COVID Closure of Churches
Forced closure of houses of worship during the Covid pandemic demonstrated how far-reaching administrative edicts could be. In the early weeks of the pandemic, amidst uncertainty about the virus, most Americans were willing to adjust their normal behavior out of an abundance of caution in the face of a virus with an unknown lethality. They complied with hastily crafted shutdown regulations as part of a good-faith effort to prevent the virus from overwhelming hospitals and emergency rooms.
But “good faith” hardly describes the subsequent prolonged closure of houses of worship. Before too long, these hastily crafted and overly restrictive regulations, which were not voted on by elected legislatures, could no longer be justified. Free exercise of religion is not only a constitutional right, but also a natural right. The ability to exercise that right came to the fore when American Christians were set to celebrate Easter in April 2020 one month into the lockdown. As public morale was low, Christians sought to find refuge in worshipping together during perhaps their most important holiday, even while taking realistic precautions. Yet, these Americans faced steady headwinds even when they tried to abide by federal, state, and local regulations preventing them from worshipping together.
In one dramatic example On Fire Christian Center of Louisville, Kentucky modified its Easter 2020 service to gather its congregation not indoors, not even outdoors, but rather in a “drive-in church service in accordance with the Centers for Disease Control’s social distancing guidelines.” However, Louisville’s mayor responded with a blanket ban on all religious services at Easter. On Fire sued in federal district court seeking an order to permit the church to perform services on Easter with precautionary modifications. In a win against the mayor’s overbroad edict, Judge Justin Walker granted a temporary restraining order on Holy Saturday, one day before Easter Sunday, allowing On Fire to hold its service with members of the congregation gathered in their cars. Judge Walker’s opinion blasted the arbitrariness of the mayor’s order, which did not prevent non-religious drive-ins and drive-throughs, such as at liquor stores, from operating. Judge Walker demonstrated admirable judicial fortitude by testing in the most demanding way the underlying justification for why the order singled out churches.
As the pandemic progressed, other courts eventually vindicated the right of religious Americans, churches, and religious organizations to gather despite administrative edicts intended to curtail these gatherings. Legal challenges required federal, state, and local bureaucrats either to scrap overly broad edicts or to justify the requirement of precautionary behavior with stronger evidence of danger to others. The Supreme Court exemplified this shift. In its per curiam decision in Calvary Chapel v. Sisolak from July 2020, the Court denied an emergency appeal for injunctive relief for a Nevada church to operate with the same indoor occupancy caps as Nevada’s casinos did under pandemic regulations. But by November 2020, after Justice Amy Coney Barrett succeeded the late Justice Ruth Bader Ginsburg, the Court began shifting toward greater judicial scrutiny to pandemic regulations affecting churches. First, in Roman Catholic Diocese of Brooklyn v. Cuomo, the Court enjoined a New York regulation that would have restricted attendance to ten or twenty-five attendees of religious services. But it was not until April 2021, some 13 months after the church closures began, that the Court held in Tandon v. Newsom that infringement of free exercise of religion by government regulations requires strict scrutiny “whenever they treat any comparable secular activity more favorably than religious exercise.”
Arbitrary or overly broad administrative edicts deprived Americans of their free exercise of religion during the pandemic. It should not have happened, and certainly not for as long as it did.
March 26, 2025