By: Claire Lieberman
States enacted various guidelines in March and April to promote social distancing in an effort to combat the spread of COVID-19. By the end of April, 35 states had either completely prohibited religious gatherings or limited them to some extent. In contrast, 15 states exempted religious gatherings from stay-at-home directives, describing them as “essential activities.”
The different ways states have dealt with religious gatherings underscores the tension between the Free Exercise Clause and the Establishment Clause. It also shows how difficult it can be for courts to balance these competing interests.
Religious groups like the South Bay Pentecostal Church, pictured above, believe that the stay-at-home orders violate their First Amendment right to freely exercise their religion. On the other hand, some legal scholars contend that special exemptions for religious gatherings may even violate the Establishment Clause because believers are given preference over nonbelievers. It will be interesting to see how the Supreme Court toes this line in the resulting litigation.
In California, South Bay United Pentecostal Church sought a temporary restraining order to prevent the enforcement of the state’s coronavirus restrictions, which allowed some businesses to open but mandated that churches remain closed. South Bay argued that California’s guidelines violated the Free Exercise Clause of the First Amendment because they treated religious gatherings differently than similarly situated secular activities. The district court denied the request for an injunction, and South Bay appealed to the Ninth Circuit.
The Ninth Circuit has yet to rule on the merits of South Bay’s request for a temporary restraining order, but in the meantime, both the Ninth Circuit and the Supreme Court have denied South Bay’s motion for an emergency injunction pending appeal.
It is important to keep in mind that a decision on an injunction pending appeal is not a ruling on the merits; rather, it is a ruling as to the likelihood of the plaintiff’s success on the merits. Therefore, the Court’s decision is notable because it may indicate the church’s likelihood of success should its appeal on the merits reach the Supreme Court.
South Bay United Pentecostal Church v. Newsom
At the time of the Supreme Court’s decision, California’s executive order “limited attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.” The Court voted 5-4 to deny South Bay’s request to bar the enforcement of California’s order.
Justice Kagan did not write a majority opinion, but Chief Justice Roberts’s concurrence is instructive. He emphasized that the states have wide latitude to make health and safety decisions. He concluded that the guidelines did not violate the Free Exercise Clause because similar secular gatherings, like sporting events, concerts, and lectures, were subject to parallel restrictions.
Justices Kavanaugh, Thomas, Gorsuch, and Alito dissented. Justice Kavanaugh took issue with the Chief Justice’s characterization of activities that are similar to religious gatherings. Instead of sporting events, concerts, and lectures, Justice Kavanaugh analogized places of worship to restaurants, grocery stores, and offices. Although he noted that the state had a compelling interest in preventing the spread of COVID-19, he did not believe that California had shown a “compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.”
In addition, Justice Kavanaugh did not believe that the restrictions were “narrowly tailored to advance that interest.” For example, California could have simply required places of worship to abide by social distancing and other health protocols rather than place a cap on attendance. It would also be permissible to have the same attendance limit for similar religious and secular gatherings. Because the state failed to show a compelling justification for subjecting places of worship to more stringent regulations than similar secular businesses, he would have granted the preliminary injunction.
Given the recent changes to the Court, it is difficult to predict what will happen with this case. However, any time a legislature makes a religious exemption to a generally applicable rule, there is a concern that it violates the Establishment Clause by giving special treatment to religious groups. In general, there is no violation of the Establishment Clause when the “government acts with the proper purpose of lifting a regulation that burdens the exercise of religion.” For example, the Eighth Circuit upheld a religious exemption to Medicare and Medicaid in Min De Parle because “it remove[d] a special burden imposed by the Medicare and Medicaid Acts upon persons who hold religious objections to medical care.” Some legal scholars argue that allowing religious gatherings while prohibiting large secular gatherings discriminates against nonbelievers and therefore violates the Establishment Clause. However, the religious exemptions to coronavirus regulations could instead be viewed as lifting a burden on religion.
The South Bay United Pentecostal Church decision highlights the difficulty in determining which secular activities are most similar to religious gatherings. The problem is that there is some truth in both the majority and the dissent’s characterizations, but it depends on the religious gathering. A Sunday service at a megachurch like South Bay with 200-300 attendees sounds a lot more like a sporting event or a concert, whereas an intimate, quiet Quaker service could be more akin to a grocery store or a restaurant.
This begs the question – should the Court paint all religious proceedings with a broad brush? It’s not constitutionally permissible to discriminate among religious groups, but when it comes to coronavirus, it’s not logical to create one-size-fits-all regulations for religious gatherings. Rather than distinguishing based on religious beliefs, neutral public health criteria that applies everywhere is both a constitutional and commonsense solution to preventing the spread of coronavirus. For example, states could make distinctions based on crowd size and building occupancy and require all gatherings (religious or not) to abide by social distancing protocols. States could avoid Free Exercise Clause violations by treating similar secular and religious gatherings the same across the board, and exemptions for megachurches would not violate the Establishment Clause if properly viewed as lifting a burden on religion rather than giving religious groups special treatment.