RFRA, Coronavirus, and Capitol Hill Baptist Church
A federal court ruled that Washington DC's restrictions on church gatherings violated the Religious Freedom Restoration Act. What does this mean moving forward?
Late Friday, a judge on the United States District Court for the District of Columbia issued a consequential decision at the intersection of religious freedom and public safety regulations related to the coronavirus pandemic. Judge Trevor McFadden—a 2017 Trump appointment—ruled that Washington DC’s restrictions on the size of church gatherings violate 1993’s Religious Freedom Restoration Act. Interestingly, the Supreme Court has ruled that RFRA does not apply at the state and local level, but given that Washington DC is a federal territory, the law does apply here.
First, some context. From the 1960s to 1990, the Supreme Court resolved conflicts involving religious freedom issues using the so-called Sherbert test, which required the government to demonstrate a compelling interest whenever a law or policy burdened someone’s sincerely held religious beliefs. It was a high bar that the government couldn’t always reach.
But in 1990, in the Smith case, the Court reversed course. It was a case involving a Native American man, Al Smith, who argued that he was eligible for unemployment insurance after being fired from his job at a drug treatment center when he tested positive for peyote — Smith argued that since consuming peyote was part of his religious practice, the government would have to prove a compelling interest in denying him his unemployment, which the Court had previously seen as a tough argument to make.
In the decision, though, the Court ruled that as long as a law or policy is neutral and generally applicable (meaning it didn’t target anyone specifically and applied to everyone equally), then states are not required to make exceptions for people’s religious beliefs. Justice Antonin Scalia surprised many conservatives in authoring the decision, suggesting that the Sherbert test could lead to situations where a person would be “a law unto himself.”
In response to the decision, Congress quickly (and almost unanimously) passed the Religious Freedom Restoration Act, essentially restoring the Sherbert standard across government. And though the Court held RFRA unconstitutional as applied to state governments in a 1997 decision, RFRA still applies at the federal level.
Earlier this year, Washington DC enacted a series of restrictions on the size of gatherings in an effort to mitigate the spread of the coronavirus, limiting gatherings to 100 people. This affected places of worship like Capitol Hill Baptist Church (CHBC), and at first, the church observed the regulations without complaint — in fact, the church began to meet outdoors in Virginia, which had more lenient policies on gatherings. However, as the summer wore on, the city began allowing mass gatherings to take place—specifically, protests against police brutality and racial injustice—while maintaining restrictions on church services. CHBC applied for an exemption to the restrictions, wishing to hold services outdoors while observing distancing requirements and requiring masks, but was denied. Only then did CHBC sue.
In ruling for CHBC (specifically, granting an injunction against the policy while the case proceeds through the courts), Judge McFadden dismissed Washington DC’s argument that other religious groups had adapted to the restrictions without issue and that CHBC had successfully been gathering elsewhere throughout the summer. “The District has not, as it contends, banned merely one ‘method of worship,’” McFadden wrote, “but instead has foreclosed the Church’s only method to exercise its belief in meeting together as a congregation, as its faith requires.” RFRA gives the benefit of the doubt to religious entities in these disputes, requiring the government to demonstrate a compelling interest in burdening people’s religious practice. The judge was not convinced that Washington DC had demonstrated that here.
If you have been reading my newsletter and commentary throughout the summer, you will recognize that this is not the first such case involving a religious group seeking an exemption from pandemic-related restrictions and regulations. As Andy Lewis and I have argued, some of these claims are without merit given the facts involved (e.g., Grace Community Church’s fight to meet indoors) and exist mainly to fuel the continued polarization of religious freedom as a cultural wedge issue. These cases make a mockery of true religious freedom claims, and ultimately muddy the waters when actual conflicts emerge.
However, some claims (like those in the present case and an ongoing case in Nevada) are much stronger and deserve much greater attention in the legal system. Judge McFadden’s decision here is encouraging in that it provides a warning to governments explicitly treating religious services differently from other gatherings. If Washington DC had maintained a consistent policy on the size of gatherings for religious and nonreligious groups alike, and had argued that doing so was essential for securing public health and safety in the midst of the pandemic, the outcome here may have looked different.
Importantly, this is not the last word on the dispute between CHBC and Washington DC. Judge McFadden’s decision merely grants the church injunctive relief, meaning they are allowed to meet (outdoors, of course) while the lawsuit continues. It wouldn’t surprise me at all to see this case and the Nevada case eventually reach the Supreme Court together, and for the justices to weigh in on the merits of such arguments.
As an aside, I’m encouraged by CHBC’s handling of this dispute. The church did not immediately cry foul and complain that their constitutional rights were being violated by the mere existence of public health regulations. It was only after, as Joe Carter in The Gospel Coalition notes, protracted and engaged efforts that the church sought legal relief — as a result, CHBC is not seeking special treatment, only equal treatment. Such an argument and strategy is refreshing in the present context of fights over religious freedom.