Religious Exemptions Extend into COVID–19 Precautions

As many by now have learned, the Supreme Court recently halted New York Governor Andrew Cuomo’s public safety restrictions on religious services in certain areas with high rates of COVID-19. At issue in the case, Roman Catholic Diocese of Brooklyn v. Cuomo, was that two religious institutions, the Roman Catholic Diocese and Agudath Israel, sought an injunction against Governor Cuomo’s executive order imposing restrictions on gatherings at houses of worships in areas classified as “red” or “orange” zones during the pandemic. Red zones restrict such gatherings to ten people and orange zones restrict such gatherings to 25 people. Notably, this was Justice Amy Coney Barrett’s first case on the Supreme Court since being sworn in. A decision was issued per curiam, however, meaning without a named author. As such, all we know of the new Justice’s position is that she sided with the conservative majority but issued no opinion of her own.

The majority opinion makes no mention of COVID-19 cases or deaths, nor speaks to expert recommendations. Instead, only a single line states, “[m]embers of this Court are not public health experts, and we should respect the judgement of those with special expertise and responsibility in this area.” Alas, this one sentence did little to deter granting the injunction against the restrictions on public gatherings. According to the Court majority, houses of worship were given far more severe restrictions than both essential and non-essential businesses in areas designated as red zones and orange zones. The Court also took issue with the Governor’s classification of essential businesses, highlighting “acupuncture facilities, camp [sic] grounds, garages” as well as services the Court believes are not essential such as “plants manufacturing chemicals and microelectronics and all transportation facilities.” The majority highlighted that, “[s]temming the spread of COVID-19 is unquestionably a compelling interest.” But they believed the executive order simply was too severe and that leniency towards houses of worship was required. The Court noted that houses of worship which could seat between 400 and 1,000 people were limited to 10-25 people. “It is hard to believe that admitting more than 10 people to a 1,000–seat church or 400–seat synagogue would create a more serious health risk than the many other activities that the State allows.” This naturally raises concerns, however, about what else could be a permissible restriction in light of the opinion.

In contrast to the majority’s concerns, Justice Neil Gorsuch wrote a scathing concurring opinion about restrictions on religious services generally. Justice Gorsuch boldly stated, “Government is not free to disregard the First Amendment in times of crisis.” He even went so far as to attack Chief Justice John Roberts’ earlier decision in South Bay United Pentecostal Church v. Newsom, which first allowed COVID restrictions to be placed on churches, deferring judgements to governors on how to best protect the public from the threat of a new pandemic.

Justice Gorsuch’s specific issue with South Bay was a citation to Jacobson v. Massachusetts, a 1905 case permitting mandatory smallpox vaccinations. The citation in South Bay merely stated “[o]ur Constitution principally entrusts ‘[t]he safety and health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” Yet Justice Gorsuch asserts this citation was a towering authority in the South Bay decision—giving it a much more important role than it actually had—and attempted to distance it as far as possible from the current pandemic . Justice Gorsuch focused solely on the citation’s placement as, “the first case South Bay cited on the substantive legal question before the Court” and “it was the only case cited involving a pandemic.” Chief Justice Roberts responded in his dissent that Gorsuch, “speculates that there is so much more to the sentence [used in South Bay] than meets the eye, invoking—among other interpretive tools—the new ‘first case cited’ rule.” The Chief Justice points out that the textualist Justice Gorsuch “must reach beyond the words themselves to find the target [he] is looking for.”

Justice Gorsuch’s concurrence served as a scathing remark on the Supreme Court’s handling of state-level decisions during the COVID-19 pandemic. To Justice Gorsuch, permitting grocery stores, liquor stores, bike stores, and acupuncturists more lenient restrictions than churches makes little sense. How can a liquor store be considered essential but not houses of worship?

Justice Brett Kavanaugh voiced a different concern in his concurrence to Justice Gorsuch. According to Kavanaugh, “once a state creates a favored class of businesses [essential businesses], as New York has done in this case, the State must justify why houses of worship are excluded from that favored class.” Justice Kavanaugh distanced himself from the statements of Justice Gorsuch, stating he “do[es] not doubt the State’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike.” Instead, Justice Kavanaugh took specific issue with the severity of New York’s restrictions, comparing them to that of the kind permitted in South Bay for California and Calvary Chapel Dayton Valley v. Sisolak for Nevada. Justice Kavanaugh even agreed with the South Bay assertion that the health and safety of the people is entrusted to the politically accountable. “Federal courts . . . must afford substantial deference to state and local authorities about how to best balance competing policy considerations during the pandemic,” wrote Justice Kavanaugh. But despite these reassuring words the justice still ruled in favor of the court’s injunction.

Writing in dissent of the majority decision, Justice Sonia Sotomayor points out that houses of worship function in stark contrast to those establishments labeled “essential.” Taking specific issue with Justice Gorsuch, Justice Sotomayor explains, “Justice Gorsuch does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.” Justice Sotomayor aptly states, “[u]nlike religious services, which ‘have every one of tho[se] risk factors,’ bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time.” She goes on to emphasize that, “Justices of this Court play a deadly game in second guessing the expert judgement of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”Further, Justice Sotomayor explains houses of worship are actually treated more favorably than comparable secular gatherings, such as movie theatres, concert venues, and sporting arenas.

Likewise, Justice Stephen Breyer’s dissent highlights the rising number of cases of COVID-19, “[n]ationwide, the number of new confirmed cases per day is now higher than it has ever been.” He continued, “members of the scientific and medical communities tell us that the virus is transmitted from person to person . . . when a person or group talk, sing, cough, or breathes near each other.” He echoed the distinctions between houses of worship and those businesses labelled “essential” noting the lower courts’ finding that houses of worship were more akin to public lectures, concerts and theatrical performances with comparable risks.

Unfortunately, Justice Gorsuch’s concurrence will likely put lower courts on edge when considering challenged restrictions, resulting in broader exemptions for houses of worship. Further, the question of what restrictions are permissible regarding houses of worship is left without answer by the majority. The Supreme Court has already granted another injunction in California, vacating a lower court’s decision, and remanding the case to be reconsidered in Harvest Rock Church v. Newsom. This is important because California has already been to the Supreme Court regarding its COVID-19 restrictions in South Bay. At that time, their restrictions were upheld. Based on the decision in Roman Catholic Diocese, and particularly Justice Gorsuch’s concurrence, it’s unlikely California will again be afforded the same deference in how it attempts to stem the spread of COVID-19 going forward.

Broadly, this decision as well as California’s, paints a bleak picture for future laws. We’ve seen exemptions growing for religious objectors in employment and education. These exemptions now seem to reach into public health and safety. While the Court’s majority in Roman Diocese showed much restraint as compared to Justice Gorsuch, it makes clear the conservative super-majority in the Supreme Court places religion atop our societal hierarchy. Now, if a law specifically names religion, there is a presumption that it is unconstitutional. It isdifficult, then, to predict where the line will be drawn on these exemptions–if any line is drawn at all. What is clear is that, in the eyes of the Supreme Court, houses of worship are “essential” and as such States will have to tread carefully in setting restrictions on gatherings as this pandemic plays out into the coming new year.