Don’t Make a Federal Case Out of Drive-In Church Services

Cities shouldn’t prohibit drive-in church services and the DOJ shouldn’t get involved in unnecessary litigation during a time of crisis.
by Kim Wehle
April 19, 2020
Featured Image
Tina Howard raises her hands to the sky during a drive-in Easter service amid the Coronavirus pandemic at the International Church of Las Vegas in Las Vegas, Nevada on Sunday, April 12, 2020. - The United States passed the grim milestone of 20,000 coronavirus deaths on April 11, 2020 as huge swaths of the globe celebrated the Easter holiday weekend under lockdown at home. (Photo by Bridget BENNETT / AFP) (Photo by BRIDGET BENNETT/AFP via Getty Images)

For weeks now, people have been wondering whether states have the power to restrict civil liberties through quarantine orders aimed at slowing the spread of the coronavirus, and whether the Constitution has anything to say about this situation.

The short answer is: Yes.

As a matter of the states’ police power under the 10th Amendment to the Constitution, they can constrain individual liberties during the COVID-19 crisis. But there’s a caveat. Constitutional rights involve a balancing act, and at some point the facts will tip against government claims of public safety and in favor of individual liberty. When that happens, there’s a chance that bad facts will make bad law, which could in turn hamper public safety efforts in the future.

A case in Mississippi reveals how precarious this line can be, and how the Trump administration is trying to walk it.

Last week, the Department of Justice formally weighed in on a complaint challenging the city of Greenville, Mississippi’s enforcement of a coronavirus-related executive order that has since been rescinded.

The facts of the case are these: The city ticketed parishioners who attended the Temple Baptist Church’s drive-in service on April 8. According to the complaint, all of the congregants stayed within their cars in the church parking lot—with their windows rolled up—while a sermon was broadcast on FM radio.

Greenville’s ordinance was a gloss on Mississippi governor Tate Reeves’s state-at-home directive, which requires that religious services comply with Mississippi State Department of Health Guidelines. Those guidelines state that, because the health department “has identified COVID-19 cases specifically linked to church gatherings, it is vitally important that all Mississippians not attend in-person church services at any church or other type of facility,” and that “limiting gatherings to fewer than 10 people is critical.”

The complaint alleges that Greenville’s mayor and city council issued a separate order forbidding drive-in services even without personal contact. The church claims that the city’s order and $500 citations violated the First Amendment.

This is not the first action of its kind. A group of churches sued California governor Gavin Newsom over his stay-at-home order on the ground that it violates religious freedom and the right to assemble under the First Amendment. And a federal court recently sided with challengers to the Louisville, Kentucky mayor’s ban on drive-in church services on Easter Sunday. But the difference with the Mississippi case is that the U.S. Department of Justice took pains to file a 14-page brief expressing its agreement with the allegations in the church’s complaint against the city.


So what happens next?

Because the Greenville order and citations have been withdrawn, the church’s complaint is probably moot. But if such a case were to proceed, the Trump administration’s decision to jump into the fray could, down the road, be used to confine the government’s ability to take measures protecting public health. Was the maneuver worth it?

As DOJ explains in its filing, the seminal case on the subject is the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, which held that it is within the state’s police power to criminally enforce a compulsory vaccination law to prevent the spread of smallpox. DOJ also cites Prince v. Massachusetts, a case involving a clash between child labor laws and the practices of Jehovah’s Witnesses, in which the Court stated in 1944 that “the right to practice religion freely does not include the liberty to expose the community . . . to communicable disease.”

DOJ nonetheless goes on to argue that the allegations in the Temple Baptist Church’s complaint indicate that Greenville “single[d] out particular religious conduct for adverse treatment” or “treat[ed] the same conduct as lawful when undertaken for secular reasons but unlawful when undertaken for religious reasons.” If this singling out was intentionally done to punish people for exercising their religion, DOJ submits, then the enforcement of the now-defunct order against a group of drive-in churchgoers is “beyond all question, a plain, palpable” violation of the Constitution.

Although it’s true that COVID-19 does not supplant the First Amendment, the federal Department of Justice’s intervention in this case is puzzling.

To be sure, it seems clumsy, unfair, and above all else unwise to ban people from sitting inside their vehicles, in a parking lot, with their windows closed amidst the COVID-19 pandemic. The plaintiffs note that, “according to the City, you can buy a hamburger or sit in your car at a drive-in restaurant with your windows rolled down, but you can’t sit in your car at a drive-in church service with your windows rolled up.” If the complaint’s allegations are true, the Temple Baptist Church congregation was not flouting public health suppression measures—if anything, it was making a reasonable accommodation to support such measures by modifying its worship in a prudent way that satisfied public health imperatives.

But it’s also not clear that the city’s order was designed to single out religious believers or that the police discriminatorily targeted churches. Greenville mayor Errick Simmons stated that “no officers raided or staked out a church”; instead, officers were responding to multiple calls complaining about the gathering. “To publicly state this mayor is targeting a church,” he added, “is unacceptable and reprehensible.”

