Thread: The vast majority of churches stopped services at the onset of the lockdown and were right to do so. Now, however, as re-opening is increasingly warranted, it's clear that there are some common constitutional problems with existing lockdown orders. Here are a few. /1

Duration: Indefinite or excessively-extended lockdown orders are constitutionally problematic. Reasonable time limits on decision-makers are imperative. An excessively-extended or indefinite lockdown can be struck down on those grounds alone. /2

Discrimination: One of the obvious constitutional infirmities in any lockdown order is failing to treat similar activities similarly. For example, banning drive-up services while not banning, say, parking in store parking lots is a constitutional red flag. /3

Unlawful discrimination can take many forms -- including, for example, definitions of "essential" that are so broad that they include commercial businesses that are not obviously connected to life-sustaining activities but exclude houses of worship. /4

Another form of targeting can be inconsistent application of social distancing rules -- with a more lax standard for broadly-defined "essential" services and a stricter standard for churches. /5

In RFRA states, governors can't forget they must use the "least restrictive means" if they enact regulations that burden free exercise -- and they cannot continue to presume that flat bans on gatherings (regardless of distancing) will meet that test. /6

Moreover, even under the most permissive Smith test, lockdowns that provide numerous exceptions for similar activities (yet still restrict churches) will not be deemed "neutral" or "generally applicable." /7

Bottom line -- yes we know of the risks of (especially) large indoor gatherings, but the more a city or state opens up while it tries to keep churches closed, the more it will risk running afoul of the First Amendment. /end