In the wake of the initial impact of COVID-19, state governments rushed to respond to breakouts. The resulting executive orders led to widespread shutdowns that attempted to balance the reduction of contact between people and the institutions needed to sustain the population. While at first many accepted the necessary shutdowns, it didn’t take long for businesses and institutions deemed “non-essential” to begin to challenge their states’ stay-at-home orders. Chief among initial challengers were churches and religious organizations arguing that these restrictions were burdening their congregants’ First Amendment right to exercise their religion.
The battle over stay-at-home orders, for religious organizations, has been over the power of the government to restrict religious gatherings. Regardless of the content of the ordinance, religious organizations all over the United States have challenged restrictions on their ability to meet. One church in Kentucky, for example, fought against a city restriction against drive-in service meetings; a group of Jewish overnight camps have fought against city restrictions against overnight camps, claiming the order has disparate impact against Jewish overnight camps; still other churches have gone so far as to argue that any caps on religious gatherings are unconstitutional to the extent that they differ from restrictions on grocery stores and other essential businesses. The arguments and challenged orders have differed from state to state, and courts have disagreed on what activities are comparable to that of religious gatherings. Nevertheless, one consistent argument emerges from these challenges, and despite two 5-4 Supreme Court rulings on temporary injunctions (which may well change if Judge Barrett is confirmed to the Court), seem to split on how the Free Exercise Clause affects restrictions on religious gatherings.
In evaluating challenges to stay-at-home orders, this blog post will focus primarily on how federal district courts, circuit courts, and the Supreme Court, have ruled on preliminary and temporary injunctions.
The most consistent claim put forth by religious organizations is that restrictions on religious gatherings violate the Free Exercise Clause of the First Amendment, incorporated to the states through the Fourteenth Amendment. More specifically, these religious organizations claim that the restrictions placed on mass gatherings are unconstitutional as applied to religious gatherings because they are not neutral or generally applicable. They argue that the restriction cannot be neutral because it excludes similar activities/businesses, including grocery stores and other essential businesses. For example, in Antietam Battlefield KOA v. Hogan, Civil Action No. CCB-20-1130, 2020 U.S. Dist. LEXIS 88883 (D. Md. May 20, 2020), plaintiffs argued that the executive orders issued by Maryland Governor Hogan restricting religious gatherings were unconstitutional because they discriminated against religious gatherings but not against large gatherings in stores such as Lowe’s or Walmart. Similarly, in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), the plaintiffs there claimed that Kentucky Governor Beshear’s executive order discriminated against religious organizations by ordering all mass gatherings to shut down, but making exceptions for: “laundromats, accounting services, law firms, hardware stores, airlines, mining operations, funeral homes, landscaping businesses, and grocery stores.” All challenges to state restrictions on religious gatherings have contained identical arguments.
When analyzing these challenges, courts first look at whether the order is neutral and generally applicable. In Employment Div. v. Smith, 494 U.S. 879 (1990) and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court has held that Free Exercise Clause does not require the government “to exempt religious practices from valid and neutral laws of general applicability.” A law is considered neutral if it “proscribes conduct without regard to whether that conduct is religiously motivated or not.” See Antietam Battlefield KOA, 2020 U.S. Dist. LEXIS 88883, at *19-20. If a law is not neutral and generally applicable, then courts apply strict scrutiny to see whether it can be justified by a compelling interest and is narrowly tailored to advance that interest. Roberts, 958 F.3d at 413 (quoting Lukumi, 508 U.S. at 553).
Circuit Splits
As Easter approached, several religious organizations across the country filed challenges and requests for emergency injunctions seeking to enjoin orders that restricted religious gatherings. By the end of the month, a circuit split had emerged on how to handle the religious objections to stay-at-home orders. On May 9th, in Roberts v. Neace, the Sixth Circuit granted an injunction enjoining the governor of Kentucky from enforcing orders prohibiting in-person services against the Maryville Baptist Church. The order at issue prohibited any in-person meetings but made several exceptions for “life-sustaining services.” The court found that the order had too many exceptions, making it neither neutral nor generally applicable. The court also disagreed with the complete prohibition of in-person meetings, stating that “[i]f the problem is numbers, and risks that grow with greater numbers, there is a straightforward remedy: limit the number of people who can attend a service at one time.”
On May 16th, the Seventh Circuit rejected a motion for injunction pending appeal seeking to enjoin enforcement of an Illinois order limiting in-person gatherings to ten persons. In Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2020 U.S. App. LEXIS 19049 (7th Cir. May 16, 2020), the court pointed out that the order treated religious gatherings the same as similarly situated activities such as “concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods.”
