In issuing pandemic restrictions, governors in several states have violated the Free Exercise clause of the First Amendment by treating religious organizations less favorably than secular organizations. As the ERLC has repeatedly advocated in our engagements with governor’s offices and city halls around the country throughout this pandemic, churches must be treated the same as similar businesses, spaces, and activities. Fortunately, several recent court decisions have upheld religious liberty and overturned these non-neutral applications. The national turning point in this judicial shift was the religious liberty case decided by the Supreme Court the Wednesday before the Thanksgiving holiday, Roman Catholic Diocese of Brooklyn v. Cuomo. As more cases have worked their way through the federal courts, it appears this New York case has set a new standard for how such disputes should be resolved.
The Roman Catholic Diocese case was based on restrictions imposed in October by New York Gov. Mario Cuomo. The governor issued an Executive Order that imposed severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons could attend each religious service, and in orange zones, attendance was capped at 25. While a house of worship in a red zone could have no more than 10 persons, businesses categorized as “essential” (which included such services as acupuncture clinics) could admit as many people as they wanted. In orange zones, churches were limited to 25 persons, while nonessential businesses could decide for themselves how many persons to admit into their facilities.
The Roman Catholic Diocese of Brooklyn filed an injunction against the order, claiming the restrictions violated the Free Exercise Clause of the First Amendment. The Diocese said the regulations treated houses of worship much more harshly than comparable secular facilities. They also noted that they had complied with all public health guidance, implemented additional precautionary measures, and had operated at 25% or 33% capacity for months without a single outbreak in their congregations.
In a 5-4 ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court sided with the Diocese and prohibited the governor from enforcing the restrictions on religious facilities. In their majority opinion the court said that, “There can be no question that the challenged restrictions, if enforced, will cause irreparable harm,” adding that “even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
On Dec. 15, a three-judge panel of the Ninth Circuit Court of Appeals cited the New York decision in their unanimous ruling in favor of Calvary Chapel, a church in Nevada challenging their governor’s non-neutral pandemic restrictions. The ERLC has been involved in the Nevada church case throughout the year, as Jeff Pickering detailed in a recent piece, The good religious liberty news for churches in Nevada from the 9th Circuit.
In that case, Nevada Gov. Steve Sisolak had implemented pandemic reopening orders which allowed many businesses— including casinos, indoor theme parks, gyms, and restaurants—to reopen at half capacity. But for some other locations—including movie theaters, museums, and churches—the order capped attendance at 50 people, regardless of the size of the facility or what other measures are taken to prevent the spread of COVID-19.
The governor’s directive was later revised in a way that limited casinos and other businesses to 25% of fire-code capacity while houses of worship were restricted to 25% of fire-code capacity or 50 persons, whichever was less. For example, a casino that could hold 2,000 would be allowed to have 500 people while a church that could hold 2,000 would be limited to 50 people.
Calvary Chapel Dayton Valley challenged the order in court, claiming the governor’s directive was a violation of the Free Exercise Clause of the First Amendment to the United States Constitution. The district court denied the church’s request for a preliminary injunction barring enforcement of the Directive against houses of worship, but that decision was reversed by a unanimous panel on the U.S. 9th Circuit Court of Appeals.
The Ninth Circuit said in part, “The Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, arguably represented a seismic shift in Free Exercise law, and compels the result in this case.” Based on the injunctive relief, Nevada houses of worship will be allowed the same 25% limit as other facilities, without the 50-person cap.
Also on Tuesday, the Supreme Court overturned two lower-court rulings that had permitted states to enforce similar non-neutral restrictions against houses of worship. In a Colorado case, a federal district court had denied a request by High Plains Harvest Church to bar the state from enforcing capacity limits. A similar case in New Jersey that limited attendance at houses of worship to the smaller of 25% of capacity or 150 people, was also thrown out. In yet another case, decided earlier this month, the justices ordered a federal district court to reconsider the case of Harvest Rock Church, a Christian church with multiple campuses in California, that had challenged that state’s restrictions on indoor worship services.
“Tuesday’s orders are further evidence of the broader impact of the New York ruling,” says Amy Howe, a reporter that cover the Supreme Court, “which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.”
As the ERLC has stated since the onset of the pandemic in the United States, the First Amendment provides broad and strong protections for religious exercise, and governments should ordinarily avoid any interference with a church’s worship practices. For this reason, we repeatedly counseled that civic leaders should regularly assess whether restrictions and exemptions are applied consistently and in a way that respects First Amendment protections for houses of worship. For the same reasons, we have also encouraged state and local officials to issue guidance rather than mandates and to view churches and religious organizations as allies in the fight to combat the virus.
The separation of church and state is a vital aspect of American life. Guidelines equip pastors and faith leaders with the tools they need to make the best decisions for their own congregations and parishioners. In issuing guidelines instead of mandates during a long-lasting public health challenge like the COVID-19 pandemic, government officials invite the cooperation of faith leaders without encroaching upon their authority or autonomy. But in any event, as the Supreme Court has recently indicated, it is critical that the government not discriminate against houses of worship by treating them differently than similarly situated secular entities.