Why It’s Unconstitutional To Keep Grocery Stores Open While Closing Churches

In response to the Wuhan coronavirus, state governors and local leaders have issued wide-ranging executive orders requiring closure of “non-essential” businesses. This affects churches, including imposing criminal penalties for noncompliance in some instances. Some churches have pushed back by simply holding mass services anyway, and several pastors — most prominently in Florida and Louisiana — have been criminally charged.

Many people are wondering, how is this America? Is this constitutionally sound when we have First Amendment protection?

Most states appear to be implementing stay-at-home orders through legislatively determined emergency powers granted to the governor. However, some states are attempting to impose orders beyond state constitutional authority.

Government can determine essential versus non-essential workers within its own employees in the context of a shutdown, which we saw as recently as last year. But there is no constitutional authority on the federal or state level that allows government to subjectively determine who and what is essential for private workers, including during a national health emergency. States are issuing orders without providing complete criteria for how they are making these determinations. There is arguably no metric that could possibly satisfy constitutional scrutiny.