On March 27, the Hillsborough County Emergency Policy Group unanimously issued an order restricting the gatherings of non-essential businesses and services. The Rev. Rodney Howard-Browne responded that he would only cancel church services for the Rapture and that pastors who canceled services were “pansies.” After holding church services on March 29, county authorities arrested Howard-Browne for unlawful assembly and violating the public health emergency order.
While the Religious Freedom Restoration Act (RFRA) of 1993 applies only to the federal government, twenty-one states implemented similar statutes. Florida’s RFRA mirrors federal RFRA language barring the government from “substantially burden[ing]” the free exercise of religion unless it furthers “a compelling governmental interest” and is “the least restrictive means” of furthering that interest. This test is so burdensome that the Supreme Court has described it as “the most demanding test known to constitutional law.” So the question becomes, do state mandated church closures pass the burdensome RFRA test?
The Ninth Circuit has held that a “substantial burden” is imposed when individuals are “coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions . . . .” While religious leaders may debate what Christians should do, in the words of the Supreme Court the practice of interpreting religious doctrines is something “courts have no business addressing.” Howard-Browne’s “sincerely held religious belief” that he is required to hold in-person church services is enough to show that the County restrictions pose a substantial burden to his religious exercise.
Compelling Governmental Interest
The Florida RFRA explicitly states an intent to apply the compelling interest test from Wisconsin v. Yoder. While Yoder upheld Amish religious freedoms over the government’s interest in educating the Amish up to age sixteen instead of age fourteen, there are significant differences when compared to a church closure case. However, the compelling governmental interest in educating fifteen- and sixteen-year-old Amish children is certainly less than that of containing a global pandemic. Yoder also relied heavily on how the public school was “in sharp conflict with the fundamental mode of life mandated by the Amish religion,” an issue not present in the Howard-Browne incident.
Finally, the Court in Yoder found only a tenuous connection between the compelling state interest of an educated populace and two additional years of school for Amish children. Conversely, there is a strong connection between large church gatherings and the spread of coronavirus. Public health experts believe religious services are “super-spreading events” highly conducive to the transmittal of coronavirus. A choir practice in Washington state resulted in two deaths and forty-five illnesses. A Russian-language church in California is responsible for infecting at least seventy people. And over half of the initial coronavirus cases in South Korea were linked to a single church.
Least Restrictive Means
Regardless of the outcome from applying the “compelling governmental interest” prong, the “least restrictive means” prong will likely prove fatal for the government. Proving that there was no alternative, less restrictive means to advance the government’s compelling interest is an “exceptionally demanding,” “rigorous hurdle” to satisfy. A policy that would have allowed a group of forty people to attend church services in a large room with strictly enforced social distancing and sanitary guidelines would have largely satisfied the governmental interest of public health while not banning a religious practice. Indeed, Howard-Browne claims the church implemented numerous precautionary measures, including the installation of a $100,000 purification system. However, a video of the March 29 service shows that, while some of the chairs were spaced apart, many family groups were within six feet of each other.
The numerous exceptions in the Hillsborough Order also weaken the government’s claim it was the least restrictive means available. In Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, the court’s decision to rule in favor of Muslim officers who refused to shave their beards likely hinged on the existence of a non-religious exception to the rule. Namely, there was a medical exception to the no-beards policy. This single exception “undoubtedly undermine[d]”the government’s case. The court noted that “the medical exemption raises concern because it indicates that the Department has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not.” This principle is highly relevant for Howard-Browne because the Hillsborough Order contained numerous exceptions. The following were exempted from the Order due to their “essential” nature: medical marijuana dispensaries, newspaper companies, gardening stores, firearm and ammunition sales, exterminators, pool maintenance, golf course maintenance, vacation rental services, and dry cleaners.
***The contested issue under an RFRA claim involving government mandated church closings due to coronavirus would likely be whether the least restrictive means were used. Given the “exceptionally demanding” nature of this standard, the more narrowly tailored alternatives available, and the numerous exceptions provided, this post concludes that the Hillsborough County Order would not survive RFRA scrutiny.
Michael Conklin is the Powell Endowed Professor of Business Law at Angelo State University.