Governors and mayors are still issuing restrictions in the name of safeguarding the public, like requiring vaccine passports. But they are not shuttering houses of worship the way they did early in the pandemic.
That may be because last year, the U.S. Supreme Court erected a firewall around religious liberty. And that firewall appears to be holding.
In Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, the court schooled the executive branch: “(T)he Constitution cannot be put away and forgotten.”
The high court overturned restrictions in California, Nevada and New York that regulated worship more harshly than economic activity. For instance, Nevada capped religious services at 50 people, while casinos could operate at 50% capacity. California even encroached on in-home worship, prohibiting more than three families from worshipping in a person’s home or backyard.
Many people reflexively side with public health, for good reason. The coronavirus has yet to relinquish its grasp on society. But we cannot overlook the degree to which worship was “relegat(ed) to third-class citizenship,” as charged by the South Bay United Pentecostal Church, which twice reached the Supreme Court in challenging California’s orders.
In early 2020, South Bay simply wanted to open. California said no one could safely worship, even “in the most cavernous cathedral.” In May 2020, California allowed 100 worshipers. South Bay wanted to serve more. The church pointed out that California permitted factories and restaurants to reopen with safeguards; why couldn’t the church?
That same month, the Supreme Court narrowly sustained California’s 100-person cap on worship gatherings, citing a century-old case holding that “(o)ur Constitution principally entrusts ‘(t)he safety and the health of the people’ to the politically accountable officials of the States.”
But by February 2021, with vaccines becoming available, the court lost patience. Lacking sufficient justification, it struck the cap. “Deference, though broad, has its limits,” Chief Justice John Roberts noted.
Many ascribe the Supreme Court’s intolerance of worship restrictions in 2021 to the addition of Justice Amy Coney Barrett, but the justices were simply applying precedent.
“Singl(ing) out houses of worship for especially harsh treatment” draws strict scrutiny, the Supreme Court held in 1993. This means that the government must show a compelling interest and no less restrictive means to achieving exceedingly important ends. Yet these orders read like “edicts,” Justice Neil Gorsuch would later say, because almost no explanation was given.
California’s orders are a prime example. In press conferences about the state’s 100-person cap, Gov. Gavin Newsom cited stock CDC guidance about the need to contain the contagion given spiraling case numbers. When asked by reporters why he was applying specific and different caps on places of worship and not schools, Newsom said, “Perfect’s not on the menu.”
He did not explain what factors guided California’s categories or why “people mixing from far and wide … in an enclosed space” was a problem in church, but not in factories. The Constitution and the First Amendment were nowhere mentioned.
Two Californians sued over the restrictions on in-home worship. They challenged why they could “watch John Legend sing outdoors ... (but not) host their faith community in their backyard.”
True, worship gatherings had acted as super-spreaders early on. But so had factories, meatpacking plants and nursing homes. According to California, factories were safe because entry could be staggered. But the litigants offered to stagger the congregants’ entry and implement requirements for social distancing and masks.
Calvary Chapel in Nevada sued Gov. Steve Sisolak twice, asking to host worship services on the same terms as casinos — at 50% capacity, not just 50 people.
Gorsuch skewered the disparity: “(T)here is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
Later, the federal courts struck Nevada’s scheme as discriminatory, violating the First Amendment.
New York also violated a cardinal First Amendment rule. It created cluster zones, with the tightest restrictions in the center and looser ones moving outward. On CNN, then-Gov. Andrew Cuomo blamed the “ultra-Orthodox community” for creating clusters. Catholic schools “happen(ed) to be” in the zone, too.
In red zones, houses of worship could accommodate 10 or fewer people, yet “essential” businesses like warehouses faced no caps. In yellow zones, places of worship were capped at 50% capacity; restaurants in yellow zones at that time had no cap on the total number seated.
During litigation, the governor’s experts could cite no evidence of spread from the Orthodox community and admitted that the Brooklyn diocese was in fact taking “the necessary precautions,” just as essential businesses do.
The Supreme Court struck New York’s policy, finding that it discriminated against people of faith.
Adding insult to injury, all three states permitted places of worship to reopen only after services deemed essential, like “liquor stores and bike shops.”
These ill-constructed orders were expensive. All three states paid hundreds of thousands of dollars in attorneys’ fees. Thankfully, during this holiday season, governments have not retread these orders.
If omicron or another variant forces more restrictions, governors and mayors would do well to construct coherent policies and transparently explain them from the beginning. Asking people to forego worship, an important source of support during crisis, should only happen when governments articulate the criteria for restricting core liberties in such a way that all of us can understand the need.
Robin Fretwell Wilson holds the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law and is a Public Voices fellow with The OpEd Project.