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Draft:COVID-19 religion cases in the U.S. Supreme Court

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During the COVID-19 pandemic, the Supreme Court of the United States considered a series of emergency requests to allow in-person gatherings for religious purposes under the Free Exercise Clause despite restrictions on gathering imposed by state governments. Initially, a narrow majority denied these requests, starting with South Bay United Pentecostal Church v. Newsom I in May 2020, but after the appointment of Amy Coney Barrett to the court, a majority began granting requested injunctions, starting with Roman Catholic Diocese of Brooklyn v. Cuomo in November 2020.

Under the prevailing framework for religious-liberty challenges since the 1990 decision Employment Division v. Smith, laws burdening religious exercise did not need to provide exemptions so long as they were neutral and generally applicable. However, in the COVID cases, the court narrowed Smith, and, most explicitly in the Tandon v. Newsom decision in February 2021, adopted a novel "most favored nation" approach, under which religious exemptions must be granted if any comparable secular activity receives an exemption, unless there is a compelling reason to deny the exemption.

Background

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Over the course of the pandemic, the Supreme Court decided five main free-exercise challenges to restrictions on public gatherings:[1]

  1. South Bay United Pentecostal Church v. Newsom I
  2. Calvary Chapel Dayton Valley v. Sisolak
  3. Roman Catholic Diocese of Brooklyn v. Cuomo
  4. South Bay United Pentecostal Church v. Newsom II
  5. Tandon v. Newsom

These cases touched upon main two issues: how much leeway does the government have to restrict civil liberties during a pandemic, and when must government grant religious exemptions to a law.

Public health measures in a pandemic

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At the beginning of the COVID-19 pandemic, the Supreme Court had last addressed the government power during a pandemic in Jacobson v. Massachusetts (1905).[2] Jacobson was most often understood taken to mean that the government has broad leeway to restrain individual rights during a pandemic for public safety.[3] However, Jacobson predated tiered scrutiny,[4] under which an infringement of a fundamental right is subject to strict scrutiny, whereas more commonplace restrictions on individual liberty receive only rational basis review,[5] leaving disagreement about whether Jacobson reflected current law.[4]

Free exercise of religion

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Before the COVID-19 cases, the primary framework of free-exercise doctrine was set out by a pair of decisions in the 1990s: Employment Division v. Smith (1990) and Church of Lukumi Babalu Aye v. City of Hialeah (1993).[6] Until Smith, the denial of a religious exemption had been subject to strict scrutiny whenever a law substantially burdened free exercise of religion.[7] Smith made it much harder to seek a religious exemption in federal court by holding that no exemption is required so long as a law is "neutral" and "generally applicable".[8] Lukumi exemplified the flipside – a law which was not neutral toward religion, and therefore was still subject to strict scrutiny.[7] In that case, the court unanimously held that an city ordinance banning animal sacrifice unconstitutionally discriminated against religion because the city made exceptions for many secular purposes, such as killing animals for consumption (food and clothing), sport (hunting and fishing), and euthanasia.[7]

Two strands of pushback to Smith have taken place since the decision. First, critics of Smith have tried to overturn the decision and restore to the earlier strict-scrutiny regime.[9] Congress codified the pre-Smith standard with the bipartisan Religious Freedom Restoration Act of 1993,[10] which passed in the Senate by a vote of 97–3. However, the Supreme Court partially struck the law down in City of Boerne v. Flores (1997), holding that Congress could not require state and local governments to give religious exemptions under the pre-Smith strict-scrutiny approach.[11]

Second, some have interpreted Smith narrowly by taking even a single secular exemption as making a law not "generally applicable" such that the denial of a religious exemption would be discriminatory.[12] One prominent example was Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark (3d Cir. 1999), a decision written by Samuel Alito before he joined the Supreme Court, which held that two Muslim police officers could not be required to shave their beards as part of an officer uniform policy because there was an exception for medical reasons (namely, for pseudofolliculitis barbae).[12] This view, known as the "most favored nation" approach,[13] was ultimately adopted by a majority of the court in the COVID cases, most explicitly in Tandon v. Newsom (2021).[14]

