Can Virus Orders Shut Down Church? Yes And No

On March 17, Gov. Gretchen Whitmer issued an executive order, responding to the COVID-19 coronavirus epidemic, which bans events with 50 or more people through April 5, 2020.

The order did not specifically exempt houses of worship, but stated that it “does not abridge” constitutionally protected rights.

Whitmer later issued a clarification, specifying that “a place of religious worship is not subject to penalty” under the executive order. The law authorizes misdemeanor penalties for violations of an emergency order. Several Catholic dioceses in the state had cancelled masses following an earlier March 13 executive order banning assemblies of more than 250.

State Rep. Beau LaFave challenged Whitmer’s order as a potential violation of the constitutional right to assemble.

“The Constitution clearly asserts our right to assemble. The governor cannot unilaterally prohibit Michiganders from gathering – let alone making it a misdemeanor,” LaFave said in a press release. “Furthermore, the First Amendment clearly protects the free exercise of religion. Gov. Whitmer’s unilateral action violates that as well.”

But two experts on public health emergencies say Whitmer’s executive orders were legal.

The specific powers Whitmer is exercising are granted to her by two state laws: a state Emergency Management Act and an Emergency Powers of the Governor Act of 1945.

“In a national emergency, government may take extraordinary measures to ensure health and safety,” said Charles Haynes, founding director of the Religious Freedom Center of the Freedom Forum Institute. “In this crisis, federal and state governments has a compelling interest in limiting the size of gatherings. Moreover, governments can easily demonstrate that there is no less restrictive way to accomplish the public health goal.”

Haynes continued: “Of course, the rules must apply to all, not just some groups. This restriction does not single out religious groups (which would be unconstitutional), but rather applies to all gatherings. Nor does the executive order deny the right of religious groups to gather for worship as long as those gatherings are under 50 people.”

Denise Chrysler, director of The Network for Public Health Law’s regional office, said Whitmer’s executive order “is a neutral law of general applicability, and thus, presumptively lawful.”

“While churches services with more than 50 people are included in the ban, the Executive Order does not target churches,” Chrysler wrote in an email before Whitmer exempted places of worship. “It also does not prohibit worship, which could occur online or in services that do not exceed 50 people at a time. The virulence, scale, and infectiousness of this particular outbreak fully justify the Governor’s use of her emergency powers, including to limit the number of people who can assemble in an indoor shared space.”