Of course, we do not know the full story here. There has been no fact-finding in the case to test the plaintiffs’ claim that the city’s actions were based on an intent to single out religion rather than a good faith (though perhaps clumsy, unfair, or unwise) attempt to protect the public from the spread of COVID-19.

Yet the Justice Department seemed to take the complaint’s allegations as if they were all-but-proven—and in doing so toyed with a standard for pandemic-related orders implicating religious institutions that could chill future law enforcement from doing their jobs in circumstances that may be wildly different.


As always, bad facts make bad cases which make bad law.

Much like the TSA’s confiscation of water bottles and sunscreen at airport security checkpoints, breaking up drive-in church gatherings is imprudent for many reasons, the biggest of which is that public health in a time of pandemic relies on compliance. The government only convinces people to comply by passing rules that make sense. Once it starts imposing mandates that have no real grounding in safety, people will start disobeying them and then the virus will really spread.

The city of Greenville has since rescinded the ordinance, and the governor announced on April 15 that drive-in church services are allowed “so long as families stay in their cars with windows up and all state and federal social distancing guidelines and standards are adhered to and complied with.” Maybe the city changed course out of a sense of genuine reconsideration of its policy post-lawsuit. Or maybe it was simple expediency. But either way, the complaint no longer presents a live issue. The congregation of Temple Baptist Church can have its drive-in services.

So what good was served by DOJ weighing in on the matter against the city of Greenville?

Sometimes government lawyers are forced to deal with bad facts during an urgent moment. This is not one of those times. Instead of allowing state and local authorities to respond to the dust-up on their own accord, the Trump administration forced the issue of religious freedom by chastising Greenville—while, at the same time, the president has been telling states in desperate need of medical equipment to “try getting it yourselves” and “to call your own shots” on lifting restrictions in spite of the virus.


Note that, unlike the California cases, the Mississippi lawsuit does not challenge the governor’s ban on gatherings of ten or more people. Across the country, similar orders are drawing protests. In Raleigh, North Carolina, for example, a gathering of over a hundred people urged that the state “re-open,” resulting in an arrest. “Everybody gets to make their own choice,” one protester said. “If you’re scared, stay home. I’m not scared and I don’t want to stay home. I’m a free American and we have to start acting like it.” And in Charlotte and Greensboro, anti-abortion protesters were arrested outside abortion clinics for allegedly violating restrictions on travel for non-essential functions, prompting a “faith-based” nonprofit to file its own First Amendment lawsuit.

The claim that individuals can do whatever they want as “free Americans” during a pandemic reflects a fundamental—albeit widespread—misunderstanding of constitutional law.

Rights are not absolute. In Employment Division v. Smith, Justice Antonin Scalia wrote in 1990 for a Supreme Court majority that “a neutral law of general applicability” does not violate the First Amendment. Stay-at-home orders that incorporate churches or affect religious practices are simply not unconstitutional.

Keep in mind that, as the Court observed in Jacobson, “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” What the government cannot do is single out individuals for reasons that have nothing to do with protecting public health—like religious beliefs, race, gender, or national origin. If local law enforcement enforces unreasonable orders in an unfair manner—even as part of an effort to protect public health during a pandemic—then the federal government and the courts are right to step in.

And the street goes both ways. In the absence of blatantly discriminatory or unreasonable orders being unfairly enforced, the federal government might have an even greater interest in preserving room to maneuver so that, in the future, governments will be able to strike the balance between individual rights and public safety.

Which is why DOJ’s decision to deride Greenville’s coronavirus enforcement efforts as amounting to intentional religious discrimination—when the underlying facts have not been established and the ordinance itself is no longer in operation—is concerning.

It’s hard not to wonder whether this was really about Attorney General Barr’s fire-and-brimstone approach to religion and American democracy. Recall that in October of last year, he delivered a scathing speech at the University of Notre Dame law school, in which he accused “militant secularists” of pursuing a “campaign to destroy the traditional moral order.” He also charged that Catholicism and other Judeo-Christian religions were being subjected to “organized destruction” by “‘progressives,’ [who] have marshaled all the force of mass communications, popular culture, the entertainment industry, and academia,” and who are responsible for a range of “social pathology” that includes drug abuse and illegitimacy.

Sigh.

The mission of the Department of Justice is “to enforce the law and defend the interests of the United States according to the law,” and “to ensure fair and impartial administration of justice for all Americans.”

Let’s hope this is what Barr was doing by throwing the weight of DOJ behind one Christian church in the midst of an invisible virus that is killing tens of thousands of people in the United States—regardless of their religious beliefs.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her new book, What You Need to Know About Voting—and Why (HarperCollins) goes on sale today, June 16. Twitter: @kimwehle.