceled their plans.3
In the age of COVID, some believers feel targeted by the strict criminal limits placed on their ability to worship together, while some in their communities worry that religious gatherings are “super-spreader” events that perpetuate the devastation of the coronavirus. In the United States—through all the fear, fatalities, and despair caused by COVID-19—two pressing questions arise: What limits does the U.S. Constitution place on the government’s suppression of religious liberty during a global health emergency, and what can believers do to secure their right to religious worship?
In the past year, the U.S. Supreme Court has weighed in on these questions and provided guidance based on precedent. The focal point for the Court’s analysis has been the Free Exercise Clause of the First Amendment, which states, “Congress shall make no law … prohibiting the free exercise [of religion].”4 But why did the founding generation protect religious liberty, and how should the Free Exercise Clause be interpreted in the shadow of a deadly pandemic?
The Value of Religious Liberty
The history of humanity is intertwined with faith, with religion playing a key part in the global formation of law and culture5 In Western Civilization, fundamental religious values have led to the modern understanding of human rights,6 as exemplified by the statement in the Declaration of Independence that “[a]ll men are created equal and endowed by their Creator with certain inalienable rights.”7 Because their ancestors had escaped religious persecution in Europe, the founding generation saw the need to protect religion and viewed morality as necessary to the nation’s success.8 For this reason, the First Amendment placed religion in a special category, uniquely shielding it from government interference.9 In recognition of this “preferential treatment” under the Constitution, religious liberty is sometimes called the “first freedom.”10
Religious Liberty Precedents
Under the Free Exercise Clause, courts are vigilant to protect religion from government discrimination. On rare occasion, state officials seek to harm religion by passing laws that are not “generally applicable”—i.e., they act “in a selective manner” to “impose burdens only on conduct motivated by religious belief.”11 Other times, officials act in a way that is not “neutral” toward religion by passing laws with “the object … to infringe upon or restrict practices because of their religious motivation.”12 Under Supreme Court precedent, this kind of discriminatory law “must satisfy ‘strict scrutiny’” in the courts, which means that officials must prove that the law is “‘narrowly tailored’ to serve a ‘compelling’ state interest”13—a difficult test for any law to pass.
In truth, most laws are neutral and apply to both the religious and the non-religious. Sometimes, however, even these benign laws can “incidentally burden religious conduct.”14 When that happens, the Supreme Court decreed in Employment Division v. Smith15—a seminal free-exercise case from 1990—that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.”16 This is a much easier test for a law to pass, and most neutral laws will be upheld under this standard. The Smith case has been criticized by some scholars and religious rights activists, however, for failing to adequately protect religious liberty.17 Significantly, this year the Supreme Court is being asked to “revisit” the Smith standard and make it more protective of religious freedom.18
Targeting Religion During a Pandemic
In the age of COVID, governments across the United States have responded to a pandemic by passing stringent restrictions on personal freedoms, including gathering together for religious worship. Notably, the Supreme Court has indicated that New York and California have passed discriminatory COVID-19 limitations on religious worship that are likely to fail strict scrutiny.
In New York, the Supreme Court granted a temporary injunction against the state’s “severe restrictions on attendance at religious services in areas classified as ‘red’ or ‘orange’ zones.”19 Those restrictions “single[d] out houses of worship for especially harsh treatment.”20 For instance, a synagogue or church in a red zone was limited to 10 worshippers, while “businesses categorized as ‘essential’ may admit as many people as they wish”—with “essential” businesses including “acupuncture facilities, camp grounds, garages, … plants manufacturing chemicals and microelectronics[,] and all transportation facilities.”21 And in orange zones, even “non-essential” businesses could “decide for themselves how many persons to admit,” while churches were limited to 25 persons.22 The Court did not see this as equal, neutral treatment toward religion.
The Court was even harsher in granting an injunction against California’s prohibition on all indoor worship services, which several Justices characterized as “obviously target[ing] religion for differential treatment.”23 The Justices noted that California did not place similar unyielding restrictions on “businesses the State allows to remain open,” where “scores” of people “might pack into train stations or wait in long checkout lines,” where “no one is barred from lingering in shopping malls, salons, or bus terminals,” and where hairstylists and manicurists are permitted to touch customers and remain “in “close physical proximity” for “extended periods.”24 In comparison, worshippers who “may seek only to pray in solitude, go to confession, or study in small groups” are flatly prohibited from doing so indoors.25 California’s severe rule would fail strict scrutiny because the state did not try to “narrowly tailor” the rule by merely “limiting the number of people who may gather at one time” or by using other “narrower options” that were “adequate in many secular settings—such as social distancing requirements, masks, cleaning, [and] plexiglass barriers.”26
Overturning the Smith Case?
With a few exceptions, such as those noted above, most laws restricting freedoms due to the pandemic treat religious activities equally with secular ones. Still, some believe their right to worship freely is violated even by neutral, generally applicable COVID-19 restrictions on religious services. Under the Smith standard, however, such rules are likely to pass judicial muster because the courts review them deferentially. Indeed, even in the above New York and California cases, the Supreme Court did not enjoin the neutral aspects of those state rules. But not everyone thinks Smith was correctly decided, and some seek to overturn its holding and force the courts to apply strict scrutiny even to neutral and general laws that incidentally burden religious practice.