South Bay I

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South Bay United Pentecostal Church v. Newsom
Supreme Court of the United States
Decided May 29, 2020
Full case nameSouth Bay United Pentecostal Church, et al. v. Gavin Newsom, Governor of California, et al.
Docket no.19A1044
Citations590 U.S. ___ (more)
140 S. Ct. 1613
Holding
The application for injunctive relief presented to Justice Kagan and by her referred to the Court is denied.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Neil Gorsuch · Brett Kavanaugh
Case opinions
MajorityOrder (without opinion)
ConcurrenceRoberts
DissentAlito (without opinion)
DissentKavanaugh, joined by Thomas, Gorsuch

South Bay United Pentecostal Church v. Newsom, 590 U.S. ___ (2020), commonly called South Bay I, was the first decision of the U.S. Supreme Court addressing religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic.[15] The case was a challenge to California's restrictions that, as of May 2020, limited indoor religious gatherings to the lesser of 100 people or 25% of a building's capacity.[16] This was challenged by a church with a capacity of 600 people that usually had 200–300 in attendance.[16] The district court refused to issue a temporary restraining order and the a panel of the Ninth Circuit Court of Appeals likewise declined to enjoin the provision by a vote of 2–1.[16]

It is customary for the Court not to issue a majority opinion in its non-merits decisions (also called the "shadow docket"), including decisions as to injunctions. However, this can lead to a lack of clarity as to why the Court is deciding a certain way, which may be particularly problematic in prominent cases. Accordingly, some members of the majority sometimes write a separate concurrence to state the reasons for their decision, which may or may not be the same reasons why other members of the majority decided as they did.[17]

Concurrence

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Chief Justice Roberts wrote a separate concurrence explaining his vote. Citing Jacobson, he emphasized the importance of deference to public health officials during a pandemic:

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. Our Constitution principally entrusts "[t]he safety and the health of the people" to the politically accountable officials of the States "to guard and protect." Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When those officials "undertake[] to act in areas fraught with medical and scientific uncertainties," their latitude "must be especially broad." Marshall v. United States, 414 U.S. 417, 427 (1974).[18]

Chief Justice Roberts's concurrence was influential in lower courts. Roberts was the only member of the majority who issued an opinion. He was considered the middle "swing vote" between 2018 and 2020.

He noted that there was no known cure or vaccine and that people could be infected yet asymptomatic and unwittingly infect others. Procedurally, he also said that it would be appropriate for the Supreme Court to issue an injunction only if the basis for relief were "indisputably clear".[19]

Roberts's concurring opinion was extremely influential in the months after South Bay I was issued, until the Court shifted its approach in Roman Catholic Diocese of Brooklyn.[20] Roberts was the apparent decisive vote for upholding the restrictions at issue and was the only member of the majority to issue an opinion in the case.[21]

Dissent

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Justice Kavanaugh wrote a short opinion for three of the four dissenters in South Bay I, whereas Justice Alito noted his dissent without an opinion (as is more common for dissents from emergency orders).

Justice Kavanaugh argued that California's pandemic restrictions explicitly considered religious status (rather than being neutral with respect to religion) and that religious activities were treated worse than comparable secular activities. Accordingly, he applied strict scrutiny and concluded that Governor Newsom had not shown a compelling justification for distinguishing religious activities from certain secular activities.

Calvary Chapel Dayton Valley v. Sisolak

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Calvary Chapel Dayton Valley v. Sisolak
Decided July 24, 2020
Full case nameCalvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada
Docket no.19A1070
Citations591 U.S. ___ (more)
140 S. Ct. 2603
Holding
The application for injunctive relief presented to Justice Kagan and by her referred to the Court is denied.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Neil Gorsuch · Brett Kavanaugh
Case opinions
MajorityOrder (without opinion)
DissentAlito, joined by Thomas, Kavanaugh
DissentGorsuch
DissentKavanaugh

Calvary Chapel Dayton Valley v. Sisolak, 519 U.S. ___ (2020), a challenge to Nevada's restrictions on indoor gatherings, which exempted casinos but not churches, was the second decision of the U.S. Supreme Court addressing religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic.[22] Church services were subject to a limit of 50 persons, whereas businesses like casinos, bowling alleys, restaurants, gyms, and pools could open at the more lax limit of 50% capacity.[23] The lower courts declined to block the restriction, at which point Calvary Chapel requested an injunction from the U.S. Supreme Court.[24] Again by a 5–4 vote, the Supreme Court denied the request.[24]

