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As the United States nears the grim milestone of 150,000 American coronavirus deaths and cases surge in many parts of the country, a number of states are pausing or reversing their reopening plans. Many states are also weighing whether to put back in place the numerical limits on indoor gatherings that existed before reopening, which included strict bans on in-person religious services of ten or more people. Such restrictions have been the focus of legal battles nationwide over whether bans on in-person gatherings violate the Free Exercise Clause. The disputes became even more complicated when states began to reopen and exempt a wider range of conduct. 

Until the end of May, federal courts that struck down bans on gatherings as applied to religious institutions, including the Fifth and Sixth Circuits, did so on the bases that there was no public health exception to the Free Exercise Clause and that the law failed to pass muster under strict scrutiny. This position has been shared by the U.S. Department of Justice (DOJ) ever since states first began placing limits on-in person gatherings. Meanwhile, federal courts that upheld such bans, including the Seventh and Ninth Circuits, did so by concluding that the laws satisfied the test set out in Employment Division v. Smith (1990). Some lower courts did not even consider the appropriate level of scrutiny and instead declined — in reliance on Jacobson v. Massachusetts (1905) — to disturb state action in light of the health dangers posed by the ongoing pandemic. 

Although federal circuits were split on the correct level of scrutiny to apply to bans restricting religious worship, the Supreme Court’s May 29, 2020 denial of a California church’s application for injunctive relief in South Bay United Pentecostal Church v. Newsom provided no clear answer. The Court did not deliver a majority opinion and the Chief Justice’s concurrence seemed to rely heavily on Jacobson due to the case’s emergency posture. The Fifth and Seventh Circuits have since addressed Free Exercise challenges to in-person religious service bans but considered them moot because the bans at issue had already expired. This convenient and appropriate disposal of moot claims will not be an option for courts faced with Free Exercise claims against gathering bans that states put back in place after deciding to halt the reopening process.  

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But there is good news for states: contrary to the position of DOJ and the Fifth and Sixth Circuits, bans on gatherings of ten or more people are neutral and generally applicable — even in light of existing exemptions — and are constitutionally valid under Smith. Part I discusses the differences between the tiers of scrutiny used in analyzing a law’s constitutionality and some of the Free Exercise contexts in which each tier has been applied. Part II argues that gathering bans are neutral and generally applicable regulations that should be analyzed and upheld under the Smith test. 

The Tiers of Constitutional Scrutiny as Applied in Free Exercise Cases

Laws subject to constitutional challenges are often analyzed under one of three tiers of scrutiny: (1) rational basis review, (2) intermediate scrutiny, and (3) strict scrutiny. These tests reflect a balance between the weight of the constitutional right allegedly violated and the weight of the government’s interest in taking the challenged action. The appropriate level of scrutiny usually depends on the right and the burden at stake. Rational basis review generally requires a challenged law to bear a rational link to a legitimate public interest, intermediate scrutiny generally looks for a substantial link to an important interest, and strict scrutiny generally demands a law be narrowly tailored to a compelling public interest. Each test has been applied in Free Exercise cases.

Rational Basis Review in Reynolds and the Controlling Smith Test

Rational basis review has been applied in Free Exercise cases regarding Congressional restrictions on individuals and groups that preach and practice polygamy. In both Reynolds v. United States (1879) and Davis v. Beason (1890), the Supreme Court applied a very narrow form of rational basis review heavily favoring the government. The framework used only asks whether the government has power to enact the legislation at issue. Central to the narrow nature of this framework was the Court’s understanding in both cases that Free Exercise protects religious beliefs but not religious acts. This framework remained dominant until Cantwell v. Connecticut (1940). Rational basis review has made a comeback since Employment Division v. Smith (1990), with the Smith test approving of neutral and generally applicable laws, no matter their Free Exercise burden. According to the Court in Smith, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’”

