is the Gary T. Schwartz Distinguished Professor of Law at UCLA.
If people are allowed to go to bars, restaurants, libraries, schools, and factories (with suitable social distancing), should they also be allowed to go to church?
From a memorandum released Wednesday by Kansas Attorney General Derek Schmidt(see also an argument the same day written by Samuel MacRoberts at the Kansas Justice Institute):
[Kansas Governor Laura Kelly’s] EO 20-18, which by its terms takes effect today, revises guidance for religious gatherings while it remains in effect. Its key changes are:
“Churches or other religious facilities” are now expressly covered by the prohibition on “mass gatherings” rather than being exempted as they were previously.
More than 10 people are prohibited from convening “in a confined or enclosed space at the same time,” including in churches or other religious facilities.
“Churches or other religious services or activities” are prohibited from having more than 10 congregants or parishioners in the same building or confined or enclosed space, but a larger number of persons who are conducting the service itself may gather provided social distancing and similar requirements are maintained.
… EO 20-18 does not prohibit Kansans from leaving their homes to perform or attend religious or faith-based services or activities, nor does it impose the new prohibition on gatherings exceeding 10 persons on religious gatherings that are not in “the same building or confined or enclosed space” (e.g., outdoors)…. {Requirements for social distancing, hygiene and other COVID-19 prevention measures remain in effect for all gatherings, including religious gatherings not subject to the new 10-person limitation.}
The Kansas Preservation of Religious Freedom Act … provides: “Government shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person: (1) Is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” … It protects the “exercise of religion,” which is defined broadly and expressly includes “the right to act … in a manner substantially motivated by a sincerely-held religious tenet or belief,” which certainly includes attending … worship. It restrains government from “substantially burden[ing]” the exercise of religion, and “burden” specifically includes “assessing criminal … penalties.” …
[W]e have no doubt the restrictions on religious gatherings in EO 20-18 may serve a compelling governmental interest of protecting the public health by slowing the spread of COVID-19. But the executive order also must be the “least restrictive means” of furthering that compelling interest. And the burden is on the government to prove by clear and convincing evidence that no less-restrictive means is available.
It is doubtful the government can meet that burden here.
First, the government cannot show by clear and convincing evidence that it is currently necessary to subject every church or other religious services or activities throughout the state to the requirements in EO 20-18 to slow the spread of COVID-19. Current Centers for Disease Control guidance for faith-based organizationsrecommends a graduated approach based on community risk. That individually tailored less-restrictive means is absent from the blanket statewide approach of EO 20-18.
Second, EO 20-18 exempts 26 categories of activities or facilities from its mass- gathering prohibitions, see EO 20-18, paragraph 2.a-z, just as the prior version of the mass-gatherings order (Executive Order 20-14) had also exempted religious activities. Indeed, only religious activities (and non-religious funerals) are singled out for increased regulation under EO 20-18—while other indoor gatherings that invite similar interpersonal interaction and thus pose similar public health risk (such as gathering in shopping malls or other retail establishments or in libraries) remain unregulated except by the less-restrictive means of general social distancing and hygiene guidelines.
Third, EO 20-18 offers no justification for why voluntary compliance had failed to satisfy the compelling public health interest or why criminal penalties are now necessary to promote compliance by Kansans engaged in religious services or activities (but not, e.g., by those engaged in shopping, child care, providing government or legal services, or being detoxified). Indeed, the continued reliance on social-distancing and hygiene restrictions for mass gatherings in at least 26 other categories suggests the new burdens on religious services or activities—under penalty of arrest, imprisonment or criminal fine—are not the least-restrictive option to satisfy the State’s compelling interest.
Separate from the Religious Freedom Act, … Section 7 of the Kansas Bill of Rights provides (emphasis added):
“The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on account of religious belief.”
Kansas courts interpreting this provision have adopted a version of a strict scrutiny test substantially similar to that in the Religious Freedom Act….
To help prevent the spread of COVID-19, the Office of the Attorney General advises Kansans to adhere to the limitations on religious and faith-based gatherings set forth in Executive Order 20-18. However, for the reasons set forth above, the provisions of the governor’s order that purport to criminalize certain gatherings for religious services or activities likely violate both state statute and the Kansas Constitution, which would render them void and unenforceable. Because no Kansan should be threatened with fine or imprisonment, arrested, or prosecuted for performing or attending church or other religious services (which even during the current state of disaster emergency remain an “essential function” recognized by EO 20-16), law enforcement officers are advised to encourage cooperative compliance with the new provisions of EO 20-18 and to avoid engaging in criminal enforcement of its limitations on religious facilities, services or activities.
