Local Governments Ban Drive-In Religious Services - Are the Bans Unconstitutional?

What’s the story?

• Amid the coronavirus (COVID-19) pandemic and the related social distancing orders enacted at all levels of government, churches are struggling to hold religious services during Holy Week, as the faithful are discouraged from physically gathering to celebrate Easter and other services.
• While many churches & synagogues have offered live streams of services via internet platforms, in some cases less-tech savvy parishioners may struggle to join. 
• To allow them to participate, some churches have held drive-in services, where the faithful flock to the parking lot and remain in their cars parked more than six feet apart. They then either tune in to a low-frequency radio station to hear their preacher with the windows up, or they roll down their windows partially and listen to the preacher speak into a bullhorn or megaphone. The preacher & any videographer remain more than six feet away from the vehicles.

Drive-Ins, Denied?

• Kentucky: Louisville Mayor Greg Fischer (D) argued that drive-in church services still aren’t considered safe social distancing under his city’s standards, and instituted a ban. Additionally, Governor Andy Beshear (D) said he would direct state police to record the license plate numbers of vehicles attending in-person religious services and have public health officials track them down and direct them to quarantine. (Their views are in contrast with those of Kentucky Attorney General Daniel Cameron (R), who said drive-in services can be in compliance with CDC social distancing regulations and that recording attendees’ license plates is arbitrary because it isn’t also targeting people at other establishments.)
• Mississippi: Errick Simmons, mayor of Greenville and chairman of the Washington County Democratic Party, announced that the city of Greenville will fine people $500 if they attended drive-in religious services. They made good on the policy during Holy Week, issuing a $500 fine to every person in a car that was attending a drive-in religious service.

Are Bans on Drive-In Religious Services Constitutional?

• As a reminder, the first clause of the First Amendment to the U.S. Constitution reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. 
• Taken together with similar provisions in state constitutions, that means in practice, the government can’t establish a religion or prohibit people from practicing their religion. 
• In the case of Louisville’s ban, a federal judge has already weighed in on the constitutionality of the ban, and the answer is a definitive “no.” Federal District Court Judge Justin Walker ruled in favor of On Fire Christian Center in its case against Louisville Mayor Greg Fischer, and his decision read in part:

“Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs ― including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly ― including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny. That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”

Louisville will be (highly) unlikely to make the second of those two showing. To be sure, Louisville is pursuing a compelling interest of the highest order through its efforts to contain the current pandemic. But its actions violate the Free Exercise Clause “beyond all question” because they are not even close to being “narrowly tailored to advance that interest.””

— Eric Revell

(Photo Credit: iStock.com / WoodyUpstate)