State and municipal governments have the power to protect their citizens from the spread of infectious disease. “There is no pandemic exception, however, to the fundamental liberties the Constitution safeguards.” So wrote the Justice Department’s civil-rights lawyers, intervening on behalf of a local church in its lawsuit against city authorities in Mississippi, who had prohibited communal religious services, even though those services rigorously honored governmental social-distancing guidelines.
Faced with the Justice Department’s opposition, the city of Greenville has backed down. The Temple Baptist Church, which had sued the city, will be permitted to proceed with its drive-in services, convened in the church parking lot over FM radio.
The case is a significant one, given the ongoing tension between (a) governmental restrictions to avoid the spread of COVID-19 and (b) individual liberties vouchsafed by our fundamental law, such as the freedoms to travel, associate with others, and exercise one’s religion. As I’ve noted before, the history of our country teaches that, in times of crisis, the courts tend to give a wide berth to executive police powers. When excesses inevitably occur in enforcing restrictions, resulting lawsuits are usually not decided until the emergency has subsided.
The coronavirus epidemic is proving to be an exception to this pattern.
In part, this is because the virus, though serious and potentially lethal, is very different from terrorist attacks, the outbreak of violent insurrection, and even natural catastrophes such as earthquakes or tsunamis. COVID-19 poses no threat of instantaneous mass casualties. The virus is a slow-motion threat. The vast majority of Americans are not infected, and only a very small percentage of those infected are dying. There is no cause for martial law. The courts are open and functioning. There is a temporary scale-back in judicial operations, but judges are available to hear and rule on emergent constitutional violations.
Moreover, the federal government is now encouraging the courts to act, to defend our liberties. In crises past, involving physical and forcible threats of instantaneous mass casualties, all levels of government have generally unified on the side of security. But here, in the absence of such threats, the Justice Department is taking the position that constitutional liberties do not forfeit their exalted status. Governmental protective actions must reasonably accommodate our freedoms.
Recall that Justice Department spokeswoman Kerri Kupec announced last week that Attorney General Bill Barr was monitoring reported instances of draconian enforcement of social-distancing measures against religious institutions. She added, “Expect action from DOJ next week.”
DOJ has followed through.
Mississippi’s COVID-19 protocols acknowledge that religious institutions are “essential” services. They are thus permitted to operate with significant restrictions, as are other essential services, such as restaurants. These restrictions include social-distancing mandates. Seeking to conduct regular services while adhering to the mandates, the Temple Baptist Church organized drive-in services. Those attending, in the church parking lot, had to remain in their cars with the windows rolled up. The cars were parked farther apart than the six-foot social-distancing standard for people outside their cars. The services were then broadcast over a low-power FM radio station. The church does not have a website or the ability to stream services online; and in any event, many church members lack social-media accounts and other online amenities.
Nevertheless, on April 8, the city of Greenville dispatched eight of its uniformed officers to disrupt a service and disperse the church members. In truth, there was no threat or violation of social-distancing protocols until the police arrived. The officers knocked on the car windows, ordering attendees to roll them down. The police spoke with the occupants of the vehicles, demanded driver’s licenses, and wrote citations with $500 fines.
The church thus filed its lawsuit in Mississippi federal district court, claiming violations of the members’ federal constitutional right to free exercise of religion and their right, under the state’s Religious Freedom Restoration Act (RFRA), to be free of undue burdens on religious practices.
The Justice Department’s Civil Rights Division argued that the church appears to be correct on both grounds. Under federal law, though not a party to the lawsuit, DOJ was authorized to intervene in order to further the federal government’s interests. These include preventing law-enforcement officials from engaging in a pattern or practice that deprives individuals of their lawful rights.
Like all rights, the right to free exercise of religion is not absolute. The Supreme Court has held that religious believers are subject to “neutral, generally applicable laws” — i.e., laws that do not evince hostility to religion and that apply to everyone. As a rule, this must be the case, lest every person became a law unto himself or herself — avoiding society’s laws simply by citing religious beliefs, whether or not sincerely held.
That said, laws are not neutral and generally applicable if they are enforced in a manner that discriminates against religion.
Here, patently, the city of Greenville has been discriminating against religious institutions. The most blatant example, cited by the Justice Department’s submission, is the comparison between churches and restaurants. Both are considered “essential” and ostensibly permitted to operate as such. Yet the city permits food delivery by drive-through service, where drivers roll down their car windows and transact in close quarters with restaurant staff. By contrast, the city is forbidding communal religious rites, during which people remain in their cars with the windows rolled up, distant from one another.
This unequal treatment of the church offends the Constitution.
Moreover, Mississippi’s RFRA (like the federal RFRA, which does not apply to the states) requires that if state action is imposing a burden on religion, the action is illegal unless the state can demonstrate (a) a compelling governmental interest and (b) that the regulatory action is the “least restrictive means” of furthering that interest.
Here, there is no doubt that city officials, like the state and federal governments, have a compelling interest in protecting the public by ordering measures reasonably calculated to prevent the spread of infectious disease. Still, the complete prohibition of communal religious services is not the least restrictive alternative. As the church illustrates, the communal services are honoring social-distancing mandates. As such, they pose no realistic threat. Indeed, they are less threatening than many activities the city permits under the social-distancing regime, to say nothing of the threat the police caused in breaking up the religious service.
It was on Monday that the Justice Department filed its statement of interest, intervening on the church’s behalf. By Tuesday, the city had caved on its overwrought prohibition. This is a welcome sign. As recounted in my column last weekend, incidents of draconian and politicized enforcement of coronavirus restrictions have been mounting. Now, cities and states have reason to know they have gone too far; and the Justice Department knows swift, corrective pushback can be effective.