Christian Lawyer: Churches’ Rights and Responsibilities When Reopening in the Pandemic

"When a law would infringe on Americans’ fundamental freedoms, such as the freedom of religious exercise or the freedom of assembly, it is subject to what the law calls 'strict scrutiny,' which means that the courts will find a law unconstitutional unless the government can show three things..." - 9 Marks

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dmyers's picture

A weakness of this article is that it discusses only the "strict scrutiny" analysis. That is the analysis that is most protective of free exercise, and laws rarely survive the analysis because government rarely takes care -- even where there's a compelling interest -- to narrowly tailor the law and use the least restrictive means to achieve the law's purpose. Unfortunately, many courts are avoiding strict scrutiny entirely by finding that the lockdown laws don't treat churches differently than other entities. Hence, it's a neutral law of general applicability and it's ok. I think those courts are usually if not always wrong, but churches need to be aware that they can't assume strict scrutiny will apply so that they're likely to win if they sue. 

Aaron Blumer's picture


Why would courts supporting laws of general applicability be "wrong"? If it applies generally, it applies generally.

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

dmyers's picture

Because the lockdown laws do in fact treat churches less favorably than other entities.  As soon as you have a list of exceptions to a supposed law of general applicability, you no longer have a law of general applicability.  It's possible, perhaps, to envision a lockdown law that has so few exceptions it can fairly be described as generally applicable, but I'm not aware of any state that has such a lockdown law (not even my home state of Idaho).  If entire categories of businesses are exempted from closure because they're deemed "essential" and not because they're inherently safe from virus spread, including politically favored/state tax generating businesses such as liquor stores and abortion clinics, my position would be that a court should apply strict scrutiny if a church challenges the lockdown law.  Of course, as I noted initially, a number of courts haven't done so, but courts (especially lower courts) haven't had a great record on free exercise issues for a long time.

dmyers's picture

And ... right on time the US Supreme Court issues decisions where the results turn on whether the lockdown orders are laws of general applicability or laws that treat churches differently and therefore receive strict scrutiny. Unfortunately, Chief Justice Roberts votes with the 4 liberals and they get it wrong. 

TylerR's picture


It's almost as though you're a lawyer who knows what he's talking about! I appreciate your comments, here.

Tyler is a pastor in Olympia, WA and works in State government. He's the author of the book What's It Mean to Be a Baptist?

Aaron Blumer's picture


 As soon as you have a list of exceptions to a supposed law of general applicability, you no longer have a law of general applicability. 

It would depend a great deal on what category the exceptions are in. Events/organizations/groups that meet all at once regularly in numbers of 50 or more would be its own category and what's going on in places where people trickle in an out in small numbers isn't really relevant.

So if the rule applies to all gatherings of x or more, it's definitely general applicability. And even if there are a few exceptions in the category, if those exceptions are warranted, you still don't necessarily have an end of general applicability at that point.

This is really not, for the most part, a religious liberty issue, any more than it's a first amendment right of assembly issue. And it's not like we have no national history to look back on to see how these things have worked in the past.

I'd like to be able to say that "suggestions" and "guidelines" should be enough, without any penalties/compulsion. But the way many congregations have insisted that they ought to be exceptions to the same rules that apply to weddings, funerals, and sporting events kind of argues that in some places a firmer hand may be necessary.

There have been lots of problems with local-appropriateness in this whole thing... places where the rules don't fit the conditions in the area. This is regrettable but understandable given the haste that seemed prudent at the time. It's not persecution or oppression though. And the handful of cases where that has actually happened, the legal process has worked quite well to pull it back. In some cases, the potential for a legal process has worked well even without any courts involved.

Lockdown orders are interesting sort of rule making. In Wisconsin, and a few other states, courts ruled that they can only be relatively short term. So it's an issue of where the governor's authority ends. This makes sense because they aren't laws enacted by the legislature or even administrative rules that go through the public-input rulemaking processes. I wouldn't be surprised if a case on that issue reached SCOTUS and they basically said governors' emergency orders are for emergencies and the legislatures need to get involved for longer-term rules, or something like that.

Of course, I'm not a lawyer, but these are observations I've read from lawyers, many of them with experience in constitutional law in particular... and then you have the court cases themselves where judges have articulated these things.

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

dmyers's picture

First, at least you're supporting my first comment above that the OP was too optimistic in assuming that courts would apply the strict scrutiny standard in all lockdown cases.  Clearly, not all will.

Second, there are trial level and appellate decisions in both state and federal courts on both sides of this issue, and the Supreme Court is divided 5-4, so it's demonstrably wrong to be dismissive of either argument (e.g., "This is really not, for the most part, a religious liberty issue").  And I think it's important to note that when Roberts is the swing vote, there's a good chance that it's a political outcome rather than a principled one.  Roberts, as many previous Chief Justices, is more concerned about preserving the Supreme Court's prestige and reputation as an institution than he is in getting individual cases right, the prime example being the Obamacare case.  What particular calculus he used to decide that this was the more politically advantageous outcome, I do not know.  I'm sure the exceptional relief sought -- an injunction rather than merely a stay or a declaration of the law -- played a large part, as his concurrence says.  But he also got into the merits and pooh-poohed (as you're doing) the argument that the lockdown order's exceptions disfavor churches (he says, "the Order exempts or treats more leniently only dissimilar activities").

Basically, you're adopting Justice Roberts's argument and I'm adopting Justice Kavanaugh's (and the 6th Circuit's, which Kavanaugh quotes quite a bit).  I think it's wrong, even silly, to dismiss any activity other than "Events/organizations/groups that meet all at once regularly in numbers of 50 or more" as similar to church meetings.  As Kavanaugh points out, no other business is subject to a 25% of capacity cap, regardless of the number of people, the amount of space, or the duration of the contact.  So factory workers can be 6 feet from each other for 8-10 hours at a time, in a small or large room, yelling at each other to be heard over the din; office workers the same way (hopefully without the yelling); restaurant goers can be 6 feet from each other (or less, if they're at the same table with friends who aren't from the same household) for one, two, or any number of hours; bookstore patrons can be together for hours of browsing; salon workers and customers can be very close to each other for lengthy styling sessions; and so forth.  To me, that's not a law of general applicability; it's a law that disfavors religious exercise compared to other behavior that carries at least an equivalent health risk.  And that the government cannot and should not do, and the courts should re-balance the scales when the government, even carelessly, gets it wrong.  Some courts have, some haven't.  Unfortunately, with yesterday's Supreme Court decision, churches will have a more uphill battle from here on out.  It's a good thing that most states that have been (in my view) overly restrictive seem to be coming to the end of their restrictions.  (The Illinois companion case to the California case the Court decided yesterday was mooted because Illinois capitulated and softened its restrictions.)

I'm sure you've read observations and seen court decisions on the side you're taking, but have you not seen other commentaries/decisions on the my side?  As for "experience in constitutional law in particular," I've handled numerous constitutional cases, including free speech and free exercise and church-related cases, interned for the Rutherford Institute (twice), clerked for a federal judge, written numerous amicus curiae briefs to the Supreme Court, and written petitions for certiorari to the Supreme Court (never got one accepted, regrettably -- every litigator wants to argue in front of the Supreme Court).  It's been far from my sole or even primary practice, and I'm not an academic with ability to focus on nothing else, but I have some experience, and probably more than most "regular" lawyers.