Religious Practice, the Pandemic, and the US Supreme Court

Dr. Alexandros Kyriakidis[1]

The reversal of South Bay and Cavalry Chapel in this present case clearly demonstrates the conservative turn the Court has taken since Justice Barrett joined the Court. The opinion reflects many of the dissenting conservative arguments in the previous two cases. […] the Court’s opinion in Roman Catholic Diocese uses nearly identical arguments to the dissents of conservative Justices Alito, Thomas, Gorsuch, and Kavanaugh in South Bay and Cavalry Chapel. Notably, the reversal occurred only after Justice Barrett—another conservative Justice—joined the Court after famously liberal Justice Ginsburg’s passing. Liberal Justices are now outnumbered, and […] the Court has undoubtedly taken a more conservative turn that may have implications for precedent-setting by the Court in other cases with a far more extensive reach, such as Roe v. Wade.

Introduction

In a 5–4 vote on November 25, 2020, the Supreme Court of the United States issued its decision in Roman Catholic Diocese v. Cuomo, granting injunctive relief (pending appeal) to the Roman Catholic Diocese of Brooklyn, two synagogues, and other individuals (“applicants”) against Executive Order 202.68. The Order, issued by the Governor of New York, restricted the number of individuals allowed in houses of worship due to the COVID–19 pandemic. The issue in the case concerned the Free Exercise Clause of the First Amendment to the U.S. Constitution.

Interestingly, the decision ran contrary to previous similar SCOTUS decisions in South Bay United Pentecostal Church v. Cuomo, issued on May 29, 2020, and Calvary Chapel Dayton Valley v. Sisolak, issued on July 24, 2020, in which the SCOTUS refused to grant injunctive relief. The Roman Catholic Court’s reversal was primarily owed to the fact that, in this case, Justice Amy Coney Barrett had been sworn in to the Court, to fill the vacancy created by the passing of iconic Justice Ruth Bader Ginsburg. Justice Barrett was the third Justice nominated by the Republican U.S. President Donald Trump and confirmed by the Republican-majority U.S. Senate (after Justices Kavanaugh and Gorsuch).

Background

The impact of COVID-19 on the U.S. has been particularly harsh, with approximately 30.2 million cases and almost 550,000 deaths reported as of April 1, 2020. NY stands out, with over 1.8 million cases and close to 50,000 deaths as of the same date. On March 7, 2020, the New York Governor issued Executive Order 202, declaring a disaster emergency in the state of New York. He subsequently issued a number of additional executive orders, including Executive Order 202.68 of October 14, 2020, authorizing the New York Health Department to distinguish between ‘red’, ‘orange’, and ‘yellow’ zones across the state, depending on the “cluster-based cases of COVID-19.” In each of these zones, the following restrictions on the number of individuals allowed in houses of worship were imposed: in ‘red’ zones, maximum 25% capacity or 10 individuals (whichever is fewer); in ‘orange’ zones, maximum 33% capacity or 25 individuals (whichever is fewer); and in ‘yellow’ zones, maximum 50% capacity.

Previous Supreme Court Decisions

Before Executive Order 202 was issued (and before Justice Barrett’s appointment), the Court had rejected (via a 5–4 majority) two similar requests for injunctive relief in its decisions in South Bay and Calvary Chapel. The cases concerned analogous issues relating to executive acts by the Governors of California (South Bay)—limiting attendance in places of worship to 25% capacity or 100 individuals maximum—and of Nevada (Calvary Chapel)—limiting attendance in places of worship to 50 individuals maximum. Justices Alito, Thomas, Kavanaugh, and Gorsuch dissented in both.

Chief Justice John Roberts, concurring in the denial of injunctive relief in South Bay, argued that the restrictions imposed were in line with the Free Exercise Clause of the First Amendment, since “[s]imilar or more severe restrictions apply to comparable secular gatherings,” except for few exempt places, “in which people neither congregate in large groups nor remain in close proximity for extended periods.” The Chief Justice also argued that the latitude afforded to the executive should be “especially broad” in regard to scientific areas, outside the expertise and competence of the judiciary.

Justices Thomas, Kavanaugh, and Gorsuch, in their dissent in South Bay, argued that comparable secular businesses, such as retail stores, pharmacies, shopping malls, pet grooming shops, were not subject to the 25% quota. Thus, they argued that given that the South Bay United Pentecostal Church agreed to abide by all health and social distancing protocols (similar to those of secular businesses), it should not be treated differently. The Justices found that California had not sufficiently justified the effectiveness of singling out places of worship against their secular counterparts in fighting COVID-19 and concluded that this was discrimination based on religion.

Similar arguments were presented in the dissents in Calvary Chapel. Justices Alito, Thomas, and Kavanaugh dissenting from denial of injunctive relief, found that the restrictions imposed on places of worship in Nevada were not matched by similar restrictions in secular counterparts, particularly in the gaming industry. They contended that the directive was, on its face, discriminatory and not of “neutral and general applicability[,]” thus justifying a “strict scrutiny” test. Other corresponding secular establishments not only did not have limitations of fifty individuals but casinos, breweries, bowling alleys, etc., were also allowed to operate at 50% capacity, which “often means thousands of patrons” with much less social distancing in many instances (e.g., a close-quartered blackjack table). Comparatively, the Justices argued that Calvary Chapel, admitting 90 worshippers with all recommended social distancing and health measures implemented, posed a far lesser risk. Thus, in the test of “strict scrutiny,” the dissenting Justices found that the State “cannot claim to have a compelling interest in limiting religious gatherings[,]” and, even if it did, it did not prove that this would be more successful compared to the implementation of other protective measures.

