Gabriel Rench didn’t expect to be arrested for singing hymns. On September 23, 2020, he and two fellow congregants from Christ Church joined roughly 150 people at a Moscow, Idaho, parking lot for a 20-minute outdoor “psalm sing” — a peaceful protest of the city’s mask mandate. Police arrested all three. In July 2023, the city paid $300,000 to settle its First Amendment lawsuit. The federal judge didn’t mince words: the city had “indisputably erred in interpreting its own Code,” wrongfully arrested the plaintiffs, and misadvised its officers. He told the parties to settle. They did.
Moscow is just one data point in a national pattern. During COVID lockdowns, governments across America shut down churches while liquor stores, marijuana dispensaries, and big-box retailers stayed open. Courts struck the restrictions down. And the Supreme Court established a free exercise precedent that will constrain emergency powers for decades. I’ve spent thirty years in institutional investment management watching administrative authorities expand to fill every available space.
COVID church shutdowns were that dynamic in its most constitutionally stark form.
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The shutdowns and the asymmetry
California limited churches to 25% capacity while movie studios, tattoo parlors, and government offices operated under different rules. Los Angeles County ordered Grace Community Church to cease indoor services entirely. Washington, D.C., restricted outdoor worship gatherings to 100 people while secular activities faced no equivalent cap. Bible studies in private homes were banned while hair salons stayed open. That asymmetry has a constitutional name. Its religious discrimination dressed in epidemiology.
The legal reversal
The Supreme Court had held since Employment Division v. Smith (1990) that neutral, generally applicable laws don’t require strict scrutiny under the Free Exercise Clause. Smith gave governors legal cover in the early months. The Court initially deferred — South Bay United Pentecostal Church v. Newsom (May 2020) declined to enjoin California’s order, with Chief Justice John Roberts citing deference to public health expertise. Four justices dissented.
Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg in October 2020. In Roman Catholic Diocese of Brooklyn v. Cuomo (November 2020), the Court blocked New York’s capacity limits 5-4. And in Tandon v. Newsom (April 2021), the Court adopted the “most-favored-nation” standard: government restrictions are not neutral whenever they treat any comparable secular activity more favorably than religious exercise. A hair salon serving ten people can’t face lighter rules than a church serving ten people. Tandon is the most significant free exercise ruling since Smith itself.
The bill
Harvest Rock Church received $1.35 million. South Bay and Father Burfitt received a combined $2.15 million. Grace Community won $800,000, after Los Angeles County had already burned $950,000 in legal fees defending the orders. Moscow paid $300,000. California’s total settlements alone exceeded $5 million — from public health budgets, paid by the same taxpayers told their churches were “nonessential.”
When the virus had politics
The church shutdowns might have survived as genuine public health policy. The summer of 2020 ended that argument. George Floyd died on May 25. Within days, mass protests swept American cities. The officials who had spent months telling citizens that any gathering was a potential death sentence suddenly discovered an exception. The virus, it turned out, had politics.
On June 1, 2020, more than 1,200 doctors and epidemiologists signed an open letter endorsing the BLM protests as “vital to the national public health.” The same week, those same voices were silent about the padlocked playgrounds and shuttered churches. U.S. District Judge Gary L. Sharpe ruled that New York Gov. Andrew Cuomo could not praise BLM protesters for defying his orders and simultaneously enforce those orders against churches. Hypocrisy is not a neutral public health policy.
Lori Lightfoot marched with protesters in June 2020 and months later told citizens to cancel Thanksgiving. Gavin Newsom closed beaches and shut playgrounds while liquor stores stayed open, then told NBC’s Chuck Todd: “We didn’t know what we didn’t know.” That answer holds up precisely as well as you’d expect from the man who attended a maskless dinner at the French Laundry while ordering his constituents to eat alone.
The First Amendment doesn’t have an off switch
Tandon’s most-favored-nation standard is now settled law. Any government restriction that treats a comparable secular activity more favorably than religious exercise triggers strict scrutiny. The next governor who tries what Newsom did will find Tandon, Roman Catholic Diocese, and Fulton v. City of Philadelphia waiting — along with seven Supreme Court justices who have signaled that Smith itself may not survive much longer.
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Gabriel Rench sang a psalm outside a city hall. He was handcuffed and booked. The city paid $300,000 and signed a release of all liability. Constitutional rights don’t become negotiable when circumstances become difficult.
Bureaucrats who treat them as seasonal are reminded, eventually, that the bill for forgetting them comes due.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.