California’s Ban on Exercising the Free Exercise Clause

By RivaLee Ferland

Amidst these challenging and unprecedented times, many individuals have turned toward their faith for guidance. A major component to practicing a religion is attending in-person church services—many of which are held indoors. In an attempt to control the spread of COVID-19, states have imposed restrictions on church services due to the pressing need for proper caution and social distancing measures.

In June, for example, New York implemented guidelines for religious services. The restrictions capped attendance for indoor church services to 33% of the building’s occupancy and allowed up to 50 individuals for outdoor church services in Phase 4 regions. Additionally, individuals engaged in singing must stay twelve feet apart, and face coverings are required for those who come within six feet of each other. Taking the restrictions a step farther, California Governor Gavin Newsom issued a stay at home order in December that prohibited indoor church services across almost the entire state. The specific restrictions varied based on what “tier” the relevant county fell within.


Thus, the extent of the restrictions imposed upon religious gatherings is dependent upon each individual state. These recent measures have caused an uproar from religious institutions and worshippers who argue that certain restrictions violate the First Amendment—specifically the Free Exercise Clause. As the Free Exercise Clause, which applies to state legislatures, reads, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”  

The Ninth Circuit’s Ruling on California’s COVID-19 Church Service Restrictions

On January 25th, the Ninth Circuit issued an opinion for Harvest Rock Church, Inc., v. Newsom. In its ruling, the court granted Harvest Rock Church an injunction striking down California’s 100-person attendance limit on indoor worship centers for Tier 2 counties and the 200-person limit for Tier 3 counties. Harvest Rock Church brought the claim against Governor Newsom, arguing that the restrictions unconstitutionally discriminate against religious practices. In the opinion, the court referred to the ban against indoor worship as “patently unconstitutional” and in violation of the First Amendment’s Free Exercise Clause.

The court noted that religious institutions are treated more strictly than non-religious gathering spaces—for instance, Californians are still able to gather indoors in grocery stores, malls, libraries, and colleges. Further, although the state has a strong interest in controlling the spread of COVID-19, the state could have implemented far less restrictive measures. The court suggested various alternative measures that are constitutional—such as face masks, social distancing, proper sanitation protocols, COVID-19 testing requirements, and so on. Given these practical alternatives, the court concluded that the public interest in constitutional practices outweighed the states interest in controlling the spread of COVID-19.

Notably, the Ninth Circuit did not prohibit all of California’s restrictions imposed upon indoor church services. California could still enforce its total ban against indoor worship for Tier 1 counties. Further, indoor attendance limitations in Tiers 2, 3, and 4 could be based on a percentage of the building’s fire code capacity. Finally, the court upheld the State’s restrictions on both chanting and singing during indoor services—practices that are proven to increase the transmission of COVID-19.

Supreme Court’sRuling on California’s COVID-19 Church Service Restrictions

Just eleven days later, on February 5th, the Supreme Court issued a decision that entirely lifted California’s ban on indoor church services. The court reasoned that the restrictions imposed were unconstitutional and in violation of the Free Exercise Clause. The decision was based in part on the belief that California has subjected churches to unfair treatment, in comparison to other businesses, during COVID-19. Three Justices favored lifting all restrictions, while Justice Barrett remained in favor of a ban on singing. In the dissenting opinion, the Justices voiced concerns about making decisions regarding the pandemic given their lack of scientific and public health expertise. In sum, the Supreme Court went farther than the Ninth Circuit and deemed that all of California’s current restrictions are unconstitutional.

Looking Forward

Both state and public interests are at stake in this issue. Naturally, the state has an interest in controlling the spread of COVID-19 and keeping its citizens as safe as possible. The public has an interest in free exercise of their religion. However, for some members of the public, the interest in slowing the spread of COVID-19 may outweigh the interest in free exercise of religion. No matter the current interests at stake, both the Ninth Circuit and the Supreme Court have made it clear that the public interest in constitutional practices prevails over all other interests. 

California’s total ban on indoor church services was declared “the most extreme restriction on worship in the country.” As the Ninth Circuit mentioned in its ruling, many lesser restrictions exist that states can implement to lessen the safety concerns associated with holding indoor church services during a pandemic. Each state must determine the adequate level of protective measures needed to minimize the risks of COVID-19 while not entirely restricting their citizens’ right to worship indoors. Thus, states should implement various measures—such as social distancing and sanitation protocols—while remaining cautious not to overstep and infringe upon the constitutional protection of free exercise of religion. 

"North Church Steeple" by jcbwalsh is licensed under CC BY-NC 2.0