State and local governments have imposed restrictions on gatherings, including church and religious gatherings, due to the COVID-19 pandemic. The regulations vary greatly from jurisdiction to jurisdiction, from suggestions for COVID-19 safety protocols to restrictions limiting the number of individuals who can gather to worship. Many have been concerned that the government has used the COVID-19 pandemic as a pretext for overreaching and violating the separation of Church and State, as well as infringing on the right to Free Exercise of Religion under the First Amendment to the United States Constitution.
The facts of the case
The State of New York is one of the jurisdictions that imposed harsh restrictions on those gathering to worship, and those restrictions were recently evaluated by the U.S. Supreme Court, in the case of Roman Catholic Diocese of Brooklyn, New York v. Cuomo.1 The Supreme Court issued an injunction prohibiting the state from enforcing its restrictions. This case makes for very interesting study for a couple reasons. First, it provides an opportunity to review the current trend in constitutional law as it relates to the freedom of the church from state control, which has been a developing area of jurisprudence in recent years. Some commentators have opined that this ruling is the most significant religious liberty ruling in 30 years.2 Second, it provides useful instruction for our churches, both as we deal with restrictions due to the COVID-19 pandemic and as we deal with other issues of government regulation on our worship services, which are likely to become more and more frequent in the near future.
First, we will look briefly at the facts of the recent Supreme Court ruling. In response to the COVID-19 outbreak, New York Governor Andrew Cuomo issued an executive order restricting activities in certain “zones” within the state. In red zones, no more than 10 persons could attend a religious service, and in orange zones, the attendance was capped at 25. The Supreme Court case involved challenges to these restrictions brought in two separate cases, one by the Roman Catholic Diocese of Brooklyn and another brought by Agudath Israel of America, which is an Orthodox Jewish community. These two religious groups challenged the restrictions, arguing that they violated the Free Exercise clause and imposed especially harsh restrictions on houses of worship compared to secular activities.
The Court found that the groups were entitled to injunctive relief, which is a court order barring the government from enforcing the restrictions. The Court noted that both religious groups had complied with all public health guidance, had implemented additional precautionary measures, and had operated without a single COVID-19 outbreak. The Court found that under these circumstances, the restrictions violated the “minimum requirement of neutrality” to religion. The court noted that in the “red zone,” churches were limited to 10 persons, while “essential businesses” could admit as many people as they wished. The Court noted that the disparate treatment was even more striking in the “orange zones,” where churches were limited to 25 persons, but even non-essential businesses could decide for themselves how many people to admit.
This decision was a 5-4 decision, with Chief Justice John Roberts siding with the Court’s liberal wing, but mostly on procedural grounds. Chief Justice Roberts reasoned that, by the time the injunction was issued, the zones had changed so that the parties in this case were no longer affected. Justice Breyer, joined by Justices Sotomayor and Kagan, dissented, arguing that there was no need for the “extraordinary remedy” of an injunction, since the Second Circuit Court of Appeals had not had an opportunity to rule on the issue yet.
The Court’s decision to provide immediate relief with an injunction demonstrates that the Court believed worshipers would suffer a serious infringement on rights if the ability to gather for worship were abridged for even a short time. The majority found that the public would suffer irreparable harm from the restrictions, stating that
If only 10 people are admitted to each service, the great majority of those who wish to attend [services] will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance.3
The Court acknowledged that the pandemic presented unprecedented issues, and responded by stating, “But even in a pandemic, the Constitution cannot be put away and forgotten.”4 The majority’s recognition of the importance of personal attendance at worship services is noteworthy. The majority clearly put a much higher value on the free exercise of religion than the minority, who were more concerned by the public health threat. Concurring opinions by Justices Neal Gorsuch and Brett Kavanaugh noted that the restrictions not only infringed upon religion, but also discriminated against religion in contrast to secular activities.