Critics note that the Supreme Court’s policy justifications for not applying strict scrutiny in Smith were based on faulty predictions that have not come to pass.27 For instance, Smith predicted that applying strict scrutiny to benign laws would “court anarchy,” that “most free exercise claims would involve ‘laws’ rather than administrative rules,” and “that legislatures would be sufficiently ‘solicitous’ of religious exemption requests.”28 Critics argue that, “in the ensuing years [since Smith], these justifications have rung hollow.”29 Despite these criticisms, however, it is unlikely the Supreme Court will overturn Smith this year because crafting a workable substitute rule is difficult without upending decades of case precedent. Thus, truly neutral COVID rules that incidentally impact religious practice are likely safe from being struck down by the courts.
Challenging Discriminatory Laws
For those living in areas where officials have crafted pandemic-related laws that might violate the free exercise of religion, there are legal ways to vindicate one’s civil rights. Various non-profit organizations30 specialize in the defense of religious liberty and will assist with challenging discriminatory laws, usually at no charge to the client. It is better for those impacted by laws that impact religious liberty to bring a challenge in the courts, where judges can craft a balanced remedy. The alternative—taking matters into one’s own hands and meeting illegally in secret—might endanger the health of the surrounding community and could place the religious worshipper’s own freedoms at risk due to criminal prosecution for breaking the rules.
1 Harriet Sherwood, ‘Let us disobey’: Churches defy lockdown with secret meetings, The Guardian, Nov. 22, 2020, https://www.theguardian.com/world/2020/nov/22/let-us-disobey-churches-de..., last visited February 15, 2021.
2 Analy Nuño and Caio Barretto Briso, ‘Enter through the back door’: secret church services in Mexico and Brazil defy Covid-19 rules, The Guardian, June 17, 2020, https://www.theguardian.com/global-development/2020/jun/17/mexico-church..., last visited February 15, 2021.
3 Karen Matthews, Cuomo: ‘Disrespectful’ of Thousands to Attend Secret Orthodox Wedding in Brooklyn, Associated Press, Nov. 22, 2020, https://www.nbcnewyork.com/news/coronavirus/cuomo-disrespectful-of-thous..., last visited February 15, 2021.
4 U.S. CONST. amend. I.
5 See Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. Pa. L. Rev. 149, 218 (1991) (discussing human belief in a “divine or transcendent authority”). See also Mircea Eliade, The Sacred and the Profane (Harcourt 1959) (noting universal aspects of religion in history).
6 See Aaron R. Petty, Religion, Conscience, and Belief in the European Court of Human Rights, 48 Geo. Wash. Int’l L. Rev. 807, 816-17 (2016) (discussing the role of Christianity in European human-rights law).
7 The Declaration of Independence para. 2 (U.S. 1776).
8 See, e.g., Letter from John Adams to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts (Oct. 11, 1798) (noting the Constitution must govern “a religious and moral people”); An Act to provide for the Government of the Territory Northwest of the river Ohio, 1 Stat. 50-53, Aug. 7, 1789 (reenacting the Northwest Ordinance, which declared that “religion, morality and knowledge” were “necessary to good government and the happiness of mankind”). See also Van Orden v. Perry, 545 U.S. 677, 692 (2005) (Scalia, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 91-114 (1985) (Rehnquist, J., dissenting); Lynch v. Donnelly, 465 U.S. 668 (1984) (recounting the historical role of religion in official government actions).
9 The first Congress considered protecting all secular conscience rights in the First Amendment, but ultimately decided to protect only the free exercise of religion. See Eduardo Peñalver, The Concept of Religion, 107 Yale L.J. 791, 803 (1997); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1481 (1990).
10 Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 400 (1993) (Scalia, J., concurring in the judgment).
11 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993).
12 Id. at 533.
13 Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63, 67 (2020) (per curiam).
14 Cutter v. Wilkinson, 544 U.S. 709, 714 (2005).
15 Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).
16 City of Boerne v. Flores, 521 U.S. 507, 514 (1997).
17 See Antony B. Kolenc, “Mr. Scalia’s Neighborhood”: A Home for Minority Religions?, 81 St. John's L. Rev. 819, 840−42 (2007) (discussing Smith and its criticism). After Smith, many states and the federal government passed Religious Freedom Restoration Acts (RFRA), which “sought to counter the effect of [the Smith] holding and restore the pre-Smith ‘compelling interest test’” by statute. Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020).
18 See Fulton v. City of Philadelphia, Pennsylvania, 140 S. Ct. 1104 (2020) (granting review of a case seeking to overturn Smith).
19 Cuomo, 141 S.Ct. at 65−66.
20 Id. at 66.
23 South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 717 (2021).
24 Id. at *2−3.
25 Id. at *2.
26 Id. at *2−3.
27 See Fulton v. City of Philadelphia, 2020 WL 2836494 at 37−42 (May 1, 2020) (Brief for Petitioners).
28 Id. at 37−38.
29 Id. at 38.
30 Non-profit organizations that specialize in defending religion and take clients nationwide include First Liberty (Plano, Texas), Becket (Washington D.C.), Alliance Defending Freedom (Scottsdale, AZ), and The Thomas More Society (Chicago, IL).