More Than a Mask: Stay-at-Home Orders and Religious Freedom

COVID-19 has changed our legal universe. Many states are responding by issuing stay-at-home orders, and as cases rise, may have to prohibit gatherings again. One issue states and courts have to grapple with is the relationship between stay-at-home orders and religion. Stay-at-home orders that require closing down churches may be challenged as violating the First Amendment’s guarantee of religious freedom. Under our current jurisprudence, these cases may be handled under a highly deferential standard or under strict scrutiny—depending on the specific order in question, as well as on whether the state has a Religious Freedom Restoration Act (RFRA). We recommend, in either case, that orders be carefully crafted to impose the minimum prohibitions needed to prevent outbreaks, according to the situation, and that crafters address, generally, the specific things that increase the risk of transmission—for example, prohibit gatherings indoors that are more than in passing, rather than specific activities. We also recommend that crafters avoid drawing value-laden lines—e.g. deciding whether gun stores are more important than churches. Finally, we suggest that courts should rule in ways that support drawing reasonable lines and providing essential information. A separate question is whether stay-at-home orders that exempt churches violate the Establishment Clause’s separation of church and state; we explain why the answer is, probably, no