COVID-19 and Restrictions on Places of Worship 17:16, June 15, 2020

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COVID-19 and Restrictions on Places of Worship

by Christopher D. Bryan

The COVID-19 pandemic has upended nearly every aspect of daily life across Colorado and the United States, including attending religious services. Such restrictions raise an important constitutional question: May a state place restrictions on religious services without contravening the First Amendment? According to new guidance from the United States Supreme Court, the answer is yes.

In an effort to thwart the spread of COVID-19 in California, Governor Gavin Newsom issued an executive order that, among other things, restricted attendance in churches and other places of worship to 25% of building capacity or a maximum of 100 attendees.

The South Bay United Pentecostal Church asked the Supreme Court to grant injunctive relief from the order, arguing the restriction violated the First Amendment because comparable secular businesses such as offices, supermarkets, and restaurants were not subject to a 25% occupancy cap.

Concurring with a narrow 5-4 majority, Chief Justice John Roberts declined to grant injunctive relief on the grounds that such a grant requires showing the “legal rights at issue are indisputably clear,” and California’s restrictions “appear consistent with the Free Exercise Clause of the First Amendment.”

While comparable businesses were not subject to a 25% cap, Chief Justice Roberts wrote that they are distinguishable from places of worship in that “people neither congregate in large groups nor remain in close proximity for extended periods.”

To support this conclusion, Chief Justice Roberts noted that Supreme Court precedent holds that the safety and health of the people is entrusted in state officials who are politically accountable to them and that those officials must be granted wide latitude when making decisions in “areas fraught with medical and scientific uncertainties.” He further explained that, when that wide latitude is not exceeded, the unelected federal judiciary—having no knowledge or expertise in public health issues—should not second-guess state officials’ decisions.

Four members of the Court, however, disagreed with the decision to deny the church’s request. In a dissenting opinion joined by Justices Thomas and Gorsuch, Justice Kavanaugh opined that the restriction does in fact treat places of worship differently than comparable secular businesses and is therefore inconsistent with the Free Exercise Clause of the First Amendment. (Notably, and without explanation, Justice Alito declined to join the dissenting opinion but would have granted the church’s preliminary injunction application.)

Justice Kavanaugh contended that California may only discriminate against religious worship if it is “justified by a compelling governmental interest.” He wrote that, while California has an interest in combatting COVID-19, it failed to show a compelling reason for treating places of worship differently than secular businesses that also create large public gatherings.

While two factions of the Court disagreed on the question of whether Governor Newsom’s order indiscriminately treated places of worship differently than comparable secular businesses, this is likely only one of the first in a long line of cases that will force the Supreme Court, and likely many inferior courts, to determine whether efforts to combat COVID-19 should be halted in light of constitutional concerns. This is one of the earliest legal flashpoints in the COVID-19 pandemic to reach the Supreme Court, indicating that more may follow as American society grapples with balancing managing a public health crisis with constitutionally protected civil liberties and civil rights.

Christopher D. Bryan is a Shareholder at Garfield & Hecht, P.C., where he is the chair of the Litigation Department. His practice focuses on commercial and real estate litigation, including land use and other matters concerning governmental regulations. He tries cases in federal and state district and appellate courts throughout Colorado; he has been admitted pro hac vice in numerous other jurisdictions. Mr. Bryan is a University of Chicago Law School graduate. He has been practicing law in Colorado since 2004 and was admitted to the Bar of the United States Supreme Court in 2010. Mr. Bryan can be contacted at ; (970) 925-1936. Hunter Ross, a law student at the Sturm College of Law of University of Denver and an intern at Garfield & Hecht, P.C., assisted with the research and drafting of this article.