Justice Neil Gorsuch seems like a patient man, but California’s regulations on religion tested his tolerance.

“Once more, we appear to have a state playing favorites during a pandemic,” he wrote in February. California had barred in-person religious gatherings in certain areas while allowing more lucrative industries to operate, and the Supreme Court justice had words to say about the situation.

“If Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.”

Two months later, the court’s impatience turned into exasperation.

“This is the fifth time the court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise,” wrote the majority court in an April 9 ruling that called out California for putting restrictions on religious gatherings in private homes.

The Constitution beats the pandemic’s religious restrictions — again
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Perhaps many religious Americans couldn’t marshal the same legal analysis as the justices, but the sting of pandemic restrictions to them is no less real. Those accustomed to seeking strength in their house of worship found themselves not only physically separated from their peers but spiritually severed from the unique bonds that religious gatherings form. Casinos and liquor stores held open their doors while parishioners stayed home.

COVID-19 has been generally unkind to institutional religion, but if there is an upside it’s that a slew of Supreme Court precedent has put religion on a stronger legal footing than it enjoyed a year ago. The pandemic has been a boon to religious freedom.

It’s a remarkable situation, not only for the disregard many politicians have shown toward religious Americans, but for the frequency of rebuke from the high court. 

Compared to their counterparts, religious exercise cases are uncommon. It generally requires a state to put onerous restrictions on the right to worship, something which, despite culture war rhetoric, states are loath to do. Some poke at the First Amendment, like restricting taxpayer funds from renovating a church school playground, but Americans by and large enjoy robust religious liberty protections.

Then came the pandemic.

There was some logic to the restrictions, of course. Worship involves close personal contact —  sacraments, collections, singing and the like. Early outbreaks of the virus were traced back to megachurches, and some congregational leaders didn’t do religion any favors by publicly flouting health guidelines. 

Yet, that should not have diminished the constitutional ground on which religion stands and which states were too quick to disrupt. 

In New York, Gov. Andrew Cuomo imposed attendance caps for religious worship — a max of 10 people in “red” zones and 25 people in “orange” zones. The Roman Catholic Diocese of Brooklyn objected, saying it had complied with all public health guidelines and had already been limiting attendance to 25% capacity for months without an outbreak. 

The nonsense of the pandemic’s unreasonable religious restrictions
Conservative justices aren’t alone in supporting religion at the Supreme Court

The Supreme Court agreed with the diocese, suggesting New York had been overly harsh in its restrictions and that the rules unfairly singled out religion. 

“... While a synagogue or church may not admit more than 10 persons,” the court wrote in November, “businesses categorized as ‘essential’ may admit as many people as they wish.” Acupuncture and campgrounds made the list of essential businesses in New York.

The injunctive relief offered by the court didn’t oppose reasonable modifications to gathering. Indeed, limiting the spread of the virus and reducing the number of deaths in a community is a major “compelling interest” for the government, and it fulfills one side of the coin by which judges scrutinize regulations on First Amendment freedoms.

When the court wrote about California’s limits on in-person worship, for instance, it did not argue against the state limiting congregations to 25% capacity in some counties, and it left in place a ban on singing (to the disappointment of Justice Gorsuch). 

It’s the other side of the coin, that the rules be “narrowly tailored,” that tripped up politicians. Orders were too broadly crafted so as to allow states considerable latitude in bridling religious exercise. They reached for a chainsaw when a scalpel would have sufficed.

America’s unique religious response to the COVID-19 pandemic

The most recent case from California involved a mandate that limited religious gatherings inside a private home to people from up to three different households. But the state did not demonstrate that at-home worship was any more risky than gathering in a hair salon or in a private suite at a sporting event, places where more than three households were permitted.

The case against religion was lopsided — it treated faith differently than other activities in comparable situations. And as the court reiterated, a state cannot “assume the worst when people go to worship but assume the best when people go to work.”

Maybe it was the so-called fog of war that misled policymakers, but it’s also hard to overlook the possibility of simple bias. Too many leaders, it seems, did not account for the truly essential nature of religion in the emotional, mental and spiritual health of its congregants. 

The Supreme Court has made it abundantly clear that worship is essential and that protecting its parameters is equally critical. Thankfully, states now have a sharper image of how religion fits into the constitutional framework to the benefit of all Americans.