The legal framework
The Brooklyn Diocese case is a continuation of a trend in Supreme Court jurisprudence in recent years, and the changing composition of the Court seemingly served to continue that trend. The decision likely would have been 5-4 in favor of the state of New York if Justice Amy Coney Barrett had not replaced liberal Justice Ruth Bader Ginsburg. The concurring opinions in support of injunctive relief by Justices Gorsuch and Kavanaugh demonstrate that these recent appointees also feel strongly about protecting religious freedom, and the freedom to worship in particular. Justice Kavanaugh replaced Justice Anthony Kennedy, who often voted with the liberal wing of the court.
Although the composition of the Court may have had an effect on this particular decision, the Court has been trending towards greater protection of religious liberty for several years, even before the recent changes in justices. Previously, in the case of Sherbert v. Verner, the Supreme Court had stated that the government could not enforce laws that imposed a “substantial infringement” on a person’s religious beliefs unless such infringement was justified by a “compelling state interest.” While the phrase “compelling state interest” is somewhat vague of itself, in legal parlance it generally meant the law was subject to strict scrutiny, and must be the “least restrictive means” to achieve an important government purpose. Laws discriminating based on race are subject to this standard, and most laws subject to such strict scrutiny are struck down.
However, the standard applied to free exercise cases did not seem to be as rigid as that applied to discrimination on other bases, such as race. Studies demonstrated that courts applying the strict scrutiny standard were much more likely to strike down laws limiting free speech or discriminating on bases such as race than they were laws putting burdens on religious exercise.5 Then in 1990, the Court issued its ruling in the case of Employment Division v. Smith,6 which held that “neutral laws of general applicability” were valid, even if they imposed on an individual’s religion. In other words, as long as a law applied equally to religious and secular entities, it would be upheld, even if it limited religious freedom. Members of both political parties were so concerned by this that Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) to restore the strict scrutiny standard of Sherbert, at least with regard to federal laws. The RFRA did not apply to laws enacted by state governments, such as the COVID-19 gathering restrictions in the Brooklyn Diocese case.
While this line of jurisprudence developed in regard to individual religious freedom, a separate line of cases governed religious freedoms in the business context. The 1982 case of United States v. Lee held that “when followers of a religious sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”7 The general concept seemed to be that businesses and corporations do not have religious freedoms, and whatever beliefs the owners or managers of the business may have, any protection of those beliefs did not extend to the business.
This attitude towards business and religious freedoms changed dramatically with the landmark case of Burwell v. Hobby Lobby,8 which we have analyzed in greater detail previously.9 As we noted at that time, this case is significant in that it broadly recognized the exercise of religion as an activity that pervades all aspects of life, and also extended the protection of the Religious Freedom Restoration Act to corporations and businesses. It should be noted that this still only provided protection from religious infringement by the federal government and federal laws.
This leads us up to the present day and the Brooklyn Diocese case. This case is a significant development in religious liberty law for two reasons. First, the Court granted an injunction prohibiting a State from enforcing its restrictions. This is significant because, as previously stated, the RFRA only applies to laws and actions of the federal government. The court also seemed to focus its attention on the fact that secular entities were exempted from the restrictions while churches were not. At first blush, this may seem to be similar to the “neutral laws of general applicability” standard of the Smith case, which is the position taken by Justice Breyer in voting to uphold the restrictions. However, the majority in the Brooklyn Diocese seemed to indicate that if there are any exemptions for secular entities, the burden is on the State to prove that religious organizations should not also be exempt. If this is, in fact, the majority’s position, it could have far-reaching effects, as many laws have exemptions of some sort.
In our next installment of this subject, we will look at the implications of this trend in religious liberty jurisprudence for our churches.
1 Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 592 U.S. _____(2020).
2 Ian Millhiser, “Religious Conservatives have won a revolutionary victory in the Supreme Court,” Vox, December 2, 2020.
3 Roman Catholic Diocese of Brooklyn, at 5.
4 Roman Catholic Diocese of Brooklyn, at 5.
5 Adam Winkler, “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts,” 59 Vand. L. Rev. 793 (2006).
6 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
7 United States v. Lee, 455 U.S. 252, 261 (1982).
8 Burwell v. Hobby Lobby, 573 U.S. 682 (2014).
9 Brian VanEngen, “The Supreme Court Says Corporations Can Exercise Religion,” Standard Bearer, October 1, 2014.