The Calvary Chapel dissents also rejected the use of precedent by deeming irrelevant Jacobson v. Massachusetts. In Jacobson, the Court held that an emergency measure related to public health was to be upheld by courts unless it is unrelated to public health or is a clear invasion of right. According to the dissents, that case concerned compulsory smallpox vaccination challenged under substantive due process against the local ordinance; the case at hand was different because it was a case where“statewide measures of indefinite duration are challenged under the First Amendment.”. The dissenting Justices in Calvary Chapel also found reliance on South Bay inappropriate. In that case, the corresponding secular facilities, such as supermarkets, did not allow people to congregate in close proximity. But in this case, in “casinos and other facilities granted preferential treatment . . . people congregate in large groups and remain in close proximity for extended periods.”

The Supreme Court Decision

 Roman Catholic Diocese, issued per curiam, was the first of a kind with Justice Barret instead of Justice Ginsburg on the Court. The Court reversed its holdings in South Bay and Calvary Chapel and granted injunctive relief to the applicants pending appeal and (possible) petition for a writ of certiorari. The Court found that the applicants’ arguments “are likely to prevail” and that the granting of relief “would not harm the public interest.” Building on the arguments of the dissents in South Bay and Calvary Chapel, the Court argued that houses of worship are disadvantaged compared to their secular counterparts, such as essential businesses that include “acupuncture facilities, camp grounds, garages . . . ” In a ‘red zone,’ houses of worship are limited to ten individuals, while their counterparts have no restrictions at all. This demonstrated that the restrictions are not neutral and of general applicability; therefore, the restrictions must survive “strict scrutiny[.]”

The Court further contended, echoing arguments included in the dissents of South Bay and Calvary Chapel, that the restrictions imposed were “far more severe than has been shown to be required to prevent the spread of the virus.” Further, the application of other, less restrictive, measures could equally serve the “unquestionably . . . compelling [state) interest” in fighting the virus, especially in light of the fact that the places of worship of the applicants could seat between 500 and 1,000 individuals. The Court also stated that limiting the capacity of religious services in this way causes irreparable harm, as many wishing to attend religious ceremonies would be barred and unable to fully participate even with remote methods, given, for example, the need for in-person interaction during communion.

Furthermore, the majority emphasized that the State did not claim that “attendance at the applicants’ services has resulted in the spread of the disease[,]” nor did it demonstrate that “public health would be imperiled if less restrictive measures were imposed.” Finally, the Court was not convinced by Chief Justice Roberts’s dissenting argument, which proposed withholding relief—because where the applicants’ places of worship were located had already recently been reclassified to a less restrictive ‘yellow’ zones—and revisiting the issue should the areas become reclassified as ‘red’ again. Rather, the Court suggested that the applicants’ arguments are not moot and, in any case, should reclassification occur again, the duration of relevant processes could cause additional irreparable harm by, for example, barring the majority of members from religious services.

Interestingly—and while arguing that the reclassification is a “serious and difficult question” that does not need to be answered at the moment—Chief Justice Roberts, seemingly also departing from his concurring opinion in South Bay, began his dissent by suggesting that “[n]umerical capacity limits of 10 and 25 people . . . do seem unduly restrictive . . . [and may] violate the Free Exercise Clause.” He further agreed with Justice Kavanaugh that these restrictions are different from those in South Bay and Calvary Chapel. Conversely, in their dissenting opinion, Justices Breyer, Sotomayor, and Kagan—the remaining liberal justices—argued that the request for an injunction, an otherwise extraordinary measure, was uncertain to be in the public interest and, furthermore, had not met the required standard, especially in light of the scientific evidence, the rising threat of the virus, which calls “for swift government action in ever-changing circumstances,” and the broad discretion afforded to the government under these conditions.

Justices Sotomayor and Kagan, in their dissent, assumed an entirely opposite (to the Court) view, arguing that the scientific community has deemed that the way religious services are practiced, including singing and talking in an enclosed environment for large amounts of time, presents multiple risk factors for contracting COVID-19, and thus justifies restrictions. In addition, they argued that the New York restrictions were, in fact, softer than those in South Bay or Calvary Chapel, considering that some of the secular counterparts, such as movie theaters, remained opened in California and Nevada in those cases but were required to close in New York, resulting in preferential treatment of religious institutions. Moreover, the (severe) restrictions imposed in New York were only in ‘red’ and ‘orange’ areas, while the restrictions in the previous two cases applied statewide.

Conclusion

The reversal of South Bay and Cavalry Chapel in this present case clearly demonstrates the conservative turn the Court has taken since Justice Barrett joined the Court. The opinion reflects many of the dissenting conservative arguments in the previous two cases. Indeed, it is not only the reversal in the Court’s decision that is indicative of this conservative turn but also the essence and the language of the opinion itself, such as the importance the opinion assigns to the impact of missing even a few religious ceremonies and the intensely restrictive view of executive privilege against the protection of individual freedoms. These aspects demonstrate how the Court’s opinion in Roman Catholic Diocese uses nearly identical arguments to the dissents of conservative Justices Alito, Thomas, Gorsuch, and Kavanaugh in South Bay and Cavalry Chapel. Notably, the reversal occurred only after Justice Barrett—another conservative Justice—joined the Court after famously liberal Justice Ginsburg’s passing. Liberal Justices are now outnumbered, and, as evidenced by this reversal, the Court has undoubtedly taken a more conservative turn that may have implications for precedent-setting by the Court in other cases with a far more extensive reach, such as Roe v. Wade.

***Originally published on 09.04.2021 at ‘Of Note’ of the Northwestern University Law Review.