Over the last few weeks, several churches in California and Illinois have asked the courts for relief from their state’s restrictions on religious assemblies—restrictions put in place to limit the spread of COVID-19. Because the trial and appellate courts would not grant them relief, they made a final appeal to the United States Supreme Court last week. And when the Supreme Court ordered the states to respond to the churches’ appeals, some held out hope that the Supreme Court would rule that the restrictions violated the churches’ constitutional right to the free exercise of religion. But that is not what happened.
After Illinois was ordered to respond in the case of Elim Romanian Church, et al. v. Pritzker, Governor Pritzker decided to convert the restrictions into mere guidelines. Illinois was thus able to argue that since the restrictions were now just guidelines there was no longer a case for the Supreme Court to decide. And on Friday, May 29, 2020, that is precisely what the Supreme Court concluded when it denied the Illinois churches’ application for injunctive relief.
Rather than use the same tactic, Governor Newsom of California decided to keep his restrictions in place—allowing the Supreme Court to decide their constitutionality in the case of South Bay United Pentecostal Church, et al. v. Newsom. Late Friday evening, a split Supreme Court ruled against the churches. Chief Justice Roberts, writing for the 5-4 majority, held that California’s restrictions on places of worship were “consistent with the Free Exercise Clause of the First Amendment.” The Court held that places of worship were not entitled to the same treatment as “grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” The majority also cautioned against an “unelected federal judiciary” second-guessing the limits imposed by officials acting in “areas fraught with medical and scientific uncertainties.”
In dissent, Justice Kavanaugh, joined by Justices Thomas and Gorsuch, wrote that California was discriminating against places of worship because it did not impose the same social-distancing and occupancy limitations on comparable secular activities. The dissent argued that absent compelling justification states may not “take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing strict requirements on places of worship.”
While these cases were decided on their specific facts, the Supreme Court’s decision in the South Bay case will likely affect the viability of other free exercise claims which churches have filed to challenge COVID orders in other states. The South Bay decision is also reminder that the Free Exercise clause, as currently interpreted, does not provide religious exercise the robust protection many (including some current Supreme Court justices) believe its text demands. Ever since the Supreme Court decided Employment Division v. Smith in 1990, the courts have generally interpreted the Free Exercise Clause as not providing religious people or institutions any special right to be exempt from neutral laws of general applicability. And as a result, the Free Exercise Clause has been applied simply to ensure that religious people and institutions are treated on an equal basis with their secular counterparts. This is why statutes like the Religious Freedom Restoration Act and the Religious Land Use & Institutionalized Persons Act were necessary and remain so important.
At Dalton & Tomich, our goal is to help religious institutions better understand and assert both their constitutional and statutory rights. In many cases, statutory claims may prevail when constitutional claims fail.
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