The First Amendment to the U.S. Constitution prohibits lawmakers from creating laws that interfere with the free exercise of religion. In a recent case, Roman Catholic Diocese of Brooklyn, NY v. Governor of New York (Nov. 25, 2020),the U.S. Supreme Court recognized the possibility that certain COVID-19 restrictions may violate the First Amendment by “impos[ing] very severe restrictions on attendance at religious services.”
In that case, the governor of New York, just like many other governors, issued state-wide COVID-19 restrictions in Executive Order 202.68. There were three sets of restrictions that corresponded to three different “zones:” a yellow zone, an orange zone, and a red zone. Yellow zones faced the least-restrictive measures, while red zones were subject to the most stringent restrictions.
Two lawsuits arose over the restrictions applicable to “houses of worship” in orange and red zones. In orange zones, the order stated that “houses of worship shall be subject to a maximum capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is fewer.” In red zones, houses of worship were “subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer.” The religious entities that brought the lawsuits argued that the restrictions “single out houses of worship for especially harsh treatment.” They requested that the court prohibit enforcement of the COVID-19 restrictions while they pursued their First Amendment claims.
In ruling in favor of the religious entities, the court pointed out that “[i]n a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as ‘essential’ may admit as many people as they wish.” The Court found it even more troubling that in an orange zone, “[w]hile attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.” The Supreme Court decided to temporarily halt enforcement of the governor’s COVID-19 restrictions, thus allowing the case to proceed at the lower court level. The Court stated that “[t]he restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.” This opinion signals that the Court believes the First Amendment challenge will eventually succeed and the order will be declared unlawful.
Following the decision in Roman Catholic Diocese of Brooklynn, the Supreme Court issued two more opinions in favor of religious groups contesting COVID-19 restrictions. In both High Plains Harvest Church v. Governor of Colorado (Dec. 15, 2020) and Reverend Kevin Robinson v. Governor of New Jersey (Dec. 15, 2020), the Supreme Court reversed a lower court’s prior ruling in favor of the State and directed the lower courts to reconsider the cases in light of the Supreme Court’s decision in Roman Catholic Diocese of Brooklynn. Cities will want to be mindful of these decisions and ensure that their attorneys have an opportunity to review any proposed COVID-19 restrictions that may impact religious institutions.