The President Cannot Order the States to Open Houses of Worship During COVID-19

Updated:

President Trump announced that houses of worship should be opened this weekend despite the pandemic. He stated:

Today I am identifying houses of worship—churches, synagogue and mosques—as essential places that provide essential services . . . . Some governors have deemed liquor stores and abortion clinics as essential but have left out churches and other houses of worship. It’s not right.

As an initial matter, his comparators are not similar. It is increasingly clear that COVID-19 is most transmissible in closed spaces where people are close together, and where they are talking and/or singing. Neither liquor stores nor reproductive health services operate on that model. But houses of worship sure do.

He also does not have the power to force states to do the bidding of religious organizations for several reasons.

First, the federal government lacks the authority to regulate religious liberty in the states as the Supreme Court made plain when it invalidated the Religious Freedom Restoration Act (RFRA) in Boerne v. Flores in 1997. While it is my view that RFRA is unconstitutional at many levels, there is no debate that Boerne held at the least that the federal government could not burden the states with the extreme religious liberty standard contained in RFRA. It is unconstitutional for the federal government to impose its view of religious liberty (which goes well beyond what the First Amendment requires) on state and local governments.

It’s a long story, which you can read in God vs. the Gavel: The Perils of Extreme Religious Liberty, but essentially, after Boerne, religious lobbyists went back to Congress seeking once again to obtain extreme rights against the government for believers. They succeeded in obtaining a new RFRA limited to federal law and the Religious Land Use and Institutionalized Persons Act (RLUIPA). But the federalism arguments that struck down the original RFRA have not changed.

Second, the Department of Justice is encouraging churches to sue the states for violating the First Amendment. But the First Amendment is quite clear that a state may enforce a neutral law of general applicability in Employment Div. v. Smith. Even if they were to make an argument that somehow churches are being treated differently from similarly situated uses, the government would be able to show it has a compelling interest in saving lives from the pandemic. The Ninth Circuit correctly ruled that the California orders are constitutional for these reasons. Plain old common sense was enough to uphold the orders to keep houses of worship closed for now. They quoted Justice Robert Jackson saying: if a court “does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Amen.

Third, maybe Trump and his Department of Justice believe that RLUIPA gives them the power to bully states into opening houses of worship despite the dangers to public health, but they would be incorrect. RLUIPA hands religious landowners the power to fight local and state land use regulations. It’s not a free-floating power of the federal government to give preferred status to religious organizations over all others. The restrictions on houses of worship in the states flow from the power of the governors over public health, which RLUIPA simply does not touch.

But let them try it, because it might be entertaining. The DOJ would have to twist itself into a pretzel to explain to a federal judge how to square this COVID-19 position with its previous arguments in support of religious landowners against state and local government.

RLUIPA was driven by an argument that has been repeated ad nauseum in the federal courts: houses of worship were being “discriminated” against because they weren’t being treated like other “places of public assembly.” For example, it is argued that a church should be subjected to the same rules as a movie theater, or a concert hall, or a fraternal lodge. They have also migrated to an argument that houses of worship are just like schools. Those arguments are all about getting houses of worship to be able to locate wherever they choose in violation of local land use and zoning codes.

The truth is that houses of worship and other places of public assembly do share similar features: they involve communal, indoor gatherings where many people are close to each other. Correct me if I am wrong, but isn’t that the very type of place that we now know is the most dangerous during COVID-19?

Thus, the DOJ has argued in dozens of RLUIPA cases that houses of worship are supposed to be treated like “places of public assembly,” which are precisely the uses public health officials now are most concerned about. This reasoning—equating houses of worship with places of public assembly– undercuts Trump’s fiat that houses of worship should open now without delay. They should open just as soon as movie theaters and schools, with all of the social distancing and mask requirements needed. It’s not just about those who attend the service, though their lives should matter. It’s also about the public they meet the rest of the week after being in a space that is configured beautifully for the spread of the virus.

Many wise members of the clergy are resisting opening before it is safe. I would assume most of them oppose needless death as part of their faith. Others, foolishly, are ignoring the science and the fact that the virus doesn’t care if you share air space in a theater, shul, or church. Either way, COVID-19 is more than happy to sicken and kill. Already, we have seen non-conforming congregations and choirs affected just as the scientists predicted, sometimes resulting in deaths of believers, pastors, and priests.

Trump seems to think he has the power to force governors to ignore the science that protects human life from this pandemic. He doesn’t. Thank God.