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.”