Proselytism and the Application of Intermediate Scrutiny

In Cantwell, the Court shifted in 1940 from the rational basis framework in Reynolds to a form of heightened scrutiny — a three-part variant of intermediate scrutiny. Intermediate scrutiny was applied in the twenty-three subsequent cases where the Supreme Court confronted whether proselytism is a right protected by the Free Exercise Clause and whether it can be regulated by the government. Application of intermediate scrutiny in these cases was considered to be appropriate because the Court viewed the laws at issue as “time, manner, and place” regulations, to which it has applied intermediate scrutiny in the broader First Amendment context. The Free Exercise intermediate scrutiny test has three parts: (1) the government must be supporting an important and significant interest, (2) there must be a relationship between the stated interest and the chosen means to achieve it, and (3) there must be no religious discrimination on the face of the law and as it is applied. Recently, in Reed v. Town of Gilbert (2015), the Court unanimously added another condition to the Free Exercise intermediate scrutiny test: the regulation must be content neutral such that religious and non-religious speech are not treated differently.

Sherbert Strict Scrutiny and Free Exercise as a Statutory Right

Going a step further than the standard of heightened scrutiny originating in Cantwell, the Supreme Court in Sherbert v. Verner (1963) introduced a strict scrutiny regime for application in Free Exercise cases. This approach was applied by the Court in ten subsequent Free Exercise cases, with the test being stretched to its limit when the Court permitted a complete exemption for Amish parents challenging state-mandated school attendance in Wisconsin v. Yoder (1972). Under the strict scrutiny standard in Sherbert and its progeny, a law that imposes a substantial burden on the exercise of a sincere good-faith belief only passes muster if it (1) serves a compelling state interest and (2) is narrowly tailored to achieve that interest with the least possible intrusion on Free Exercise rights. Laws that do not pass Sherbert strict scrutiny must either require an exemption for Free Exercise claimants or be completely struck down. 

The Court in Smith scrapped Sherbert strict scrutiny for the less rigorous “neutral and generally applicable” test, prompting Congress to pass the Religious Freedom Restoration Act (RFRA) in 1993 to restore the compelling state interest test from Sherbert. It took less than five years for the Court to reassert its powers as a co-equal branch and invalidate a significant part of RFRA. In City of Boerne v. Flores (1997), RFRA was declared unconstitutional as applied to the states. All Free Exercise cases regarding state and local laws were, thus, compelled to apply the Smith test until states began to pass their own RFRA-equivalents demanding courts apply strict scrutiny in such cases. Congress responded to Boerne in its own way: it strengthened religious liberty claims against both state and local governments by passing the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. Today, the debate on the appropriate level of scrutiny in a particular Free Exercise case comes down to whether to apply the Smith test or strict scrutiny. 

Bans on Religious Services Should Be Analyzed Under, and Satisfy, the Smith Test

The appropriate level of scrutiny is at the heart of the legal issue implicated by gathering bans that affect religious services. Virginia’s ban that was in place until May 8, 2020 — when Virginia began to allow individuals to attend in-person services — is a salient example of how states can prohibit in-person religious services of ten or more people without violating Free Exercise. The Virginia ban, contrary to DOJ’s previous assertions, and other bans like it should be subjected to the Smith test and upheld as constitutional because they are neutral and generally applicable. 

Virginia’s ban — ordered on March 23rd — originally read: “all public and private in person gatherings of 10 or more individuals are prohibited.” It allowed businesses to remain open that complied with social distancing and sanitation practices. Similar generally applicable language and exemptions for businesses existed in a March 30th order that extended Virginia’s restrictions. 

Before it was repealed on May 8th, this ban was neutral and generally applicable to the extent that it banned “all public and private in-person gatherings” of ten or more people. The text of Governor Northam’s March 23rd order does not include any mention of religion, and the text of the Governor’s March 30th order only mentions the word “religious” in the context that “religious . . . events” as well as parties, celebrations, and “social events” are a non-exhaustive list of examples of types of “gatherings.” Thus, nothing in the text of Virginia’s ban itself warrants a finding that the law is not neutral and generally applicable. This is also the case with California’s Reopening Plan, which includes churches in a list with a number of non-religious locations deemed “higher risk workplaces” like bars, movie theaters, and hair salons. Likewise, Illinois’ temporary numerical restrictions on gatherings applied not only to worship services but also to the most comparable types of secular gatherings, such as concerts and lectures, where groups gather together for extended periods and loud speech and/or singing are prominently featured.

