This article, about a recent Supreme Court decision that prevents New York from enforcing limits on religious gatherings during the COVID-19 pandemic, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
On November 24, 2020, the Supreme Court ordered temporary relief preventing Governor Cuomo and New York officials from enforcing limits on gathering imposed on religious houses during the COVID-19 pandemic (Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo). The decision, as the dissents pointed out, raises concerns about the ability of states to limit religious activities in the interest of protecting believers – and the broader public – from diseases. But the per curiam opinion makes relatively limited changes to our First Amendment jurisprudence, though it may signal that the court will, in the future, change it, and does not at present change the legal framework governing vaccine mandates.
On October 6, 2020, Governor Cuomo from New York issued an order imposing restrictions on gatherings based on a three-zone framework, red, orange, and yellow zones. Among other things, it set specific restrictions on “houses of worship.”
In the red zone, the order said that “houses of worship shall be subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer.” In orange zones, “houses of worship shall be subject to a maximum capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is fewer;” in yellow zones, “houses of worship shall be subject to a capacity limit of 50% of its maximum occupancy and shall adhere to Department of Health guidance.”
Restaurants in red and orange zones were not allowed to have in-house dining but were allowed to provide takeout or delivery, and in orange zones, to have outdoor services. Stores were left open. In red zones, schools were also to be closed for in-person teaching. Yes, this is relevant.
A bit of legal background is needed to understand this. Law puts things in silos, and address claims under a specific line of thought, even if they may fit more than one silo. In this case, there are at least two silos that may apply.
First, the Court could have addressed this using Jacobson v. Massachusetts, under an approach that provides high levels of deference – though not without limits – to public health measures that affect individual rights. Here is a discussion of Jacobson in this time by Prof. Wendy Parmet.
Second, the Court could have focused on freedom of religion, and more specifically the free exercise clause of the First Amendment, and asked whether the orders violate the First Amendment. Courts differ on the appropriate relationship between Jacobson and the more elaborate rights jurisprudence, but with caution, I would say that most public health law scholars agree that public health measures should meet both sets of requirements, and I agree with that.
In this case, the per curiam opinion – the Supreme Court’s majority, which is the only part of the decision which is legally binding (though other parts can have persuasive value) – focused on the free exercise clause, not on Jacobson. A concurrence by Justice Gorsuch discussed Jacobson, but that is one Justice’s opinion, not the majority view. In other words, generally, the decision was not focused on Jacobson and did not change that line of cases. It did apply existing first amendment jurisprudence differently than before.
Under the current Supreme Court free exercise jurisprudence, generally applicable, neutral on their face laws do not require a religious exemption and do not have to meet the high bar of strict scrutiny – a showing that there is a compelling state interest in the restriction, and the restriction is the least restrictive means to achieve that interest.
There is an exception, however, when an apparently neutral law was actually motivated by hostility to religion. In that case, the law must meet the bar of strict scrutiny. Some courts, but not others, have also held to strict scrutiny any law that treats religious institutions differently than other institutions.
That means those general laws that do not signal out religious establishments are not required to provide a religious exemption unless there is a showing that the apparently neutral law was masking hostility to religion.
This is not changed by this decision. However, the current orders do expressly address religious institutions and do treat them differently. And one of the arguments of the challengers is that the order was motivated by hostility to religion. As the per curiam order states,
Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included.
In essence, challengers made two arguments against the order. First, that it was motivated by hostility to religious groups, and hence should be held to strict scrutiny. Second, that it treated religious establishments differently – and harsher – than it did others.
Note that at this point, the question before the Supreme Court was whether to grant a temporary injunction. The full case was not yet litigated. But one of the criteria for granting a temporary injunction is showing “likely success on the merits,” and the decision strongly suggests that the Supreme Court thinks the challengers have a case.
In May 2020, in a 5:4 decision, the Supreme Court refused such relief to churches in California. But between May and November, Justice Ginsburg died, and Justice Barrett was appointed. It is straightforward to attribute the change in the Court’s conclusion to that personnel change, though the Court did try to distinguish the cases.
The COVID-19 religious gatherings per curiam decision
Per curiam means the decision was not signed by a specific justice. Justice Gorsuch and Justice Kavanaugh wrote concurrences – additional opinions agreeing with the result – and Justices Sotomayor, Breyer, Kagan dissented (in two dissents, one with all three, written by Justice Breyer, and a second by Justice Sotomayor and Kagan). Chief Justice Roberts appeared to agree with much of the constitutional analysis of the majority, but would not have issued a preliminary injunction because the areas in question have, a few days previously, been designated as yellow zone, subject to very few restrictions.
I am not going to analyze the full opinions, because I want to put out something quick for the immunization community, but they certainly deserve – and I expect will get – longer treatment.
