Ask the Expert: Law Professor Discusses Religion and Government Authority
Frank Ravitch, professor in the College of Law and Walter Stowers Chair of Law and Religion, answered questions about COVID-19’s impact on the relationship between state and religion.
Are there legal ramifications for holding services while there are shelter-in-place orders?
It depends on two factors. First, does the state include religious services as an essential activity? Second, does the state treat religious services the same as other gatherings?
So long as the state treats religious services the same as other gatherings and does not label religious services as an essential activity, a state would be well within its rights to prohibit or shut a religious service down, fine or arrest any leaders who violated the law by holding such a gathering, especially after being warned, and quarantine all people who attended. A gathering of any size puts people in the entire city/town, county, state and nation at risk, including people outside of the faith that held the service.
There are two legal standards that can apply in these situations depending on which state you are in. The first, which applies in the majority of states, including Michigan, is that government can only substantially burden a religion if the government has a compelling interest (an extremely important interest), and the means the government uses to meet that interest are narrowly tailored to serve the interest.
Usually, the government loses under this approach, but COVID-19 is the best example of a situation where government clearly has a compelling interest in preventing gatherings and, of course, preventing all gatherings is the only way to serve that interest because any gathering could lead to spreading COVID-19.
Religious entities might argue that a less restrictive alternative is to hold services with social distancing by keeping congregants at least six feet apart. Under normal circumstances, this sort of alternative would likely support a religious entities’ claim, but given the extreme risk involved with COVID-19 and the fact that coughs, sneezes, etc. have been shown to potentially spread farther than 6 feet in enclosed areas, states could reject this alternative as long as the state is able to show that any large gathering poses a risk of spread even if social distancing is attempted.
The second standard allows states to apply “general laws” — laws that are not targeted at religion. Under this standard, the government can take serious action against any entities, including religious ones, that violate the state stay-at-home orders so long as religion is not specifically targeted.
Under either standard, the state would be well within its rights to prohibit or shut down religious services and take action against anyone who violates a stay-at-home order, whether for religious reasons or otherwise.
How will this pandemic and the resulting social distancing and gathering ban change how government and religion interact?
It doesn’t have to change how government and religion interact generally. This is an unusual situation where government can, and should, be able to limit or prohibit activities by anyone or any group, including religious individuals and groups, that could endanger society at large. So long as government doesn’t specifically target religious groups differently from other groups, it can shut down a religious gathering.
What administrative powers does the federal government hold over religion vs. the states?
In this situation, the president and the federal government have largely abdicated the duty to protect the nation as whole, and left it to individual states.
As an important aside — from a constitutional law perspective — a national crisis that does not depend on state borders is exactly the sort of situation where the federal government has the power to, and is best equipped, to act.
Every government entity in the U.S. is bound by the First Amendment to the United States Constitution, including federal, state and local governments. When it comes to religious freedom; however, the U.S. Constitution has been interpreted since 1990 to allow government to hold religious entities to the same rules it holds others to, unless those rules discriminate in some way other than through disparate impact.
The federal government and a number of states also have Religious Freedom Restoration Acts, or RFRAs, and some states such as Michigan use an approach similar to RFRA under state constitutions, which apply a greater level of religious freedom.
These laws apply the compelling interest test mentioned above, but for the reasons set forth even under a compelling interest approach, religious entities violating rules against large social gatherings could be treated like any other entity that violates social distancing rules.
If Trump is reelected, do you foresee legislative changes between the church and state?
I am not sure. There is already a RFRA at the federal level, so the bigger question would be whether RFRA will continue to be enforced by a second term Trump administration in ways that are problematic.
Many scholars and lawyers such as myself who support RFRAs, understand that they generally benefit religious minorities who are not considered when a general law is passed and, therefore, may need an exemption when a law substantially burdens their religion.
The Trump administration has embraced interpretations of RFRA that could allow it to be used in ways that support discrimination in the private sector. This may become more brazen if there is a second term.
The federal RFRA was not understood when it was passed to protect private corporate entities that discriminate based on sexual orientation, etc. There need not be any conflict between religious freedom and LGBTQ+ rights, and there are ways to navigate that conflict when it arises so as to best protect both religious freedom and LGBTQ+ rights, but the Trump administration has not sought to find common ground, and has often created unnecessary conflict between these rights.
RFRA is essential for religious people to be able to live their religious lives without government laws that are designed for unrelated reasons, stripping them of the ability to engage in core religious practices — such as the ability of some Native American groups to use peyote in ritual ceremonies.
– Kim Ward and Frank Ravitch via MSU Today