January 20, 2021

COVID and Religion at SCOTUS


  • Over the past few months, the Supreme Court has issued several rulings relating to the applicability of coronavirus-related restrictions on religious services.
  • In its most groundbreaking case, in late November, the court blocked New York Governor Andrew Cuomo from enforcing his executive order limiting the number of attendees at religious services.
  • Since then, the court has ordered lower courts to reconsider cases involving restrictions on religious services in California, Colorado, and New Jersey.

The elevation of Justice Amy Coney Barrett to the Supreme Court flipped a crucial fifth vote in cases involving COVID-related restrictions on religious services. In May and July of last year, Chief Justice John Roberts had joined the four Democrat-appointed justices on the court to allow limits on attendance at religious services in California and Nevada. Another rule in Illinois was similarly left in place, though the court did not announce how the justices voted.

Coronavirus-Related Religion Restrictions, Before and After Barrett


After Justice Ruth Bader Ginsburg passed away and President Trump appointed Justice Barrett to replace her, the court has handled more emergency requests by religious organizations seeking the overturning of coronavirus-related restrictions. In all but one of these cases, the court either directly blocked the restriction or directed the lower court to reconsider the case in light of a major new ruling in a November case from New York. In the one other case, the court left the restriction in place because it was due to expire imminently, and the court noted that if it was reissued, the plaintiffs could return to court.

The major coronavirus-related cases have played out on the court’s “shadow docket”− cases where the court issues or declines to issue orders without full oral arguments or long opinions, sometimes on an emergency basis. These cases often lack any explanation on the decision. While they frequently remain obscure, these cases can resolve major issues, at least temporarily.

The Pre-Barrett Cases

The earliest Supreme Court cases on coronavirus-related restrictions and religion came from California and Illinois. On April 28, California Governor Gavin Newsom issued an order placing churches in the third stage of the state’s reopening plan, along with movie theaters, nail salons, and concert venues. The restrictions then in place limited church attendance to the lower of 100 attendees or 25% of capacity. The Illinois case involved a similar restriction, limiting religious service attendance to 10 people.

Churches sued in both states, alleging that the restrictions violated the First Amendment’s free exercise of religion clause and noting a particular burden because the rules limited attendance for Pentecost celebrations.

The states argued that their restrictions on religious activity did not differ from substantially similar secular activity, like gatherings at schools, theaters, and concert halls. Though the rules allowed more than 10 people in places like grocery stores, the states claimed that those establishments did not present the same danger because religious gatherings involve talking and singing.

The Supreme Court denied the request for an injunction in the Illinois case, citing the fact that a new executive order had been issued the previous day. The court split 5-4 on the California case, with Chief Justice Roberts writing a concurrence that noted the discretion courts typically grant state governments in cases involving pandemic-related restrictions. Justice Kavanaugh, joined by Justices Thomas and Gorsuch, wrote a dissent arguing that because comparable secular businesses were not subject to the occupancy cap, including restaurants and offices, the restriction on religious services violated the free exercise clause.

On July 24, the court denied, 5-4, an application from Calvary Chapel Dayton Valley for an injunction against Nevada’s restriction of religious services to no more than 50 people. The plaintiffs complained that some secular businesses, such as casinos, were subject to less restrictive rules. Justice Alito wrote the primary dissent, saying: “The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance.”

Roman Catholic Diocese and its Repercussions

The elevation of Justice Barrett in October effectively flipped the five-vote majority in these cases. Just a month later, the court issued its most notable decision in the case Roman Catholic Diocese of Brooklyn v. Cuomo. A 5-4 majority granted an injunction against New York’s numerical restrictions on attendance of religious services, which limited services to either 10 or 25 people depending on which part of the state the service was being held. At the same time, the court decided another case involving the New York limitations, this one brought by a synagogue.

The court reasoned that the restriction on religious services was explicitly targeted against religious services, not a neutral rule of general applicability. Such rules must satisfy “strict scrutiny,” meaning they must be narrowly tailored and serve a compelling state interest. The court held that the rule was not narrowly tailored because maximum attendance at the service was not tied to the size of the place of worship.

In the wake of Roman Catholic Diocese, the court ordered lower courts to reevaluate challenges to limits for church attendance in Colorado, New Jersey, and California. The 9th U.S. Circuit Court of Appeals cited Roman Catholic Diocese when it ruled against Nevada’s restrictions on attendance at religious services.

The one exception to the recent trend of successful Supreme Court challenges to coronavirus-related restrictions on religious institutions came in Danville Christian Academy v. Beshear. In that case, the governor of Kentucky had ordered closure of all schools, including religious schools. The court allowed that order to continue, apparently because it was due to expire imminently, and noted the possibility that the school could return to court if Kentucky issued a new school-closure order. Two weeks later, the 6th Circuit struck down an Ohio shutdown of religious schools consistent with the Supreme Court’s judgment in the Kentucky case. 

Issue Tags: Judiciary, COVID-19