Governments must follow certain rules when issuing orders that affect Constitutional rights. By Stacey Cormican
States (and not the federal government) can use their police powers to protect the welfare, health, and safety of their citizens. The scope of these powers varies from state to state and are found in the state's constitution and any state statutes allowing officials from the state or political subdivisions to issue orders declaring a disaster emergency.
The declaration of a public emergency removes much of the red-tape that a state or local government would need to navigate to prohibit a public gathering. However, even after a public emergency is declared, state and local governments must follow specific rules when taking actions that impact constitutional interests, like the First Amendment rights to assemble peaceably and to the free exercise of religion.
The government may prohibit people from assembling if the restrictions are reasonable, not content-based, and narrowly tailored to meet legitimate public safety concerns. The limits must restrict constitutional rights as little as possible.
Concerning the free exercise of religion, limits must be neutral and generally applicable to all organizations or must involve a compelling governmental interest and be exercised in the least intrusive manner possible.
As far as churches are concerned, if a state or local government has issued an emergency order that is neutral in its applicability and doesn't target churches in a discriminatory manner, it is probably legal.
Police Powers in Texas
Numerous state and local officers are permitted to declare disaster emergencies in Texas. Texas law allows the commissioner of the department of state health services, the governor, mayor, and county judges to declare disasters. The commissioner may declare a public health disaster and institute "control measures" for up to 60 days. Control measures can include detention, restriction, isolation, and quarantine, among other measures. The governor may declare states of disaster and to issue executive orders suspending procedures for state business or rules of state agencies. Mayors and county judges may declare local states of disaster.
On March 19 in Texas, Commissioner Hellerrstedt declared a public health emergency, and Texas Governor Abbot issued an Executive Order, directing that "every person in Texas shall avoid social gatherings in groups of more than 10 people" until at least April 3. On March 23, Bexar County and San Antonio issued executive orders directing all individuals living in the area to stay at home and prohibiting all public or private gatherings occurring outside a single household or single-family living unit until 11:59 p.m. on April 9. People may leave their homes to engage in exempted activities and work in exempted businesses, including "worship services." However, "religious and worship services may only be provided by video, teleconference or other remote measures."
Because the Bexar County and San Antonio orders prohibit don't target churches or religious organizations in a discriminatory matter, the orders prohibiting gatherings for religious or worship services are likely constitutional.
What If My Church Still Meets?
Some churches may be wondering what will happen if they meet in-person, especially if the disaster orders extend until after Easter Sunday. While the State of Texas orders are recommendations, the orders issued by the City of San Antonio and Bexar County are prohibitions. Violation of the City and County orders are punishable by civil penalties of up to $3,000.
City and County law enforcement have said they will focus on businesses that should be closed and would prefer to issue warnings rather than fines. However, the churches themselves and all "non-working" attendees could subject themselves to fines of up to $3,000.
Churches that have questions about in-person meeting and who is considered to be "working" at their religious or worship services should contact their attorney.