Nine States Pass New Bills to Protect Religious Freedom During Emergencies

The COVID-19 pandemic exposed significant flaws in state-level emergency management policies around the country. Ambiguous language and expansive grants of authority to Governors and executive agencies made tremendous executive overreach permissible. Some Governors and unelected bureaucrats took full advantage through the unilateral issuance of stay-at-home orders, mandatory masking orders, closure of “non-essential businesses,” and more. ALEC members responded to these flaws early in the pandemic by creating the Emergency Power Limitation Act model policy and the Statement of Principles to Inform Emergency Management Acts. 

Of particular concern to many Americans was the forced closure of churches and other places of worship, regardless of what health and safety measures were implemented. In November of 2020, the Supreme Court issued a 5-4 ruling against the state of New York that struck down Governor Cuomo’s unreasonably strict limitations on church capacity during the pandemic. The court issued another ruling in February of 2021, this time against California, similarly striking down a state ban on indoor worship services (though the court permitted a 25% capacity limitation). 

Since 2021, nine different states have passed legislation that specifically protects religious services during a declared emergency (including Kentucky, Montana, South Carolina, Arizona, Oklahoma, Tennessee, Florida, New Hampshire, and North Dakota). Tennessee’s law provides the highest level of protection by prohibiting any additional restrictions on religious services during an emergency. The remaining states permit limited regulation so long as an unreasonable burden is not imposed. Additionally, religious services are to be treated as “essential services,” thereby eliminating the possibility that grocery stores and hair salons receive more favorable regulatory treatment in flagrant violation of the First Amendment.

Elected officials have a duty and obligation to protect the health and welfare of their constituents, but this authority does not allow them to deprioritize First Amendment rights in the name of public health. These new laws establish clear and reasonable emergency-power rules that prevent the abridgment of constitutional religious protections while still permitting necessary regulation when needed.