SCOTUS Blocks New York’s COVID-19 Limits on Houses of Worship. California is Next for SCOTUS with Harvest Rock Church v. Newsom.
In a 5-4 decision just before midnight on Thanksgiving Eve, the newly configured U.S. Supreme Court issued its ruling in Roman Catholic Diocese v. Cuomo which stays the enforcement of Governor Cuomo’s health and safety restrictions on indoor worship services in the State of New York that capped attendance at 10 or 25 persons in designated geographic zones. In short, the ruling now sets a higher bar in order for pandemic-related restrictions on worship services to survive constitutional First Amendment analysis.
Will California’s COVID-19 Limits on Religious Services Survive SCOTUS Review?
The Court’s ruling in Roman Catholic Diocese is a significant departure from the Court’s prior ruling in the South Bay United Pentecostal Church case where SCOTUS rejected a request to stay California’s restrictions on in-person worship services. While the limitations imposed by Governor Cuomo were much more restrictive than those imposed by Governor Newsom, this new decision clearly signals a less deferential attitude now that Justice Barrett has filled the late Justice Ginsburg’s seat leading to a new conservative Court configuration, and there can be little doubt that challenges to California’s restrictions will now be analyzed anew. It looks like we might not have to wait too long for this question to be answered because Pasadena-based Harvest Rock Church and its member churches recently filed with the U.S. Supreme Court an emergency request to stay enforcement of Governor Newsom’s restrictions on California’s indoor worship services. The SCOTUS decision in Roman Catholic Diocese can be found here and the Harvest Rock Church emergency application for injunctive relief can be found here.
Takeaway No. 1 in Roman Catholic Diocese Ruling – Traditional Constitutional Analysis
In its opinion issued on November 25, 2020, the Supreme Court enjoined New York from enforcing its 10- or 25-person occupancy limits on indoor worship services, finding that the Roman Catholic Diocese and the separate Orthodox Jewish petitioners – Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Rabbi Yisroel Reisman, and Steven Saphirstein – are likely to prevail on their First Amendment challenges to the limitations placed on their religious practices. The Court’s decision looks to the traditional constitutional rubric for analyzing cases regarding religious freedom, citing Church of Lukumi v. Hialeah for the position that New York’s regulations are unlikely to pass constitutional muster because the regulations are not neutral laws of general application. Instead, the Court found the regulations single out houses of worship for especially harsh treatment. The per curiam decision did not go so far as to disavow the deferential standard of review set forth in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), for emergency health situations such as a pandemic, but its silence on this point and its reliance on Lukumi would appear to signify that the more lenient rational basis standard of Jacobson does not apply, at least when a First Amendment right is impacted.
Takeaway No. 2 in Roman Catholic Diocese Ruling – Comparable Secular Facilities
Another key aspect of the Court’s decision is the comparable secular facilities which the Court uses to adjudge the constitutionality of the restrictions on worship services. The Court’s per curiam opinion reasoned that businesses classified as essential such as liquor stores, big box retail, bike shops, grocery stores, acupuncture facilities, camp grounds, and some non-essential businesses such as certain manufacturing plants and transportation facilities are relevant comparators for worship services. Because these activities are allowed to operate without capacity limits, the harsher restrictions on worship services are neither neutral, nor of general application, and instead show a disparate treatment of religious activity. This is significant because courts that have upheld restrictions on indoor worship services have found that these essential service activities are not the correct comparators for worship services but instead have looked to secular communal gatherings such as concerts and theatrical performances. This highlights, once again, that the comparators a court uses when analyzing these restrictions are likely to be determinative as to the outcome of the case.
Takeaway No. 3 in Roman Catholic Diocese Ruling – Robust Factual Record
This case also highlights the impact that a developed factual record is likely to have on the final outcome. The Roman Catholic Diocese had developed a robust factual record showing that it follows stringent health and safety measures and affirmatively claimed no incidences of COVID transmission. The church’s factual record detailed the Diocese’s rigorous protocols including having commissioned its own in-house COVID task force, enforcing CDC recommended guidelines including masks and social distancing, and going beyond the State’s safety protocols. As a practical pointer, this highlights the need to link restrictions on worship services to real world concerns and the need to offer empirical evidence that less restrictive safety protocols will not work and/or that a religious institution will not follow other safety protocols (such as mask wearing and social distancing). Now that we are more than eight months into the pandemic, it is fair to anticipate that the courts will require more closely tailored restrictions especially when First Amendment interests are at play.
What’s Next for California?
Coming on the heels of its decision in Roman Catholic Diocese, the Supreme Court is now also being asked in Harvest Rock Church v. Newsom to issue an emergency injunction staying the enforcement of California’s restrictions on indoor worship services. Once again, the church applicant asks the Court to find that Jacobson is not the correct standard and that under traditional constitutional analysis religious institutions are being disfavored because, among other reasons, essential services such as grocery and big box shopping are treated more favorably. The Harvest Rock Church petition also claims that Governor Newsom disregards his own enacted restrictions for favored secular activity such as joining his friends for a birthday celebration at the French Laundry restaurant and encouraging the George Floyd/BLM protests.
The Meyers Nave Shelter in Place litigation team is closely monitoring the Harvest Rock Church case and its potential to upend the current restrictions on in-person worship services in California. We will continue to provide Client Alert updates as the legal landscape unfolds.