Although these bans are neutral and generally applicable based on their text, is it possible to explain the states’ various exemptions in a way that the bans are still considered generally applicable to religious and non-religious conduct? DOJ pointed to Virginia’s exemptions that allowed all non-retail businesses to stay open that followed certain social distancing guidelines and sanitation practices for its answer that Virginia’s ban cannot be considered generally applicable. But these exemptions also applied to religious institutions: they were allowed to continue to conduct “business” in the sense that their employees could continue coming to work at houses of worship. This generally applicable treatment of religious and secular institutions by the exemption of non-retail businesses is consistent with the ban’s neutral and generally applicable treatment of religious and secular events. If religious services — as events subject to “gatherings” bans — were not treated this way and were instead treated differently than non-religious events, only then would DOJ’s claim that there is “inconsistent treatment” of religious and non-religious conduct be true. Therefore, Virginia’s ban on gatherings of ten or more people was neutral and generally applicable, as are limited capacity restrictions like those currently in place in California.

This reasoning finds support in Chief Justice Roberts’ concurrence in South Bay United Pentecostal Church, which effectively distinguished religious services where large groups gather in close proximity for extended periods of time from shopping and other secular activities in which people neither congregate in large groups nor remain in close proximity for extended periods. The Chief Justice, however, did not cite a single Free Exercise case in pointing out this distinction. Instead, he emphasized the Free Exercise claimant’s significantly higher burden when seeking emergency relief in an interlocutory posture and relied on Jacobson to deny the church’s request. But this reasoning would not be persuasive where the Free Exercise claimant is not requesting emergency relief in an interlocutory posture from the Supreme Court. And not only is Jacobson — a case upholding a mandatory smallpox vaccine program — silent on whether a state may resort to prohibiting in-person religious services, there is no reason to wade around in applying reasoning from a 115-year-old case when the ban satisfies the appropriate Free Exercise test set out in Smith
Such a test inherently favors the government and does no favors for Free Exercise claimants. The Smith test, as explained in Part I, applies to and upholds neutral and generally applicable laws that burden Free Exercise. Applying this standard of scrutiny requires upholding neutral and generally applicable bans like the one lifted in Virginia and the one currently in place in California. But states opting to reinstitute such bans must steer clear of haphazard exemptions of non-religious conduct and locations that may make their gathering bans no longer generally applicable; where similar non-religious gatherings are treated differently than religious gatherings, the ban is not generally applicable and triggers strict scrutiny.


Although public pressure to reopen the economy may have pushed many states to ease restrictions, some states may decide to issue orders similar to the ones in place before reopening. These states, as well as states that have maintained their restrictions, should not bow to the pressure of President Trump and DOJ for fear that bans affecting religious services violate the Free Exercise Clause. Courts around the country faced with challenges to such bans should follow the trend of the Supreme Court’s Free Exercise cases in the last three decades and apply the Smith test. This would almost certainly necessitate the court decline to strike down the ban, allowing states to continue to exercise their authority in choosing to follow the advice of public health experts on reopening. However, states with RFRA-equivalents may have to defend their bans against challenges in state court by proving the law is narrowly tailored to achieve a compelling state interest with the least possible intrusion on Free Exercise — a nearly impossible task given the extent of the bans’ Free Exercise burden and the vast breadth of the various exemptions that apply to non-religious conduct. ♦

Connor Hees is a rising third-year student at Emory University School of Law. He spent the summer interning with the Southern Environmental Law Center and is the current Executive Notes and Comments Editor of the Emory Law Journal.

Recommended Citation

Hees, Connor. “Prohibitions on In-Person Religious Services: Valid Under the Smith Test, No Matter Their Free Exercise Burden.” Canopy Forum, July 28, 2020.