A dizzying array of court decisions has been issued regarding various First Amendment challenges to governmental orders limiting public assemblies, including religious gatherings.
Some of the decisions ostensibly disagree on a most fundamental point — whether or not the pandemic emergency justifies a lessening of constitutional protections.
Consider the following two statements from two separate judicial opinions addressing executive orders issued in the wake of COVID-19:
“In other words, during an emergency, traditional constitutional scrutiny does not apply.” — Judge Jesus R. Bernal in Gish v. Newsom (April 23, 2020).
“There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.” — Judge James C. Dever III in Berean Baptist Church v. Cooper (May 16, 2020).
In Gish v. Newsom, Judge Bernal denied a temporary restraining order challenging executive orders by the governor of California and orders from Riverside and San Bernardino counties limiting public gatherings. He reasoned that governmental officials “have a right to protect California residents from the spread of COVID-19, even if those protections temporarily burden constitutional rights to a greater degree than normally permissible.”
Contrast that with Judge Dever’s recent decision in Berean Baptist Church v. Cooper, examining a challenge to the North Carolina governor’s executive order limiting indoor worship services to fewer than 10 persons in most circumstances.
Judge Dever determined that it appeared the governor’s order treated religious entities more strictly than non-religious entities. He wrote the executive order “place[s] worshipers between Scylla and Charybdis, forcing them to choose between obeying their faith or risking criminal prosecution.”
The two decisions reflect a difference in approach when it comes to emergencies. Some prefer the first approach — relaxing the constitutional standards to give government officials greater flexibility to respond. There is some precedent for this. After all, in the Fourth Amendment search-and-seizure context, there is a recognized exception to the warrant requirement for exigent circumstances. In the First Amendment context, Justice Oliver Wendell Holmes warned back in Schenck v United States (1919) that speech could be restricted more in times of war than peace. “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured,” he wrote.
Others emphasize that great care must be taken for constitutional rights precisely in times of emergency and panic. In the modern era, this has been done through the legal lens of “strict scrutiny.” Under this legal lingo, the government may only support its restrictions if it shows that it has a compelling — or extremely strong — interest that is advanced in very narrowly tailored way.
As Gene Policinski explains: “The COVID-19 outbreak is a real threat to public health, but it should not be a reason for long-term damage to our core freedoms.”
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).