By Chloe Reichel
On February 26th, the Supreme Court of the United States issued a shadow docket decision that could foretell sweeping limitations for public health measures, both within and outside the COVID-19 pandemic context.
The Court’s ruling in the case, Gateway City Church v. Newsom, blocked a county-level ban on church services, despite the fact that the ban applied across the board to all indoor gatherings. This religious exceptionalism is emerging as a key trend in recent Supreme Court decisions, particularly those related to COVID-19 restrictions.
To better understand what these rulings might mean for public health, free exercise of religion, the future of the COVID-19 pandemic, and potential vaccine mandates, I spoke with Professor Elizabeth Sepper, an expert in religious liberty, health law, and equality at the University of Texas at Austin School of Law.
In response to the Supreme Court’s shadow docket decision in Gateway City Church v. Newsom, you tweeted that it spelled trouble for public health. Can you explain some of the reasons why?
So Santa Clara, where the case came from, had a ban on all indoor gatherings, and allowed outdoor gatherings, and also non-gatherings indoors. So there wasn’t the kind of religion-specific regulation that we had seen in other cases, where they would say, you can have religious services at 25% capacity, or you can have religious services, but you can’t sing.
Instead, it said, everyone, for any reason, can’t gather indoors, but they can gather out-of-doors. And they can come indoors for non-gathering activities. And so that allowed things like taking communion in church, going to confession, getting spiritual counseling — indoors, in churches — just as it allowed one-off indoor visits to, say, a therapist.
And so the reason it’s concerning is it suggests that you can’t regulate religious entities as you do others, even when the reason for your regulation is a seriously contagious, deadly public health disaster.
And if we’re thinking about other areas of public health, if you can’t regulate, and we’re going to second-guess public health authorities where a pandemic is involved, it seems likely that the Supreme Court will go even further, if we’re talking about something less than a pandemic.
Could talk a bit about Jacobson v. Massachusetts, the Supreme Court decision that upheld states’ authority to enforce vaccine mandates, and its absence in these recent decisions, and what that means?
Yeah. So there’s a bit of a split between public health scholars as to what significance Jacobson should hold. It’s over 100 years old, it predates all of our modern rights jurisprudence.
And so some people say, look, you shouldn’t dilute the Constitution during emergencies, but courts should recognize their role and recognize the compelling interests that the state has.
Others say that there should be a lowering of scrutiny of government measures when we have a pandemic, whether it’s smallpox in Jacobson, or the coronavirus now.
One issue in the free exercise area is, it seems we don’t know what the constitutional standard is anymore.
Because the Supreme Court doesn’t seem to be using what we thought was the doctrinal rule, which says if you have a neutral rule of general applicability, you can’t challenge that on free exercise grounds. And that looks like what we had in Santa Clara.
Now, if you see discrimination or animus behind the regulation of religion, then you can scrutinize it at the level of strict scrutiny. But the Court isn’t really being clear, either, that we’re seeing discrimination against religious entities. So it’s not clear what rule applies. It’s not as though we’re saying, well, the justices are applying the rule as strictly as usual. They seem to be applying a rule that’s stricter than usual — in a pandemic.
Reflecting on the recent decision in Slate, Dalia Lithwick and Mark Joseph Stern write, “What are state and local officials attempting to fight the deadliest pandemic in a century supposed to do with this sprawling mess? Can they craft any public health restriction on religious services that will hold up to this court’s scrutiny?” What do you think? Can they?
Maybe. But we’ve seen the Supreme Court reach out to cases that had been mooted. We saw that in the first decision coming out of New York, where they said that the restrictions on religion have to be lifted; they weren’t going to be in place anymore, no one was going to have to comply with them for the purpose of religious worship. In Colorado; they took down limits on religious gathering in light of the New York case.
I mean, the Santa Clara case is so neutral as to religion, it’s hard to imagine that states can regulate.
Now, maybe that’s wrong. Maybe a mask mandate, the court would say, okay, it applies equally. It applies at the grocery store. It applies, to religious worship. Maybe they would say the six-foot distancing rules, for whatever those are worth, could apply at churches.The problem is that those are sort of “soft touch” measures that are hard to enforce where you don’t have institutions willing to enforce them. The reason those rules work in grocery stores is not because the police are there saying, “You have to wear a mask,” but because the grocery store is telling its customers and employees that they have to wear a mask.
And we saw with South Bay Pentecostal that went up to the Supreme Court, they now can meet indoors, in a megachurch, for their gatherings, and they’re not wearing masks. And they’re singing, even though they’re not supposed to be singing, and they’re not maintaining six feet distance. And they had told the court that they would. You don’t see the state coming in and shutting them down. And I just don’t think that you would.
It’s much easier to shut down indoor services altogether and say, we can keep track of who’s violating now. We can have that as a rule, and tell parishioners as a rule: don’t go to indoor services. It’s much harder to have these softer rules and then try to enforce them.
And thinking about a potential vaccination mandate, what do you think the implications might be there?I think the danger there is what is called the “most favored nation” concept that people think is emerging here. Basically, if you give France breaks on its tariffs, and China has the most favored nation [status], then China needs to get breaks on its tariffs.
And so it’s the notion that if you have any exception in a rule — even defined strangely, in ways that I think are about the scope of the rule, not the exception — then you have to have an exception for religion.
I sincerely hope that’s not the rule that is being adopted, but it’s hard to see how any vaccine mandate or rule could then escape a religious exemption. Because even from the time of Jacobson, people who had medical, physical reactions to vaccines that made vaccines dangerous for them were exempted from vaccine mandates.
So if a medical exemption justifies a religious exemption, as some forms of this argument would suggest, then it seems like you would need a religious exemption. And if you need a religious exemption, maybe you need a philosophical exemption, because otherwise you run into the Establishment Clause, where you’re favoring religion over non-religious beliefs.
Another way this might manifest itself too, is not just refusal to take the vaccine, but rather a selective objection. There’s a lot of back and forth between different Catholic Bishops over the Johnson & Johnson vaccine, for instance, which is more closely related to stem cells derived from abortion. But that probably wouldn’t get into trouble with mandates, because I think it’s unlikely that an employer is going to say, you have to have Moderna, or something.
Anything else that you think we should flag, looking ahead, that touches on these issues of potential religious arguments that derail public health measures?
I think a big area that has been sort of at the margins of what’s gotten to the Supreme Court, but has been in the lower courts, is the issue of religious schools in particular that have been engaging in the same kind of behaviors — resisting closure requirements, resisting mask requirements, and the like. And I think that’s going to be a real area of future litigation, just because we do so much of public health through schooling. And there seems to be some critical resistance, and maybe attempts to use religion to undermine public schools.