COVID-19 Emergency Measures and the First Amendment

By David L. Hudson, Jr.

(Updated on Dec 17, 2020)

“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”

— Justice Neil Gorsuch

The pandemic caused by the pervasive spread of the virus known as COVID-19 has placed significant pressures on government officials to act quickly to try to save lives and to slow the spread of the virus. Many officials have responded with significant restrictions in the form of emergency stay-at-home orders, executive orders closing all but “essential” businesses, and bans on public gatherings — often of more than 10 people.

Such measures have received pushback from church parishioners who want to worship together, business owners that want to re-open to avoid economic collapse, and persons who want to be able to assemble together either for communal, protesting, or other purposes. Chatter on Facebook and other social media has degenerated into a veritable hodgepodge of the political blame-game, inspired debates over federalism and the proper allocation of power between federal and state governments, and presented people with a dizzying array of quite different medical information and numbers.

No matter one’s political beliefs, this period also has placed significant strain on First Amendment freedoms. John Whitehead of the Rutherford Institute writes: “At no time in the history of this nation has the government (federal or state) ever attempted to impose such onerous restrictions on the rights of religious individuals as we are seeing play out in response to the COVID-19 pandemic.”

The question arises whether the exigencies of the current pandemic justify direct restrictions on these fundamental rights. As Supreme Court Justice Robert Jackson famously warned in Terminiello v. Chicago (1949) — albeit in dissent — “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

More to the point on health measures, the U.S. Supreme Court had rejected a challenge to a state vaccination law by a pastor named Peter Henning Jacobson. “There are manifold restraints to which every person is necessarily subject for the common good,” wrote Justice John Marshall Harlan I, the so-called “Great Dissenter” in Jacobson v. Massachusetts (1905). In this case, the police powers of Massachusetts trumped the pastor’s individual right for an exemption.

However, the Jacobson case was decided in 1905, well before the Supreme Court gave enhanced protection to a bevy of individual rights, including First Amendment freedoms.

A pro-government approach

One approach — taken by a federal district court judge in California — has been to emphasize a different standard of review in an emergency environment. U.S. District Judge Jesus G. Bernal of the Central District of California denied a request for a temporary restraining order in his April 23, 2020, decision in Gish v. Newsom.

California Governor Gavin Newsom had issued an order requiring “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” Officials in Riverside County issued an order prohibiting “public or private gatherings … including, but not limited to an auditorium, … church, … or any other indoor or outdoor space used for any non-essential purpose, including but not limited to … church.” Meanwhile, officials in San Bernardino County had issued an order allowing “faith-based services that are provided through streaming or other technology, while individuals remain in their homes” but it prohibits drive-in religious services.

Four individuals, including lead plaintiff Wendy Gish, sued Newsom and officials in the two counties, alleging “a gross abuse of their power.” They asserted in their complaint that the defendants violated their First Amendment rights to religious liberty, speech, and assembly, among other constitutional claims.

Traditionally, in modern constitutional law, if the government directly infringes on a fundamental right, such as the freedoms found in the First Amendment, a court examines whether the regulation meets the highest form of judicial review — what is known as “strict scrutiny.” This requires the government to advance that its restriction or regulation advances a compelling governmental interest advanced in the least restrictive way possible.

“During an emergency, traditional constitutional scrutiny does not apply,” Judge Bernal wrote in rejecting relief from the emergency orders. Judge Bernal upheld these restrictions under this emergency exception to traditional constitutional review. Under this type of paradigm, emergency actions are constitutional if they (1) have a “real or substantial relation to the crisis” and (2) do “not represent plain, palpable invasions of clearly protected rights.” According to Bernal, the emergency measures “easily meet that test,” as physical distancing is necessary to slow the spread of the virus. He also noted that plaintiffs “are free to gather virtually or over the phone.” He determined that “the Orders are likely a permissible exercise of executive authority during a national emergency.”

