Where Religious Freedom and Pandemic Restrictions Meet: First Amendment Challenges at the Supreme Court

The past year has altered nearly all aspects of normal life in the name of protecting individuals against COVID-19. Scientific evidence has concluded that practices such as restricting the size of gatherings are successful at curbing the spread of the virus, and governments have implemented policy accordingly. Though these measures are seen by officials and the public alike as being absolutely necessary, throughout the course of the pandemic, there have been several legal challenges, particularly by religious groups, to the restrictions imposed by state governments. Churches and synagogues have opposed capacity limits, bans on indoor worship, and even mask mandates when they pertain to religious chanting and singing. Though they are not by any means scientists, the Supreme Court has issued rulings on a large number of these cases, becoming powerful arbiters and adversaries of public health policy at a time when trust in scientific evidence is already vulnerable. 

Using the Free Exercise Clause of the First Amendment, which prevents Congress from infringing on the free exercise of religion, SCOTUS has given “relief” to religious institutions under COVID restrictions in New York, New Jersey, Colorado, and California, and set precedent for cases all over the country. Not only did this feel irresponsible, considering the reasons these restrictions were enacted in the first place, these rulings often seemed arbitrary, with each Justice deciding for him or herself which restrictions felt like a violation of the Free Exercise Clause, without any real consensus. Though pandemic guidance on a federal level is generally desirable, the messy handling of religion-related cases calls into question whether the Court should have even passed judgment on this issue at all.

The decision that set the precedent for these types of cases was Roman Catholic Diocese of Brooklyn, New York v. Cuomo. In late 2020, Governor Cuomo, in an effort to control rising COVID cases in NYC, issued a set of restrictions on gatherings in certain neighborhoods that had high positive test rates, designating them “orange” or “red” zones depending on the severity of the caseload. A facet of the restrictions was the limitation of religious gatherings to 10 people in red zones and 25 in orange ones. The Roman Catholic Diocese of Brooklyn and Agudath Israel of America both claimed that these restrictions targeted religious gatherings and therefore violated the Free Exercise Clause of the First Amendment. In a bitter 5-4 decision, the Supreme Court agreed. The majority opinion and concurrences give several reasons behind their decision; they argue that houses of worship were targeted for especially harsh treatment because they were specifically limited in their capacity while other essential businesses could admit people as they pleased. They ridicule the standard for labeling businesses as “essential,” noting that among the list were acupuncture facilities, campgrounds, and garages. If these businesses could freely admit people without restriction, the majority argues, then certainly churches and synagogues should be able to do the same. This comparison of businesses exemplified the Governor’s preferential treatment of non-religious businesses, therefore insinuating a violation of the Free Exercise Clause. The opinion also notes that there were no COVID outbreaks among the Diocese before the restrictions were put in place, so therefore there is little evidence to suggest that the restrictions were a necessary measure. Justice Gorsuch’s concurrence even suggests that because the pandemic is taking so long to subside, businesses cannot continue to defer to public health restrictions that could get in the way of the Constitution.

There are several issues with the majority’s decision and their justification behind it. Apart from the dubious reasoning that no past outbreaks mean there will be no future ones, and that the longer the pandemic lasts, the fewer restrictions should be put in place, the dissents astutely mention that because religious gatherings are allowed to take place at all, they are actually treated more favorably than comparable gatherings such as public lectures, concerts, and theatrical performances. The majority makes a false comparison when it notes the lack of capacity limits on a campground as proof that religious institutions are treated less sympathetically. But the dissents also say firmly that it doesn’t make sense for the Court to decide what an essential business is or what businesses should be subject to a certain type of restriction.

This is the root of the issue: why are the Supreme Court Justices acting as adjudicators of public health policy at all? In Justice Breyer’s dissent, he notes that relevant precedent suggests that the Court must give governments broad discretion when dealing with issues “fraught with medical and scientific uncertainties.” The COVID-19 pandemic clearly falls under that umbrella, making it exceedingly difficult to justify the Court’s deep involvement in the issue. 

This opinion did not exist in isolation. The precedent it set caused a significant ripple effect for cases in several states. The ruling was used three times in three weeks to toss out lower court rulings about religious restrictions. One case was in Colorado, where a federal district court denied a request by a church to ban capacity limits on religious institutions. SCOTUS discarded this ruling. A similar case arose in New Jersey, where a church opposed capacity limits, and lower courts were obligated to re-review the case in light of Roman Catholic Diocese. Nevada lifted restrictions on religious gatherings in the wake of the ruling, without having SCOTUS weigh in at all. A Kentucky case sought relief for religious schools, arguing that remote-school mandates violated the Free Exercise Clause. Though SCOTUS denied this case review, they clarified that it was only because the restrictions on schooling had already been lifted. If the restrictions returned, however, they would consider reviewing the case, insinuating that they were open to this kind of religious exemption. 

But perhaps the most perplexing opinion by the Court was released in February of 2021, in South Bay United Pentecostal Church v. Newsom. In a deeply confusing case, South Bay granted some relief to California churches, but not the relief the churches specifically requested in their application. Seemingly arbitrarily, the justices cherry-picked which restrictions they individually felt were in violation of the Free Exercise Clause. Justices Thomas and Gorsuch would have granted all forms of relief, while Alito, Kavanaugh, Barrett, and Roberts would have each allowed varying levels. The liberal wing of Justices - Kagen, Breyer, and Sotomayor - would not have granted any relief, not because they didn’t believe the churches deserved it, but because, as Kagen put it in her dissent, “The Court’s decision leaves state policymakers adrift, in California and elsewhere. It is difficult enough in a predictable legal environment to craft COVID policies that keep communities safe. That task becomes harder still when officials must guess which restrictions this Court will choose to strike down.”

The dissents in these cases may seem like a shunning of religious institutions, an indication that the many churches and synagogues who felt that their rights had been violated had no merit to their cases. However, the true issue raised by the dissenting voices is this: the Supreme Court should not be ruling on public health restrictions enacted at the behest of science. Whether the restrictions violated the First Amendment or not, the Court’s rulings lack consensus or clear precedent on which regulations are enough of a violation to be upended - because it isn’t their job to create health policy. With each opinion, the Court has complicated an already delicate situation, creating confusion for lawmakers and undermining scientific evidence.

Nadira Novruzov is a recent graduate of the Bard High School Early College in Manhattan, where she graduated with her Associate’s degree in addition to her high school diploma. She is currently on a gap year and will attend Yale University in the fall of 2021. She writes about Congress and the Supreme Court for NGP and has been tutoring, playing music, and learning German during her gap year.