1 1 (April 16, 2020)

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                   Resarh Service

Banning Religious Assemblies to Stop the

Spread of COVID-19

April 16, 2020
Most of the United States is now subject to some form of state or local order directing residents to stay at
home and closing nonessential businesses in response to Coronavirus Disease 2019 (COVID-19). While
the particulars of the orders vary, some state and local orders prohibit in-person religious gatherings and
require houses of worship to shut down physical facilities. To the extent that the orders burden residents'
exercise of religion, they may implicate federal and state protections for religious freedom, including the
Free Exercise Clause of the U.S. Constitution's First Amendment. Some of these bans are already being
challenged in court, and at least one Kentucky church has prevailed in its legal challenge: on April 11,
2020, a federal district court entered a temporary restraining order preventing the Louisville mayor from
prohibiting drive-in church services. By contrast, a day earlier, another federal court had declined to
grant a California church an exemption from a San Diego order prohibiting in-person religious gatherings.
This Legal Sidebar explores legal challenges to orders prohibiting religious gatherings, focusing on Free
Exercise Clause arguments. A separate Sidebar discusses other First Amendment considerations raised by
the gathering bans, including whether stay-at-home orders violate federal constitutional protections for
freedom of speech.

Legal Background: Free Exercise Clause

The First Amendment to the U.S. Constitution bars federal and state governments from prohibiting the
free exercise of religion. (The First Amendment applies to state governments through the Fourteenth
Amendment.) Governments may not regulate religious beliefs, for example, by compelling people to
affirm certain views or punishing the expression of specific beliefs. Governments also may not punish
religiously motivated actions if the government is motivated by a purpose to disapprove of a specific
religion or religion in general. Thus, the Supreme Court has said that a law specifically prohibiting casting
statues for worship or bowing down before a golden calf' would doubtless be unconstitutional.
However, governments can regulate religious actions through laws of general applicability that do not
specifically target religious activity. In Employment Division v. Smith, the Supreme Court held that a state
could, without violating the Free Exercise Clause, deny unemployment benefits to two members of a
Native American church who had used peyote for sacramental purposes. The church members' peyote use
violated state drug laws: criminal laws that generally prohibited the use of certain drugs and were not
                                                                 Congressional Research Service

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