Supreme Court Clarifies Constitutional Protections on Religious Gatherings

| February 28, 2021


In the late hours of February 5, 2021, the United States Supreme Court issued a ruling in South Bay United Pentecostal Church v. Gavin, that has further clarified the law concerning the authority of State and local governments to restrict religious gatherings.  Churches, synagogues and mosques throughout the United States have seen the imposition of State restrictions on their gatherings in the face of the COVID-19 health crisis.  Executive actions by governors nationally restricted the right of religious assemblies to meet. Several lawsuits were filed claiming that such orders were a violation of the constitutional right to freedom of religion.   As a result, there is now a body of constitutional law, headed by the first cases to reach the United States Supreme Court, which are Calvary Chapel Dayton Valley v. Sisolak  (from Nevada), Roman Catholic Diocese of Brooklyn, New York v. Cuomo (from New York), and now South Bay United Pentecostal Church v. Gavin (from California).

The Restrictions Imposed

Roman Catholic Diocese v. Cuomo concerned an Executive Order issued by Andrew Cuomo, Governor of New York, which designated different zones by color – red, orange, and yellow.  Among other things, the restrictions in these zones limited the number of persons who can gather in a religious service, to the lesser of 10 people or 25% maximum capacity in red zones, 25 people or 33% capacity in orange zones, and 50% capacity in yellow zones.   The Roman Catholic Diocese of Brooklyn and Agudath Israel of America brought suit claiming that the 10 or 25 person limits in red and orange zones were too strict, to the point where they violated the First Amendment’s protection of the free exercise of religion.

South Bay United Pentecostal Church v. Gavin concerned a California restriction that prohibited all religious services indoors and all singing or chanting at religious services.  The suit was brought by South Bay United Pentecostal church that challenged both parts of the ordinance.

In both cases, the churches sought an injunction against the enforcement of the executive action.

The Court’s Decisions

The Supreme Court issued the injunctions in both cases concerning the restriction on the number of people who can gather for religious services, and the prohibition against indoor services. It denied the injunction and upheld the ban on singing and chanting during the services.  In so doing, it clarified the law on governmental restrictions on religious gatherings, making subtle but important change in its analysis.   The Court has clearly divided into three (3) groups: Justices Thomas, Alito, and Gorsuch would have granted the injunctions on all restrictions; Justices Breyer, Sotomayor, and Kagan would have denied the injunctions and upheld the restrictions, and  Chief Justice Roberts with Justices Kavanaugh and Barrett are holding the middle and controlling ground.

All the cases to reach the Supreme Court arose in the context of a church applying for a preliminary injunction, meaning that the Court did not judge the matter on a fully developed record of the merits.

Four Clear Principles

Four clear principles have emerged from these cases on which all nine justices agree:

  1. First, the constitutional right to freedom of religion is not suspended during a national emergency. This is agreed by all, and stated clearly in the majority opinion in Roman Catholic Diocese of Brooklyn, New York v. Cuomo: “Government is not free to disregard the First Amendment in times of crisis.”  “The loss of this First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Further, the option to attend religious services remotely is not a legal substitute for the right to gather in person because “such remote viewing is not the same as personal attendance.”  The Court noted that Catholics cannot receive communion remotely and that important traditions in the Jewish faith require personal attendance.
  2. State and local governments may regulate accessibility to facilities that house or host religious services if there is a compelling State interest. Church buildings are subject to fire codes, occupancy limitations, parking requirements, building inspections, and other restrictions of public safety and welfare.  Temporary restrictions for the purpose of public safety are not unconstitutional per se.  It was important to the majority to note that churches and synagogues seeking the injunction were already taking precautions that included mandated wearing of masks, social distancing, increased ventilation, forgoing singing, and disinfecting spaces for worship between services.
  3. Greater latitude is allowed to elected officials in times of emergency and enhanced danger.  This theme runs through all three of the Supreme Court decisions: “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.”  The “safety and the health of the people” is entrusted to the politically accountable officials of the States “to guard and protect.”  “Members of this Court are not public health experts, and we should respect the judgement of those with special expertise and responsibility in this area.” When those officials “undertake to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.”
  4. All such restrictions on religious gatherings must be “laws of general applicability.” It is the application of this principle on which the case turned, and where the Court made a change from prior law.   Everyone agreed that the law cannot disfavor religion as opposed to other activities.  The Supreme Court’s prior rulings held that this principle is satisfied if churches, synagogues, and mosques are subject to laws that are no more restrictive than “similar gatherings with comparable risks, such as public lectures, concerts, or theatrical performances.” This was the historical position and the primary argument of Justices Breyer, Sotomayor, and Kagan.

But the majority on the Supreme Court now sees it differently.  Governor’s Cuomo and Gavin’s Executive Order had created a class of “essential” businesses on which they imposed no capacity restrictions.  These included grocery stores, hardware stores, medical facilities, and liquor stores.  The majority essentially held that the test for “laws of general applicability” is not to compare churches with “similar gatherings” but with any public place.  Justice Gorsuch was very outspoken on this matter:

People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.

Justice Roberts agrees generally with the analysis, but gives greater deference to the elected branches of government in the times of crisis, but that deference is not unlimited — there must be a clear and rational basis for the restrictions that is specific to the concern in order to restrict a religious gathering.  He wrote in the California case: “The State’s present determination – that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero – appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.” He concluded that “the Constitution principally entrusts the safety and health of the people to the politically accountable officials of the States…. But the Constitution also entrusts the protection of the people’s rights to the Judiciary. Deference, though broad, has its limits.”

These cases will now become the leading decisions on questions of religious gatherings, giving much clearer guidance to Federal and state courts that consider the constitutional issues, and to further define the limits of that judicial deference. .

Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.