Dissents

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Justice Alito wrote a dissenting opinion, joined by Thomas and Kavanaugh, saying that the Nevada order "blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause" based on a comparison of the restrictions on churches with those on comparable secular activities.[25]

Justice Gorsuch wrote a short, one-paragraph dissent, calling it a "simple case"[26] and saying that "there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel".[24]

Justice Kavanaugh wrote an influential dissent in Calvary Chapel that argued that, when any secular activities receive exemptions, religious activities must generally get those same exemptions, unless sufficient justification can be given for withholding it. This approach, which was later adopted by a majority of the court in Tandon, has been called the "most favored nation" approach,[13] a phrase that Kavanaugh quoted in a parenthetical in his dissent.[27]

Roman Catholic Diocese of Brooklyn v. Cuomo

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Roman Catholic Diocese of Brooklyn v. Cuomo
Decided November 25, 2020
Full case nameRoman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York
Docket no.20A87
Citations592 U.S. 14 (more)
141 S. Ct. 63
Holding
Respondent is enjoined from enforcing Executive Order 202.68's 10- and 25-person occupancy limits on religious services during the COVID-19 pandemic, pending appeal.

Applicants have shown they are likely to prevail on their claims by showing that those limits are not neutral as to religion and do not survive strict scrutiny.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch
Brett Kavanaugh · Amy Coney Barrett
Case opinions
Per curiam
ConcurrenceGorsuch
ConcurrenceKavanaugh
DissentRoberts
DissentBreyer, joined by Sotomayor, Kagan
Chief Justice Roberts administers the judicial oath to newly confirmed Justice Amy Coney Barrett. Her husband, Jesse M. Barrett, holds the Bible while they stand socially distanced from Roberts.

Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020), was the third major decision of the U.S. Supreme Court on religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic and the first after the appointment of Amy Coney Barrett to the court. Barrett voted to grant the injunction requested by the Diocese of Brooklyn and Agudath Israel of America, her first publicly known vote after joining the court.[28] With her vote, the previous four dissenters became a majority, and the Court decided by a 5–4 vote to grant an injunction against some of New York's COVID-19 restrictions as applied to places of worship.

The challenged restrictions divided New York into zones based on infection rates.[29] The two most restricted zones (red and orange) had limits on places of worship of 10 people or 25 people, respectively.[30] Businesses categorized as "essential" could open without limit.[31] The Diocese and Agudah challenged these two limits as applied to their religious worship.[32]

The majority issued an unsigned per curiam opinion explaining the reasons for its injunction.[33] The per curiam concluded that the challengers had a high likelihood of success because the restrictions had not satisfied "the minimum requirement of neutrality" as to religion.[33] It noted that the definition of "essential" businesses included things like "acupuncture facilities, camp grounds, garages, [...] all plants manufacturing chemicals and microelectronics and all transportation facilities" and that in orange zones even non-essential businesses could choose how many people to allow.[33] Accordingly, the court applied strict scrutiny rather than rational basis review.[33] While acknowledging that preventing the spread of COVID-19 was a compelling government interest, the court concluded that the restrictions were not narrowly tailored to advance that interest: "It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows."[34]

Subsequently, the Supreme Court issued grant, vacate, remand orders in Harvest Rock Church, Inc. v. Newsom,[35] High Plains Harvest Church v. Polis,[36] and Robinson v. Murphy[37] for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo.[38]

Concurrences

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Justice Gorsuch wrote a concurring opinion. Concluding that Governor Cuomo's order discriminated against religion, he harshly criticized[39] some of the categories of businesses that were exempted as "essential", such as "hardware stores, acupuncturists, and liquor stores", while places of worship were not exempt:

So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?[40]

He also said that Jacobson did not require a more deferential standard of judicial review during an emergency but rather applied normal standards.[41] Jacobson "essentially applied rational basis review", Gorsuch said, which "is the test this Court normally applies to Fourteenth Amendment challenges [that] do not involve suspect classifications [...] or a claim of fundamental rights". Jacobson involved a claim of a "right to bodily integrity" not explicitly stated in the Constitution, which Gorsuch contrasted with "the textually explicit right to religious exercise".[41] He also contrasted the small fine in Jacobson from "ban[ning] all traditional worship in affected 'zones'".[41]

