President Trump has recently extended the recommended time period for social distancing for several more weeks. The majority of state governors and local authorities have taken a harsher line than the President of the United Stated and have ordered their residents to stay at home, except for essential activities. Even though what counts as an essential activity may vary from state to state, no state has included church services in their list of essential activities.
However, this has not stopped some megachurches from continuing to pack the pews in violation of these orders. One such pastor, Rodney Howard-Browne, was recently arrested in Florida for refusing to put an end to his packed services at the River at Tampa Bay Church. The arrest happened because the services were held after Hillsborough County, home to the River at Tampa Bay Church, enacted a “Safer-at-Home” order banning all “faith-based events”, as well as several other types of events, that bring together more than 10 people.
Rev. Howard-Browne’s arrest raises the question of how far can the government go in the name of public safety to restrict the First Amendment rights of assembly and religion. The First Amendment states in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof […] or the right for people peaceably to assemble […] .” The Fourteenth Amendment imparts the legal obligations of the First Amendment to state governments, so that a state government also cannot pass laws that arbitrarily restrict religious freedom or the freedom of assembly. However, as with many laws in this country, there is always an exception to the rule.
The first part of the exception that we will look at is when governments can actually impose limitations on the exercise of religion. A government is prohibited from enacting laws that directly target the practice of religion exclusively. However, a government is allowed to enact a law with a non-religion focus that accidentally results in impacting religious practices. The Supreme Court of the United States settled this matter in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), when it held that Oregon’s law criminalizing intentional possession of peyote by anyone for any reason was legal, even though there were residents of Oregon who were using peyote for religious purposes. Thus, a state or local government is allowed to prohibit certain religious activities, such as gathering in large groups for in-person worship services, as long as the intent of such a ban is not motivated by suppression of religion. While most “Safer-at-Home” orders banning gatherings of a certain size have banned all gatherings of a certain size without specifically identifying the purposes for which people are not allowed to gather, Hillsborough County specifically identified “faith-based events” in its list of examples of banned gatherings. Thus, one could argue that Hillsborough County is targeting religious activities because it specifically mentioned religious activities as part of what was to be banned. If a court were to determine that the Safer-at-Home order does target religious activities, rather than religious activities being incidentally affected as a result of the enforcement of a neutral law.
The second part of the exception is unlawful assembly. All states have some variation on a law prohibiting unlawful assemblies, and the definition on what constitutes an unlawful assembly is generally the same across the country. Essentially, an unlawful assembly is where three or more gathered to engage in an act that is, in and of itself, unlawful, or engage in an act that, while lawful, is done in a manner that disturbs the peace. It should be noted that some states such as California only need 2 people to be gathered for there to be an assembly. Given that COVID-19 is known to transmit from person-to-person via the air, gathering in large groups where proper social distancing is impossible to maintain can be construed as an otherwise lawful activity done in a manner that disturbs the peace because it puts the health and safety of the larger community at risk.
Therefore, while Rev. Howard-Browne may think that his actions were protected by the First Amendment, he arguably acted outside the scope of the protection afforded by the First Amendment. By gathering several parishioners in a confined space during the pandemic, Rev. Howard-Browne actively engaged in an unlawful assembly that put the health and safety of the general community at risk, thereby disturbing the peace of the community. With that being said, Hillsborough County may want to think about the wording of their order so as not to appear targeting religious activities, lest their otherwise valid “Safer-at-Home” order risk appearing to violate the First Amendment.