Sixth Circuit Says Governor's Shut-Down Order Likely Violates Free Exercise

Steven D. Schwinn, UIC John Marshall Law School

The Sixth Circuit ruled earlier this week that Kentucky Governor Beshear's business shut-down order likely violates the Free Exercise Clause as applied to religious services. The ruling prevents the government from enforcing the shut-down order against religious services while the case moves forward. At the same time, however, the ruling tells the Governor how to regulate religious services consistent with free exercise (simply impose social distancing requirements, e.g.).

The court recognized that religiously-neutral, generally-applicable laws are usually upheld (under rational basis review). But it said that the shut-down order wasn't generally applicable, as demonstrated by the many "life-sustaining" "exceptions" to shut-down:

Do the four pages of exceptions in the orders, and the kinds of group activities allowed, remove them from the safe harbor for generally applicable laws? We think so. As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law. "At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny. . . .

The exception for "life-sustaining" businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of the other services.

The court went on to say that the Governor's order would likely fail strict scrutiny, because it wasn't narrowly tailored. "There are plenty of less restrictive ways to address these public-health issues," for example, "insist[ing] that the congregants adhere to social-distancing and other health requirements and leave it at that--just as the Governor has done for comparable secular activities[.]"