One other point. The Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ". The delineation of emergency powers granted to the state's governors makes no distinction regarding religion. Therefore, they do not violate the First Amendment. Were the laws changed so that religious facilities were protected from the exercise of emergency powers, that exclusion WOULD be a violation of the First Amendment.
You are not correct.
First of all, you and most other people making similar statements fail to recognize that is there is no "
pandemic exception" to the fundamental liberties safeguarded by the Constitution. As several federal courts of appeal have recently emphasized in the present COVID-19 context, “individual rights secured by the Constitution do not disappear during a public health crisis.”
In re Abbott, --- F.3d ---, 2020 WL 1685929, at *6 (5th Cir. Apr. 7, 2020). The protections in the Bill of Rights are
always in force to restrain government action, even during a pandemic. And although the Supreme Court has held that the government is authorized to take certain
temporary (and I emphasize
temporary) action that might limit an individual's liberty interest in the face of an emergency that poses "great danger" to the public, those measures are scrutinized for whether they represent the
least restrictive means necessary to accomplish a lawful government purpose, and whether the measures invade fundamental rights secured by the Constitution.
To that end, the Supreme Court mandates that federal courts intervene to strike down such a law "If [the] statute purporting to have been enacted to protect the public health, the public morals, or the public safety ... is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law."
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905).
As it applies to the subject at hand, the "Free Exercise Clause" of the First Amendment guarantees to all Americans the “right to believe and profess whatever religious doctrine [they] desire[],” as well as their right to act on these beliefs through gathering for public worship or through other acts of religious exercise in their daily lives.
Empl’t Div. v. Smith, 494 U.S. 872, 877 (1990). The test for determining whether a law unconstitutionally invades the First Amendment rights of religious believers or their practices under the Free Exercise Clause, as articulated by the Supreme Court, directs federal courts to “survey meticulously” the text and operation of a challenged law to ensure that it is
neutral and of general applicability.
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534 (1993).
As SCOTUS has explained,
a law is not neutral if it treats the same conduct as lawful when undertaken for secular reasons but unlawful when undertaken for religious reasons, or visits “gratuitous restrictions on religious conduct,” among other things.
Id. at 533-35, 538.
A law is not generally applicable if “in a selective manner it imposes burdens only on conduct motivated by religious belief," including by “fail[ing] to prohibit nonreligious conduct that endangers [its] interests in a similar or greater degree than ... does the prohibited conduct.”
Id. at 534.
In other words, under this test, as applied in the COVID-19 context, any state or local law that restricts a citizen's First Amendment right to religious exercise will be stricken down as unconstitutional--even when authorized under emergency powers--where it can be shown that the distinction between nonreligious essential services and religious essential services, as applied under the law, is not
both neutral and
generally applicable.
That is precisely what happened in Mississippi recently, where the city sent police to issue $500 fines and shut down a drive-in church service which
exceeded the CDC's COVID-19 guidelines as congregants were required to remain in their cars with the windows rolled up, while at the same time permitting restaurants to operate which allowed citizens to have their windows rolled down. A federal lawsuit was then filed by the church/attendants, and the DOJ promptly intervened on their behalf citing the above principles. Just last week the city dropped all of the $500 citations it issued, conceding its error in an effort to limit its damages (though that will certainly not eliminate the claims pending against it for its clear violation of federal/constitutional rights).