(05-22-2020, 02:33 PM)M T Wrote: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
It is hard for me to see, notwithstanding my belief that public health SHOULD outweigh this, that the courts would rule that there is a missing clause that allows prohibiting the free exercise of religion or the right to assemble in some cases.
It's not clear that "shelter in place" laws are unconstitutional infringements on religion. The Constitution allows limitations on personal freedom for public health reasons. The courts have upheld various laws requiring quarantines, vaccinations, and the like. See Jacobson v. Massachusetts (1905) and similar cases.
Generally speaking, religious groups are subject to "neutral laws of general applicability." If the law is not being applied to discriminate against religion, it generally will be upheld. See Employment Division v. Smith (1990) and similar cases.
It's my understanding that the religion-based challenges to "shelter in place" orders generally have been unsuccessful. That is, most courts have upheld temporary, emergency SIP orders that apply broadly to everyone.
As the states start to open up other activities, they will need to treat religious services comparably to similar non-religious activities. Otherwise there could be constitutional problems.
In practice, I think this problem will go away. I think most governors probably will want to find some way to authorize re-opening of churches.