I think the AG’s analysis is correct, given the way the Governor’s order works; but I think it’s worth elaborating further on this.
In Employment Division v. Smith, the Court held (rightly, I think, for reasons I discuss at length here) that the Free Exercise Clause bans discrimination against religious practice, but doesn’t require religious exemptions from generally applicable laws.
Some courts and academics have taken the view that, whenever a law bans an activity but allows some secular exemptions, it stops being “generally applicable,” so that religious exemptions are indeed presumptively required. The most prominent example is the opinion of then-Judge Alito in Fraternal Order of Police v. City of Newark, who held that the Free Exercise Clause required religious exemptions from a no-beards policy for police officers, because the department provides an exemption for officers who had medical reasons not to shave:
[Under the Free Exercise Clause, the government may not decide] that secular motivations are more important than religious motivations…. [T]he Department’s decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger [strict scrutiny]. [T]he medical exemption … indicates that the Department has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not…. [W]hen the government makes a value judgment in favor of secular motivations, but not religious motivations, the government’s actions must survive heightened scrutiny.
But I don’t think that’s consistent with the Court’s decision in Smith. Most laws have many exemptions, including ones that offer favored treatment to certain secular motivations. Title VII of the Civil Rights Act generally bans employment discrimination, but not by small employers, or when a provision is a “bona fide occupational qualification” (a narrow exemption, but an important one); these provisions are broader than the narrow exception that the Court has recognized under another Free Exercise Clause theory for ministerial employees of churches. The Copyright Act restricts certain uses of others’ copyrighted works in § 106, and then has more than 15 sections (and many more subsections) of exceptions in §§ 107-122. Trespass law has exceptions for necessity, for adverse possession, for eminent domain, and for other reasons.
Likewise, battery is a crime—but it has exceptions, including for necessary defense of person, necessary defense of property, performing a lawful arrest, and more. I take it we’d agree that the government shouldn’t allow me to punch you as retaliation for your blasphemy; but that means that it treats a secular motivation (protecting my property) as more important than a religious motivation (protecting God against insults, if that’s how I conceptualize blasphemy). I don’t think the Free Exercise Clause condemns the denial of religious exemptions in such cases. More broadly, I don’t think that my religious motivation for punching you, for infringing your copyright, or for discriminating against you in employment.
Yet when a legislature expressly enacts a Religious Freedom Restoration Act, it is indeed calling for broad protection for religious practice; and it’s reversing the power (since a RFRA is just a statute) to exclude a law from the RFRA exemption regime, when it thinks that religious exemptions really shouldn’t be authorized. And when the government has a broad range of exceptions for secular activities that are pretty similar to their religious analogs, or perhaps even more risky, then it does seem likely that denying a religious exemption is not “the least restrictive means of furthering [the] compelling governmental interest.”
And this applies, I think, to the Kansas Governor’s order. The order exempts, among other facilities,
- schools,
- shopping malls,
- libraries,
- restaurants and bars,
- manufacturing, processing, distribution, and production facilities,
at least so long as they maintain suitable social distancing measures.
This suggests that exempting churches, so long as they maintain similar social distancing measures (e.g., “[p]reserve … 6 feet between people,” which is the spacing required between tables or bar stools at restaurants and bars, or not being “within arm’s length of one another for more than 10 minutes,” which is required for shopping malls), would not unacceptably undermine the compelling government interest.
Again, I don’t think the compelling interest test should be applied to generally applicable laws under the Free Exercise Clause, and I think the Governor’s order, despite its exceptions, is still generally applicable for Free Exercise Clause purposes.
But the Kansas Legislature provided religious objectors with presumptive protection that goes beyond the minimum that the Free Exercise Clause requires. The Legislature (like many others, including a nearly unanimous Congress in 1993, in a statute that remains applicable as to federal laws) required the government to grant religious exemptions when they don’t unacceptably undermine a compelling government interest. The Legislature could exclude emergency statutes from that rule, but it hasn’t. That appears to be the law in Kansas, and the Governor’s orders should comply with it.