The police power of the states to control a pandemic, explained

But what about the First Amendment? Can the government really order churches to close? Doesn’t the First Amendment guarantee free exercise of religion? What about a citizen’s rights of freedom of assembly and freedom of association?

If a state closure order targeted churches—and churches only—the order would almost certainly be unconstitutional. But the state closures orders in response to COVID-19 represent classic examples of a “neutral law of general applicability” that are presumptively lawful under Employment Division v. Smith. If restaurants and bars and movie theaters are closed at the same time, churches won’t enjoy any special protection under the Free Exercise Clause.

Setting aside churches for the moment, the state interest in confronting a recognized, deadly pandemic that is breaking out on American shores is so strong that most bans on public gatherings will pass even the most exacting legal scrutiny. Even laws that directly curtail First Amendment freedoms will be upheld if they can pass a legal test called “strict scrutiny,” which requires the government to demonstrate that its actions advance a compelling governmental interest and are enacted through the least restrictive legal means.

At present, that test would be easy to pass. There is unquestionably a compelling governmental interest in protecting the public from COVID-19, a communicable disease far deadlier than the flu. Because it is so easily transmitted through person-to-person contact, it’s easy to argue that even broad bans on public gatherings are among the least restrictive means of advancing the government’s interest.