Bernal also determined that such emergency orders would be constitutional even under a more traditional and stricter form of constitutional review. He asserted that the emergency orders are constitutional even when applying traditional constitutional scrutiny. Bernal determined that the emergency orders do not target religious practices or gatherings and are facially neutral. He described the orders as “generally applicable restrictions on gatherings of all kinds.”

An individual rights approach

In sharp contrast to this ruling, another federal district court judge in Kentucky issued a very different type of ruling in On Fire Christian Center, Inc. v. Fischer. Louisville Mayor Greg Fischer had banned religious services a few days before Easter in order to prohibit large gatherings that might lead to the spread of the coronavirus. He acknowledged that he took this measure with a “heavy heart.”

On Fire Christian Center challenged this ban on religious services under the Free Exercise Clause of the First Amendment and the Kentucky Religious Freedom Restoration Act. The church noted the incongruence between banning drive-in religious services but allowing drive-ins to liquor stores and other businesses.

U.S. District Judge Justin R. Walker ruled in favor of the church. He began his opinion with the memorable line: “On Holy Thursday, an American mayor criminalized the communal celebration of Easter.” Walker specifically noted the differential treatment of churches and liquor stores, writing: “Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs — including, for example, drive-through liquor stores.”

Walker acknowledged that “nothing in this legal analysis should be read to imply that the rules of the road in constitutional law remain rigidly fixed in the time of a national emergency,” citing the Supreme Court’s decision in Jacobson. “But even under Jacobson, constitutional rights still exist,” wrote Walker. “Among them is the freedom to worship as we choose.”

A little more than a week later, the mayor and the church reached an agreement that allows the church to conduct drive-in worship services. “We are grateful to Mayor Fischer and Louisville city officials who worked with us to ensure their policies are both consistent with the Constitution and the CDC’s guidelines,” said Roger Byron, senior counsel for First Liberty Institute, in a news release. “During this challenging time, we need to see more of this kind of cooperation between government officials and the religious community.”

Supreme Court actions

The decisions by Judge Bernal and Judge Walker were just the tip of an iceberg. Lawsuits continue to flood the courts, alleging violations of various constitutional rights. Some of these disputes have even reached the U.S. Supreme Court. The responses of the Justices reflect the division between the two lower court decisions discussed above. The Supreme Court initially declined to issue a preliminary injunction in a decision on May 29, 2020, in South Bay Unified Pentecostal Church v. Newsom by a 5-4 vote. However, on November 25, 2020, the Court reached a different decision by a 5-4 vote and granted injunctive relief in Roman Catholic Diocese of Brooklyn v. Cuomo.

The different compositions of the Court during these cases proved outcome-determinative. In South Bay, Justice Ruth Bader Ginsburg was still on the Court and voted with the majority to deny injunctive relief to a religious group challenging COVID-related restrictions on religious gatherings. However, Justice Ginsburg passed away after a historic 27-year career on the High Court and was replaced by Justice Amy Coney Barrett. Justice Barrett voted with the four dissenters in South Bay to form a majority in Roman Catholic Diocese granting injunctive relief. It is hard to argue with Adam Liptak of The New York Times when he writes that Justice Barrett “played a decisive role.”

South Bay Unified Pentecostal Church v. Newsom

California Governor Newsom had issued emergency COVID-related restrictions on public gatherings that limited religious services to 25% of building capacity or 100 persons. The South Bay Pentecostal Church challenged this restriction as a stark violation of the Free Exercise Clause, among other constitutional claims.

Chief Justice John Roberts wrote an opinion for a five-member majority that denied injunctive relief. Roberts emphasized that there were similar limitations on attendance at secular-based gatherings, such as sporting events, concerts, and theatrical performances. He also emphasized that the Supreme Court should defer to “politically accountable officials” when it comes to public safety and welfare. Thus, elected public officials should enjoy broad latitude and flexibility in this perilous time. “Where those broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people,” he wrote.

“The notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable,” Roberts concluded.