For the purpose of this post, the most important part is that the per curiam opinion found that plaintiffs are “likely to prevail” on their First Amendment claims, on both grounds that they asserted. First, the Court found that the plaintiffs showed that the requirements can be seen as targeting the ultra-orthodox Jewish community, based on statements made as they were issued.
If that was all, the case would not break any new grounds, and be a simple application of existing law, which holds laws targeting religion, or religious communities, to strict scrutiny – and likely be uncontroversial, at least in principle.
But the Court went further, and found that “the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.” The Court found that there was a lot of “essential” businesses – “things such as acupuncture facilities, campgrounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.”
The Court found that the disparate treatment between houses of worship and those businesses is troubling.
This is not a complete overturning of the previous rule that general laws do not have to meet strict scrutiny if they don’t exempt religion, but it is tricky. Previously, policymakers could draw some distinctions without having most courts apply the high bar of strict scrutiny. This decision suggests that may no longer be the case (though it does not make a general statement on it). In that, it sets the Court as the arbitrator of which distinctions are valid.
To give a few examples from the case, campgrounds are outside, and churches are inside. As for stores, also mentioned in the opinion, there are good grounds to distinguish between passing contact in a store – even one where mainly non-essential things are sold (and groceries stores, for example, sell things that would likely be considered essential by religious and secular observers alike, like food) – and the type of contact involved in a lengthy religious ceremony in a religious place, accompanied by vocalizing (which, we know, spreads germs more effectively). The case did not thoroughly consider if there are good public health grounds for distinctions made, just referred – with quite a bit of criticism – to a few that the Court disagreed with. This decision makes drawing lines a riskier endeavor, at least if policymakers make specific reference to houses of worship.
The Court raises, as reasons against strong regulations of these facilities, the fact that “there is no evidence that the applicants have contributed to the spread of COVID-19” because there have been no outbreaks in them, and that they have followed previous public health guidance. But that’s a tricky argument: we know there have been other outbreaks centered on houses of worship, and it doesn’t have to be in these particular churches. The Court here found that these distinctions require applying strict scrutiny, and then found that while preventing COVID-19 is a compelling interest, the restrictions applied are too broad.
As pointed out by a legal scholar on Twitter, the Court did not even do a thorough public health analysis here and did not consider the fact that different settings may have different results. The Court certainly did seem to give very short shrift to the potential for COVID-19 cases or deaths from religious gatherings and did not give credit to the fact that there are several levels of restrictions.
This decision will make it harder for public health authorities to impose limits on houses of worship, but certainly not impossible. What it suggests is that public health authorities cannot single out houses of worship. But authorities can, for example, single out “indoor gatherings with any kind of communal presentation, class or ceremony” – religious or not – for regulation, or simply limit any indoor gathering that is more than transient. It is a burden on preventing disease, but not an insurmountable one.
What About Vaccine Mandates?
In previous writing, I pointed out that a religious exemption from school immunization mandates is not constitutionally required. This decision does not change that, for three reasons.
First, school immunization mandates do not target religion. They are enacted to protect the public health and apply to anyone with objections, religious or secular alike. This reality was at the basis of rejection of challenges to New York’s repeal of its religious exemption to school immunization mandates. The focus of mandates is to make schools safer from preventable diseases and even though the fact that most religions support vaccines is not determinative on this, the requirements are not focused on those with religious objections, they are general. The executive order challenged here made specifically targeted provisions about houses of worship. That’s not equivalent to a general mandate.
Second, the jurisprudence on school mandates predates Employment Division v. Smith, the case that set the principle that a religious exemption is not required. That is because school immunization mandates focus on children, and as said in what is still one of the most important cases in this area,
[A parent] cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.
Third, because of a variety of arguments, several of the cases challenging school immunization mandates applied strict scrutiny to them already and found that they protect a compelling state interest – protecting children from death and harm – and are the least restrictive means available for that specific goal. There is not, at present, a reason to think the Supreme Court will disagree, even if it ends up applying strict scrutiny to this context.
The one question is whether the decision suggests that the existence of secular medical exemption is an issue. I would be inclined to think medical exemptions are sufficiently different not to see them as making school immunization mandates less generally applicable – they draw on very specific medical factors – though it may be advisable to draw them narrowly to make that clear.
However, by itself, this decision likely does not change the legal framework for school immunization mandates. It may be an indication that the Supreme Court is poised to reconsider its approach to religious freedom in ways that may affect that body of law.
I will stop here, even though there is a lot more to analyze in the decision, to keep this manageable and provide quick analysis. I am tempted to go deeper into Justice Gorsuch’s comments on Jacobson and the potential future directions but will reserve those for another day.