Justice Kavanaugh also wrote a concurring opinion, which noted that an emergency like the COVID-19 pandemic requires federal courts to give "substantial deference to state and local authorities" but that this "does not mean wholesale judicial abdication".[41]

Dissents

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Chief Justice Roberts wrote a dissenting opinion saying that the injunction should be denied because the challenged restrictions had been lifted by Governor Cuomo.[42] He reiterated his view that Jacobson calls for significant deference to "determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic."[43]

Justice Breyer wrote a dissenting opinion, joined by Sotomayor and Kagan, which said that "courts must grant elected officials broad discretion when they undertake to act in areas fraught with medical and scientific uncertainties."[41]

South Bay II

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South Bay United Pentecostal Church v. Newsom
Decided February 5, 2021
Full case nameSouth Bay United Pentecostal Church, et al. v. Gavin Newsom, Governor of California, et al.
Docket no.20A136
Citations592 U.S. ___ (more)
141 S. Ct. 716
Holding
Respondents are enjoined from enforcing the Blueprint's Tier 1 prohibition on indoor worship services against the applicants pending disposition of the petition for a writ of certiorari. The application is denied with respect to the percentage capacity limitations, and respondents are not enjoined from imposing a 25% capacity limitation on indoor worship services in Tier 1. The application is denied with respect to the prohibition on singing and chanting during indoor services.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch
Brett Kavanaugh · Amy Coney Barrett
Case opinions
MajorityOrder (without opinion)
ConcurrenceRoberts
ConcurrenceBarrett, joined by Kavanaugh
Concur/dissentGorsuch, joined by Thomas, Alito
DissentKagan, joined by Breyer, Sotomayor

South Bay United Pentecostal Church v. Newsom, 592 U.S. ___ (2021), commonly called South Bay II, was the fourth major decision of the U.S. Supreme Court addressing religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic.

The court blocked prohibitions on indoor worship but allowed attendance to be restricted to 25% of a building's capacity and allowed singing to be prohibited, provided that those restrictions were enforced neutrally with respect to religion.

Unlike the other four main COVID-19 religious assembly cases, South Bay II was not decided by a 5–4 vote. The three most conservative justices voted to grant the injunction in full, the three most liberal justices voted to deny it in full, and the middle three conservative justices voted to block complete prohibitions on indoor religious gatherings while allowing attendance to be limited to 25% of capacity and allowing singing to be prohibited.[44]

Concurrences

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Chief Justice Roberts wrote a concurring opinion. Unlike in South Bay I, Calvary Chapel, Cuomo, and later Tandon, Roberts joined the other conservative justices in blocking some restrictions. He reiterated his view from South Bay I that these COVID restrictions should be given "significant derence",[45] but rejected total bans on indoor worship:

The State has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework. At the same time, 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.[46]

Justice Barrett wrote a concurring opinion – her first written opinion since joining the Supreme Court – which was joined by Kavanaugh.[47]

Dissent

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Justice Kagan wrote a dissenting opinion, joined by Breyer and Sotomayor.

[California]'s policies treat worship just as favorably as secular activities (including political assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court's injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.[48]

Gateway City Church v. Newsom

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Three weeks later, on February 26, the Supreme Court granted another injunction, this time in Gateway City Church v. Newsom.[49]

Gateway City Church and four other churches requested an injunction to block a Santa Clara County order that prohibited all indoor gatherings while allowing any other indoor activities at up to 20% of a building's capacity.[50] Santa Clara was the only county in California still not allowing gathering for worship after South Bay II blocked California's statewide prohibition.[50] The Court of Appeals for the Ninth Circuit declined to block the county's order.[50]

The Supreme Court granted an injunction in a brief order that included the following explanation: "The Ninth Circuit's failure to grant relief was erroneous. This outcome is clearly dictated by this Court's decision in South Bay United Pentecostal Church v. Newsom, 592 U.S. ___ (2021)."[51]

Justice Kagan, joined by Justices Breyer and Sotomayor, wrote a one-sentence dissent: "I dissent for the reasons set out in South Bay United Pentecostal Church v. Newsom, 592 U.S. ___ (2021) (Kagan, J., dissenting)."[52]

Tandon v. Newsom

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Tandon v. Newsom
Decided April 9, 2021
Full case nameRitesh Tandon, et al. v. Gavin Newsom, Governor of California, et al.
Docket no.20A151
Citations593 U.S. 61 (more)
141 S. Ct. 1294
Holding
The application for injunctive relief is granted pending appeal.