Roman Catholic Diocese of Brooklyn v. Cuomo

However, as noted earlier, the composition of the U.S. Supreme Court had changed. The four dissenters in South Bay — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — were joined by newly minted Justice Barrett. Additionally, New York Governor Andrew Cuomo had passed an executive order which placed further restrictions on religious gatherings than Governor Newsom had issued.

Cuomo’s executive order created different-colored zones that limited in-person gatherings. In a red zone, no more than 10 could attend a religious service, while in an orange zone no more than 25 could attend such services. Different religious groups — including the Roman Catholic Diocese and Agudath Israel, an Orthodox Jewish establishment — sued and sought a preliminary injunction from these restrictive orders.

In a per curiam (“for the court”) opinion, the Supreme Court granted the injunction. “The applicants have made a strong showing that the challenged restrictions violate the minimum requirement of neutrality to religion,” the ruling read. The justices acknowledged that they were not public health experts but stressed that “even in a pandemic the Constitution cannot be put away and forgotten.” The opinion declared forcefully: “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

Justice Gorsuch authored a powerful concurring opinion that began with the admonition: “Government is not free to disregard the First Amendment in times of crisis.” He questioned the New York executive order that placed restrictions on churches but less severe restrictions on a variety of secular businesses. He noted that persons could gather at bus stations, airports, laundromats, banks, hardware stores, and liquor stores — but not at churches. “That is exactly the kind of discrimination the First Amendment forbids.” In memorable language, he added: “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”

Justice Kavanaugh also wrote a concurring opinion. He acknowledged that “COVID-19 pandemic remains extraordinarily serious and deadly.” But he cautioned that “judicial deference in an emergency or crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech or the like are raised.”

Four justices dissented — with Chief Justice Roberts, Justice Stephen Breyer, and Justice Sonia Sotomayor writing separately. The Chief Justice admitted that the severe restrictions may indeed violate the Free Exercise Clause but cautioned that “[i]t is not necessary, however, for us to rule on that serious and difficult question at this time.” He also noted that the governor had moved the religious services to a yellow zone, where as many as 50 could attend a gathering.

Justice Breyer emphasized the uncertainty surrounding the epidemic and the spikes in COVID cases necessitating “the need for quick [executive] action.” In other words, Breyer took the view that justices should defer to elected officials on questions of medicine and science.

Justice Sotomayor questioned the Court’s different outcome in these cases with the Court’s earlier decisions in South Bay and Calvary Chapel. She emphasized that the restrictions in New York with respect to religious gatherings were less onerous than restrictions on some secular activities, such as spectator sporting events, concerts, and theatrical performances. She characterized the more lenient treatment of certain secular activities — such as visiting grocery stores, laundromats, or banks — as “dissimilar activities.” She warned that “Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”

Conclusion

The decisions by Judge Bernal and Judge Walker reflect a fundamentally different approach to interpreting First Amendment freedoms in a time of emergency. These were only a couple of the first decisions related to COVID-19 and the First Amendment. Many other decisions have come down regarding restrictions on First Amendment freedoms during this pandemic. Now, the issue of various COVID-19 restrictions has reached the U.S. Supreme Court on more than one occasion.

The Justices on the Supreme Court seem to reflect a similar divide to Bernal and Walker. Both the South Bay and Roman Diocese cases were decided by a single vote. In the latest decision, Roman Diocese, the five justices in the majority seemed to take strong issue with the fact that limitations on religious gatherings impose a direct burden on the religious liberty of churches and their attendees. These justices seem particularly attuned to the idea that even during a pandemic, government officials cannot treat religious entities worse that similarly-situated secular entities. Such disparate treatment raises the specter of what Justice Gorsuch called “exactly the kind of discrimination the First Amendment forbids.”

But, one thing that should not be lost in this tough time is a commitment to the first 45 words of the Bill of Rights. As First Amendment defender Gene Policinski writes: “The COVID-19 outbreak is a real threat to public health, but it should not be a reason for long-term damage to our core freedoms.”

Additional Resources 

• First Amendment News 251: "Public health and the First Amendment in the age of COVID-19”
• Timeline: "Campus Censorship of Scientific and Medical Speech”