The Winter Of Our Discontent: Americans Are Battling A Resurgent Coronavirus Pandemic. Why Is The Supreme Court Making The Job More Difficult?

Throughout 2020, the majority of courts – including the U.S. Supreme Court – refused to grant religious exemptions from state public health orders aimed at preventing the spread of coro­na­virus through limits to large in-per­son gatherings.

That changed on the night before Thanksgiving, when the Supreme Court with its new, more conservative lineup reversed course and ruled against New York Gov. Andrew Cuo­mo’s health order that set limits on both religious and secular gatherings based on the prevalence of COVID-19 in particular neighborhoods. Cuomo had established color-coded zones with levels of restrictions for all man­ner of businesses and activities; for houses of worship, that could mean limiting gatherings to no more than 10 or 25 people, or 25 percent to 50 per­cent of a worship space’s capacity, depending on the zone.

In an unsigned “per curiam” opin­ion issued just before midnight on Nov. 25, the new Supreme Court majority blocked New York from enforcing the most stringent of the limits on religious gatherings in response to two lawsuits filed by the Roman Catholic Diocese of Brooklyn and several Orthodox Jewish groups, including Agudath Israel of America.

“Members of this Court are not pub­lic health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the court wrote. “But 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.”

Americans United CEO Rachel Laser denounced the court’s decision: “The Supreme Court’s order misuses religi­ous freedom and endangers the public health of everyone in New York. With coronavirus cases spiking across the country, we should be heeding the advice of public health experts who recommend limiting large gatherings. COVID-19 doesn’t discriminate be­tween religious and secular gatherings; on numerous occasions, infections at houses of worship have led to major outbreaks in surrounding com­munities.

“The Constitution promises that religious freedom is a shield to protect us – not a sword that licenses harm to our communities,” Laser continued. “It’s shocking that the Supreme Court would ignore this fundamental prin­ciple, especially in the midst of a wors­ening pandemic.”

The court majority determined that New York’s order “single[d] out houses of worship for especially harsh treatment” because some sec­u­lar entities didn’t face the same limits. To make this point, the court com­pared the limits on houses of worship to those placed on businesses such as acu­puncturists, campgrounds, ga­rages, manufacturing plants and trans­portation facilities.

In a concurring opinion, Justice Neil M. Gorsuch felt that bus stations, airports, laundromats, banks, hard­ware stores and liquor shops were also apt comparisons to houses of worship. “[T]here is no world in which the Constitution tolerates color-coded executive edicts that re­open liquor stores and bike shops but shutter churches, synagogues, and mosques,” Gorsuch wrote.

But in friend-of-the-court briefs filed in both cases, Americans United (joined by a dozen interfaith and religious freedom organizations) not­ed that houses of worship actually were less restricted than comparable secular entities such as restaurants, salons, gyms, concerts, live theatrical performances and professional sport­ing events. All are places that would normally include gatherings most similar to religious services – people in close proximity, indoors, for a pro­longed period of time, often with sing­­ing or speaking.

In her dissent, Justice Sonia Soto­mayor called out Gorsuch’s compari­sons.

“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,” Sotomayor observed.

Sotomayor, whose dissent was joined by Justice Elena Kagan, wrote that the Supreme Court’s opinion in the New York cases ignored the stand­ard the court had used twice just a few months earlier when the justices re­fused to grant religious exemptions to public health orders in cases brought by South Bay United Pentecostal Church in California and Calvary Chapel Dayton Valley in Nevada.

“South Bay and Calvary Chapel provided a clear and workable rule to state officials seeking to control the spread of COVID–19: They may re­strict attendance at houses of worship so long as comparable secular insti­tu­tions face restrictions that are at least equally as strict,” Sotomayor wrote.

In the South Bay and Calvary Chapel cases, Chief Justice John G. Roberts provided the key fifth vote to deny the religious exemptions. In South Bay, the first of the corona­virus-related cases involving religious freedom to come before the court, Roberts wrote a concurrence that became a guide, if not a formal legal precedent, for how the federal courts should balance constitutional rights to religious freedom and the need to protect public health.

“Although California’s guidelines place restrictions on places of wor­ship, those restrictions appear consis­tent with the Free Exercise Clause of the First Amendment,” Roberts wrote in South Bay. “Similar or more severe restrictions apply to comparable sec­u­lar gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended peri­ods of time. And the Order exempts or treats more leniently only dissimi­lar activities, such as operating gro­cery stores, banks, and laundro­mats, in which people neither congregate in large groups nor remain in close prox­imity for extended periods.”

But both the California and Nev­ada cases reached a Supreme Court that included Justice Ruth Bader Gins­burg, and Roberts was able to join the four more liberal justices in those 5-4 rulings. After Ginsburg died in Sep­tem­ber, her seat was filled by con­serv­ative Justice Amy Coney Bar­rett – who, as Americans United noted in an analysis of her record, has shown hostility toward church-state separa­tion. Not long before she was con­firmed to the U.S. Supreme Court, Bar­rett was a member of a 7th U.S. Cir­cuit Court of Appeals panel of judges that ruled Illinois could ex­empt religious gatherings from its pub­lic health orders.

Barrett joined with the Supreme Court justices who dissented in the earlier COVID-19 cases – Gorsuch, Samuel A. Alito, Brett M. Kavanaugh and Clarence M. Thomas – to form an ultra-conservative majority that grant­ed religious exemptions in the New York cases. The ruling came just a few weeks after Alito delivered a hy­per­-partisan speech to the conserv­ative Federalist Society, during which he railed against coronavirus-related restrictions.

