Is there any judicial precedent regarding US governors' power (or lack thereof) to limit church attendance in an emergency?

Question

A federal judge in Kansas ruled it might be unconstitutional:

A federal judge signaled that he believes there's a good chance that Kansas is violating religious freedom and free speech rights with a coronavirus-inspired 10-person limit on in-person attendance at religious services or activities and he blocked its enforcement against two churches that sued over it.

The ruling Saturday from U.S. District Judge John Broomes in Wichita prevents the enforcement of an order issued by Gov. Laura Kelly against a church in Dodge City in western Kansas and one in Junction City in northeast Kansas. The judge's decision will remain in effect until May 2; he has a hearing scheduled Thursday in the lawsuit filed against Kelly by the two churches and their pastors, on whether he should issue a longer-term or broader injunction.

Kelly continued to defend her order in a statement: "This is not about religion. This is about a public health crisis.” [...]

Broomes directed the churches to abide by recommendations for social distancing that people stay 6 feet apart and to continue following other practices the lawsuit said they had imposed, such as not using collection plates. [...]

Top Republican legislative leaders moved last week to revoke Kelly’s order on church gatherings themselves, only to see the Democratic governor thwart their efforts by contesting their action before the Kansas Supreme Court. The state’s highest court let her order stand on technical grounds, without deciding whether it violated freedoms guaranteed by the U.S. or Kansas constitutions.

The details in this case seem to matter, i.e. the judge seems to have had no objection against some of the physical distancing parts of the governors' order (e.g. 6-feet distance), which probably implicitly limit attendance numbers in closed spaces, but otherwise seems to have objected to an arbitrary ceiling to the number of people gathered.

Since the US went through a pandemic before, in 1918-1919, in which also some gatherings were banned or at least cancelled, I'm curious if there have been any judicial precedents for this kind of case, i.e. whether limiting the number of attendants to an arbitrary figure was in question.

Answer 1

The main relevant bit of constitutional law is Employment Division v. Smith, 494 U.S. 872, where it was held that a general law against use of peyote does not violate the Free Exercise clause, though in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 a law specifically designed to restrict Santeria animal sacrifices is an undue burden on religion. The Employment Division court cites Cantwell v. Connecticut, 310 U.S. 296 and Wisconsin v. Yoder, 406 U.S. 205 as the only cases where the First Amendment prevents a generally applicable law from applying in a religious context, which the court notes "are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections". The TRO doesn't go into detail about the reasoning:

Based on the materials presented and the arguments of counsel, the court finds: (1) Plaintiffs are likely to succeed on the merits of their claim alleging a violation of their First Amendment right to the free exercise of religion

So it is hard to say on what grounds the plaintiffs are likely to succeed.

The governor's order is a bit peculiar, because it initially looks like a neutral 10-person limit on gatherings, but on the one hand makes an exception for religious events by allowing any number of people "officiating" so sets the limit on participants (advantage to religion, not constitutional), but then also includes numerous exceptions to the order, including schools, day-care, food pantries, detox centers, shopping malls, restaurants and so on. The set of exceptions is large enough that one might conclude that this is an undue burden on the exercise of religion. The breadth of the number of exceptions undermines claims of "necessity" which are crucial to any order that closes churches.

Answer 2

In the geographic domain overseen by 5th Circuit Court of Appeals the answer is (likely) yes. They have just temporarily upheld the abortion provisions of the Texas Governor's COVID order (In re Abbott). In doing so, they noted in their decision that in a public health crisis such as COVID the government can prohibit religious assembly:

“[U]nder the pressure of great dangers,” constitutional rights may be reasonably restricted “as the safety of the general public may demand.” Id. at 29. That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home"

"Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency."

They also cited:

See Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (“The right to practice religion freely does not include liberty to expose the community . . . to communicable disease.”).

Answer 3

Well, there was another recent case:

In Maryville Baptist Church, Inc. v. Beshear, (WD KY, April 18, 2020), a Kentucky federal district court refused a request by a church and its pastor to issue a temporary restraining order against enforcing Governor Andy Beshear’s ban on mass gatherings. The ban includes in-person religious services. The court said in part:

Plaintiffs seek to compare in-person attendance at church services with presence at a liquor store or “supercenter store[].” The latter, however, is a singular and transitory experience: individuals enter the store at various times to purchase various items; they move around the store individually—subject to strict social-distancing guidelines…—and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose….

Similarly unpersuasive is Plaintiffs’ contention that the orders violate their right to freely exercise their religion by discriminating against religious conduct. Again, the order temporarily prohibits “[a]ll mass gatherings,” not merely religious gatherings…. Religious expression is not singled out.

So in that case the judge found that discriminating the religious service from a liquor store was permissible because of the length of the stay. I don't know if any appeals have been announced in that case.

And another

In Legacy Church, Inc. v. Kunkel, (D NM, April 17, 2020), a New Mexico federal district court refused to enjoin enforcement of the Order issued by the New Mexico Department of Health that bars gatherings of more than five people in houses of worship. Legacy Church, a megachurch, requires approximately 30 clergy and technical staff members to live stream its religious services. Summarizing its 100-page opinion, the court said:

The primary issues are: (i) whether Plaintiff Legacy Church, Inc…. is likely to succeed on the merits in demonstrating that Defendant Kathyleen M. Kunkel’s Public Health Emergency Order (4-11-20-PHO)…, which restricts places of worship from gathering more than five people within a single room or connected space, violates Plaintiff Legacy Church’s rights under the Free Exercise Clause of the First Amendment….; and (ii) whether Legacy Church is likely to succeed on the merits in demonstrating that the Order violates [its]… rights to peaceably assemble under the First Amendment. The Court concludes that: (i) the Order does not violate Legacy Church’s First Amendment religious freedom rights, because the Order is neutral and generally applicable; and (ii) the Order is a reasonable time, place, and manner restriction, and so does not violate Legacy Church’s First Amendment rights to assemble.

So, in some other preliminary judgements not necessarily strictly comparable to the Kansas one, the degree of uniformity of the ban (across types of establishments) was a factor (surely due to Employment Division v. Smith).