This article discusses a legal challenge filed against the Houston area stay-at-home order barring large, in-person gatherings for church services. Public health emergency response powers historically have permitted such restrictions.
While to date Texas has not implemented a statewide stay-at-home order, many counties in the state have done so via orders issued by local judges. The stay-at-home order issued for the Houston area, Texas’ largest county, permits churches to hold religious and worship services by video or teleconference calls, but not in person. The Governor’s Executive Order defining essential services, however, does explicitly permit churches to hold live worship ceremonies, despite such gatherings contradicting best public health practices to reduce exposure to and spread of the Coronavirus.
Several pastors are part of a lawsuit (In re Hotze) challenging the Houston-area order as violating the U.S. and Texas Constitutional protection of religious freedom, along with gun rights protected under the Second Amendment. The case does raise interesting legal issues concerning how to resolve conflicts between local and state public health measures taken to stem an epidemic when the local measures are both more in line with scientific evidence and infringe more on Constitutional rights. That said, a long line of precedent supports state action to protect the public’s health even if such actions infringe on First Amendment rights.
As stated by Justice Scalia in Employment Division v. Smith (1990), “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” Furthermore, when these actions are taken in response to a declared public health emergency such as an active, deadly infectious disease outbreak, courts are likely to give even greater deference to the type of actions taken by Houston-area authorities.