Government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch
Brett Kavanaugh · Amy Coney Barrett
Case opinions
Per curiam
DissentRoberts (without opinion)
DissentKagan, joined by Breyer, Sotomayor
Laws applied
Free Exercise Clause of the First Amendment

Tandon v. Newsom, 593 U.S. 61 (2021), was the last major decision of the U.S. Supreme Court addressing religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic.[1] The decision significantly transformed existing religious-liberty doctrine by adopting the "most favored nation" approach,[13] declaring that "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise."[53]

Dissents

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See also

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Notes

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  1. ^ a b Inazu at 308.
  2. ^ Vladeck at 701.
  3. ^ Hutler at 58.
  4. ^ a b Hutler at 58–59.
  5. ^ Fallon at 1293. Later on a third tier of scrutiny was added, intermediate scrutiny. Fallon at 1297–98
  6. ^ Lund at 847–49; Inazu at 313–14; Baldwin at ¶ 5.
  7. ^ a b c Lund at 847.
  8. ^ Lund at 847–48.
  9. ^ Vladeck at 705–06.
  10. ^ Vladeck at 706.
  11. ^ Vladeck at 707.
  12. ^ a b Vladeck at 708–09.
  13. ^ a b c This term alludes to the concept of a most favored nation in international trade. Professor Douglas Laycock was the first to use the phrase in this way. Lund at 850 n. 43 (citing Laycock at 49–50).
  14. ^ Lund at 857.
  15. ^ Vladeck at 710.
  16. ^ a b c Vladeck at 711; Tyler at 525.
  17. ^ Baude at ???.
  18. ^ South Bay I, 140 S. Ct. at 1613 (2020) (Roberts, C.J., concurring).
  19. ^ Tyler at 526.
  20. ^ Blackman at 645.
  21. ^ Vladeck at 713–14.
  22. ^ Vladeck at 714.
  23. ^ Inazu at 309.
  24. ^ a b c Vladeck at 715.
  25. ^ Blackman at 608.
  26. ^ Blackman at 687.
  27. ^ Oleske, Jim (April 15, 2021). "Tandon steals Fulton's thunder: The most important free exercise decision since 1990". SCOTUSblog. Retrieved June 24, 2021.
  28. ^ Vladeck at 716.
  29. ^ Inazu at 309.
  30. ^ Inazu at 309–10.
  31. ^ Inazu at 310.
  32. ^ Inazu at 310.
  33. ^ a b c d Sunstein at 224.
  34. ^ Sunstein at 225.
  35. ^ 141 S. Ct. 889 (2020) (mem.).
  36. ^ 141 S. Ct. 527 (2020) (mem.).
  37. ^ 141 S. Ct. 972 (2020) (mem.).
  38. ^ Blackman at 827–28.
  39. ^ Inazu at 319–20; Sunstein at 226.
  40. ^ Diocese of Brooklyn, 592 U.S. at 22 (Gorsuch, J., concurring); Inazu at 319–20 (quoting this paragraph); Sunstein at 226 (quoting this paragraph).
  41. ^ a b c d e Hutler at 66.
  42. ^ Hutler at 66–67.
  43. ^ Hutler at 67.
  44. ^ Blackman at 738.
  45. ^ Blackman at 737.
  46. ^ South Bay II, 141 S. Ct. at 716 (Roberts, C.J., concurring); Blackman at 737–38 (quoting this paragraph).
  47. ^ Greenhouse at 142.
  48. ^ South Bay II, 141 S. Ct. at 720 (Kagan, J., dissenting); Greenhouse at 143 (quoting this paragraph); Baldwin at ¶ 14 (quoting this paragraph).
  49. ^ Gateway City Church v. Newsom, 141 S. Ct. 1460 (2021) (mem.).
  50. ^ a b c Maggie Angst (February 26, 2021). "U.S. Supreme Court lifts Santa Clara County's ban on indoor religious services once and for all". The Mercury News.
  51. ^ Gateway, 141 S. Ct. 1460 (mem.); Angst (quoting from these sentences).
  52. ^ Gateway, 141 S. Ct. 1460 (Kagan, J., dissenting).
  53. ^ Inazu at 311.

Works cited

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Cases

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Law journals

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Other sources

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