- October 26, 2020
The Free Exercise Clause of the First Amendment prohibits government discrimination based on religious status. Nevertheless, several states, in restricting various activities in response to the COVID‑19 pandemic, have imposed greater restrictions on religious gatherings than on commercial entities. Lower courts, for the most part, have upheld the states’ rules, based on a stated deference to policy decisions concerning a public health crisis.
Even where a lower court refuses to enjoin a law or regulation, however, a party can seek relief from a court of appeals or even the Supreme Court. In two cases challenging disparate treatment of religious gatherings under COVID-19 reopening schedules, South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak, the U.S. Supreme Court denied the churches’ requests for an injunction of the limitations on in-person worship. Four justices dissented in each case, and issued opinions in support of the churches’ First Amendment position. A similar challenge to Governor Pritzker’s reopening plan for Illinois also reached the Supreme Court, but was rejected based on the state’s representation that it was lifting the 10-person limitation for religious services.
Despite the recent setbacks for religious congregations seeking to worship together, the replacement of Justice Ginsburg on the Supreme Court may establish a majority of five justices willing to enjoin COVID restrictions that are more stringent for religious gatherings than for commercial activities.
U.S. Supreme Court Denies Relief to Churches in California and Nevada
South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020)
After the State of California allowed restaurants, offices, warehouses, malls, and retail stores to operate under Phase 2 of its COVID-19 reopening plan, houses of worship initially were forced to remain closed, and then were subject to a limit of 25% occupancy—a limitation not imposed on commercial activities. South Bay United Pentecostal Church, a congregation near San Diego with regular attendance of 200 to 300, challenged California’s restrictions in U.S. District Court and then in the U.S. Court of Appeals for the Ninth Circuit, both of which denied the church’s request for an injunction.
On petition to the U.S. Supreme Court, a five-to-four majority ruled against the church. According to Chief Justice Roberts, in the majority, the courts should not “second-guess” local officials on matters of public health and safety. The Chief Justice wrote that because some “comparable secular gatherings” were subject to similar or more stringent restrictions than religious services, the “restrictions appear consistent with the Free Exercise Clause of the First Amendment.”
Justice Kavanaugh authored a dissent, in which he countered that the state’s discriminatory reopening plan was not narrowly tailored to serve a compelling governmental interest. California could, he wrote, impose across-the-board social-distancing requirements or occupancy limits, but under the First Amendment it could not give preferential treatment to secular over religious activities.
Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020)
The Supreme Court faced a similar case shortly after its ruling in South Bay. In Calvary Chapel, a Nevada church sued to challenge the state’s 50-person limit on religious gatherings, given the allowance for businesses including casinos, bowling alleys, and breweries to operate at 50% of fire-code capacity, without limitation. The federal district court denied the church’s motion for TRO or preliminary injunction, and the Ninth Circuit denied the church’s request for an injunction pending interlocutory appeal. Again, the U.S. Supreme Court denied the church’s emergency petition, with Justices Thomas, Alito, Gorsuch, and Kavanaugh dissenting.
The dissenting justices agreed that Nevada’s treatment of religious gatherings violated the Free Exercise Clause. As Justice Kavanaugh wrote, “Nevada’s 50-person attendance cap on religious worship services puts praying at churches, synagogues, temples, and mosques on worse footing than eating at restaurants, drinking at bars, gambling at casinos, or biking at gyms. In other words, Nevada is discriminating against religion.”
The Confirmation of Amy Coney Barrett May Establish a Majority on the Supreme Court Willing to Enjoin Discriminatory Restrictions on Religious Services
In June, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit (which has jurisdiction over Illinois, Indiana, and Wisconsin) upheld Governor Pritzker’s 10-person limit on religious services, which was not imposed on “essential” services including grocery stores and warehouses. The court embraced the opinion of Chief Justice Roberts in South Bay, concluding that church services could be restricted along with “similar activities” such as concerts and movies.
Four justices of the Supreme Court have already rejected this reasoning. And Judge Amy Coney Barrett has been confirmed by the Senate to fill the position vacated by the passing of Justice Ruth Bader Ginsburg, who was part of the majority in South Bay and Calvary Chapel.
In September, Judge Barrett participated in a Seventh Circuit decision considering the constitutionality of the Illinois COVID‑19 reopening plan, after it had been modified to exempt religious worship services from the 50-person restriction imposed on other gatherings. The petitioners in Illinois Republican Party v. Pritzker, 973 F.3d 760, 764 (7th Cir. 2020), argued that under the Free Speech Clause of the First Amendment, their political gatherings should likewise be exempted from the 50-person cap.
Judge Barrett and her two colleagues on the Seventh Circuit (Judge Diane Wood, who authored the opinion, and Judge St. Eve) rejected this challenge to the more favorable treatment of religious activities. The court explained that “the speech that accompanies religious exercise has a privileged position under the First Amendment.” Although “the Governor was not compelled to make this accommodation to religion, nothing . . . says that he was forbidden to carve out some space for religious activities.”
While this Seventh Circuit case clearly differs from a challenge to discrimination against religious practice, the court at some length discussed Supreme Court precedents to underscore that religious practice has a “preferred position” under the Free Exercise Clause and may be accommodated without violating the Establishment Clause. The court wrote, “there can be no doubt that the First Amendment singles out the free exercise of religion for special treatment.” This is the principle underlying the dissenters’ position in South Bay and Calvary Chapel, that any disfavored classification of religion is unconstitutional unless the state can provide a compelling justification. With Judge Barrett as the decisive vote in future cases considering the treatment of religious exercise under the Constitution, the Court may be less deferential toward laws that restrict religious practice.
 Espinoza v. Montana Dept. of Revenue, 591 U.S. ___ (2020) (invalidating tax credit program for private school tuition that was not available for religious schools).
 Elim Romanian Church v. Pritzker, 590 U.S. ___ (2020) (“The Illinois Department of Public Health issued new
guidance on May 28. The denial is without prejudice to Applicants filing a new motion for appropriate relief if circumstances warrant.”).
 Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341 (7th Cir. 2020).