Roberts again sided with the court’s remaining liberal members and dissented from the November ruling in the New York cases. In his dissent, Roberts primarily objected because the request for emergency relief in the New York cases was moot – due to improvements in the affected neighborhoods’ COVID transmission rates, the state had changed the des­ignations, and houses of worship that were plaintiffs in the case no longer had to abide by the restrictions that they were challenging.

Justice Stephen G. Breyer, writing in a separate dissent that was joined by Kagan and Sotomayor, agreed with Roberts that the cases in New York were moot. But Breyer went further than Roberts in voicing grave concern about judges overturning policies that are based on the advice of medical, scientific and public health experts.

“COVID–19 has infected more than 12 million Americans and caused more than 250,000 deaths nationwide. At least 26,000 of those deaths have occurred in the State of New York, with 16,000 in New York City alone. And the number of CO­VID–19 cases is many times the num­ber of deaths. The Nation is now    ex­per­iencing a second surge of infec­tions,” Breyer wrote. “At the same time, members of the scientific and medical communities tell us that the virus is transmitted from person to person through respiratory droplets produced when a person or group of people talk, sing, cough, or breathe near each other. Thus, according to experts, the risk of transmission is higher when people are in close con­tact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces.

“The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has counter­vailing arguments based upon health, safety, and administrative consider­ations that must be balanced against the applicants’ First Amendment chal­lenges,” Breyer continued.

Since the early days of the COVID-19 pandemic, health experts have warned that religious gatherings, in­cluding regular services at houses of worship and rituals such as wed­dings and funerals, have the potential to be “super-spreader” events that can lead to coronavirus infections among both attendees and people in their com­munities with whom at­tend­ees come into contact.

In early November, a group of re­searchers published a study that sug­gests limiting the number of people inside a handful of commonly visited places – including houses of worship – would be an effective method of reducing infections. That suggestion was derived by a research team from Stanford and North­west­ern univers­ities that used cell­phone location data to track people’s movements and model the potential spread of COVID-19 in 10 large U.S. cities.

“On average across metro areas, full-service restaurants, gyms, hotels, cafes, religious organizations, and limited-service restaurants produced the largest predicted increases in in­fections when reopened,” the re-search­­ers reported.

CNN reported the model found “that there are about 10% of points-of-interest that account for over 80% of all infections, and these are places that are smaller, more crowded and people dwell there longer,” according to Jure Leskovec, an author of the study and associate professor of com­puter science at Stanford University.

There have been dozens of COV­ID-19 clusters associated with houses of worship. One early example was in Arkansas, where the pastor of First Assembly of God Church in rural Greers Ferry and his wife were the first known cases of COVID-19 in their county. Before they developed symptoms or knew they’d been in­fected, they came into contact with parishioners during at least two church events, according to a report published by the Centers for Disease Control and Prevention in May. More than a third of the nearly 100 at­tendees contracted COVID-19; three of them died. At least another 25 people in the community were also infected, leading to an additional death, according to the CDC.

The pastor, Mark Palenske, and his wife recovered, though she was hos­pi­tal­ized, according to media reports. In a social media post, he urged pari­sh­ioners to take the disease seriously and follow health guidelines, accor­ding to NBC News. “Maybe you as­sumed that it couldn’t happen to you, just like I did,” Palenske wrote. “Please adhere to the social instruc­tions that you are receiving locally and nationally.”

The majority of faith communities and faith leaders have complied with public health guidelines. Many moved to online or outdoor services, and for indoor services, they dras­ti­cal­ly limited the number of attend­ees and implemented safety precau­tions such as requiring masks, social distancing and enhanced cleaning and ventilation.

But some religious groups have defied restrictions placed on in-per­son worship from the beginning, claiming that any limitations violated their religious freedom rights. Several dozen houses of worship, many aided by Christian nationalist legal organi­zations, have filed lawsuits across the country, challenging the constitu­tion­ality of restrictions on gatherings and seeking religious exemptions.

Those legal challenges were some­what muted by the Supreme Court’s early rulings in California and Nev­ada, and by the loosening of restric­tions over the summer as the prev­alence of the coronavirus eased. But the legal activity began to heat up again in the fall as the pandemic worsened and gath­erings were restricted again – and as the balance of power shifted on the Supreme Court.

As of mid-December, Americans United had filed more than 40 friend-of-the-court briefs in these cases, de­fending the public health orders of more than a dozen states. AU’s briefs explained that it was not only permis­sible to place restrictions that apply equally to both secular and religious gatherings, but that it would be un­con­sti­tutional to grant special privi­leges to religious groups when those privileges might result in harm – and even death – to other people.

“Upholding public health restric­tions now will benefit the precious right of religious freedom, not harm it,” said Alex J. Luchenitser, AU’s as­sociate vice president & associate legal director. “Controlling the pan­demic today will enable houses of worship to safely resume regular religious serv­ices sooner, while en­suring that more congregants are alive to engage in worship in the future.”

As this issue of Church & State was going to press, the high court had sent at least three cases, relating to restric­tions imposed by California, New Jersey, and Colorado, back to lower courts for further consideration in light of the court’s opinion in the New York cases. But the court declined a request from private religious schools in Kentucky that were seeking the right to open despite a state order that had temporarily closed all schools. The court said the question was moot because the order was soon to expire.

Regardless of the court outcomes, AU’s Laser called on faith com­mun­ities to protect people by following public health guidance. “While the court’s or­der gives freer rein for larger religious gatherings to occur [in New York], that does not mean that they must or should oc­cur,” she said. “We urge houses of worship and religious organi­za­tions to consider the health and safe­ty of the entire community and con­tin­ue to follow the advice of health ex­­perts.

“We sympathize with the families and congregations yearning to come together to worship, celebrate holi­days and find solace at the end of a challenging year,” Laser added. “But limiting large gatherings now will help us get the pandemic under con­trol and allow us to come together again – safely – that much sooner.”