On May 22nd, in First Pentecostal Church of Holly Springs v. City of Holly Springs, 959 F.3d 669 (5th Cir. 2020), the Fifth Circuit approved an injunction enjoining the city of Holly Springs from enforcing the governor’s executive orders. The court did not discuss why they were granting the injunction but stated that they did so with the understanding that the church would “satisf[y] the requirements entitling similarly situated businesses and operations to reopen.” On the same day, the Ninth Circuit rejected a similar motion in South Bay United Pentecostal Church v. Newsom, 959 F.3d 938 (9th Cir. 2020). In a short opinion, the court found that the order did not single out religious activities and therefore did not violate the First Amendment.
Supreme Court Decisions
The Supreme Court has ruled on two applications for injunctive relief sought by churches to enjoin state restrictions on religious mass gatherings due to the COVID-19 pandemic. In the first application, South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), an appeal from the Ninth Circuit case discussed above, plaintiffs argued that California’s 100-person capacity on houses of worship violated the Free Exercise Clause because it capped religious gatherings but not similarly situated activities, such as retail. The Court rejected this argument by a 5-4 vote. Chief Justice Roberts, concurring in the denial of the application, found that California’s guidelines placed “similar or more severe restrictions … to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” Justice Roberts went on to note that decisions regarding reopening are “dynamic and fact-intensive matter subject to reasonable disagreement,” and that officials’ broad latitude during crises such as the current pandemic “should not be subject to second-guessing by an unelected federal judiciary which lacks the background, competence, and expertise to assess public health.”
The Court heard another case from the Ninth Circuit concerning a similar restriction later in the summer. In Calvary Chapel Dayton Valley v. Sisolak, 2020 U.S. App. LEXIS 108804 (July 24, 2020), the Court rejected another application for injunctive relief enjoining Nevada’s restriction on religious gathering. The Supreme Court issued a short, one sentence declaration, with no concurrence explaining how it reached its decision. This lack of explanation is important to note, as the restrictions at issue in Calvary Chapel were quite distinct from the one in South Bay. First, Calvary Chapel’s restriction on houses of worship limited attendance to 50-persons in the entire building as opposed to the 100-person cap in South Bay. Furthermore, while South Bay’s order restricted what the Court saw as “similarly situated” mass gatherings, the Calvary Chapel order permitted two of those gatherings to have more than 50 people in the building. Despite those distinctions, Chief Justice Roberts was not moved to decide differently, nor did he feel the need to clarify why this more stringent and seemingly arbitrary restriction was nevertheless permissible.
While these rejections are not binding on the lower courts, see Harvest Rock Church, Inc. v. Newsom, No. 20-55907, 2020 U.S. App. LEXIS 31226, at *5 (9th Cir. Oct. 1, 2020), they provide guidance on how circuit courts and district courts should be analyzing these types of requests. The language in the Chief Justice’s concurring opinion and the majority’s silence on the differences between the California and the Nevada order seems to imply that the Court sees the executive as having very broad latitude to enact reopening plans. While many courts have adopted the Supreme Court’s leniency to restrictions, it remains unclear to what extent orders can differentiate between religious gatherings and similarly situated activities.
Surveying the current case law, it is clear that federal courts have adopted the Supreme Court’s lenient deference to restrictions. Although not binding, Chief Justice Roberts’ concurrence in South Bay seems to have persuaded most courts to leave in place orders that treat religious gatherings similarly to like activities. Orders that limit the attendance of mass gatherings (even to ten people) and treat religious gatherings like similarly situated activities will typically be upheld. The lack of explanation in Calvary Chapel, however, leaves some uncertainty as to: 1) which activities are similarly situated to religious gatherings (the dissents in both South Bay and Calvary Chapel expand the list of what they find to be similar activities); 2) to what extent states can treat religious gatherings differently; and 3) when, if ever, should religious freedom defeat the government’s power to impose restrictions during a public health emergency.
The order at issue in Calvary Chapel treated religious gatherings differently from movie theaters and gyms, yet the injunction was still denied (without explanation). At the same time, Roberts v. Neace continues to be controlling in the Sixth Circuit, empowering courts in the circuit to continue striking down executive orders when they fall short of the standard in Roberts. Since the Supreme Court’s decision in South Bay, one district court in Kentucky has done just that. See Ramsek v. Beshear, No. 3:20-cv-00036-GFVT, 2020 U.S. Dist. LEXIS 110668, at *34 (E.D. Ky. June 24, 2020) (enjoining the Kentucky Governor’s blanket-ban on mass gatherings). It remains to be seen how the remaining uncertainty will play out in other circuits.
Beshoy Shokarilla graduated from Harvard Law School in May 2022.
This post was originally published on the COVID-19 and the Law blog
