Against the backdrop of the coronavirus pandemic still raging, the US Supreme Court recently weighed in on the interaction between public health measures and the First Amendment to the US Constitution. The Governor of New York, Andrew Cuomo, imposed, by Executive Order, occupancy limits on houses of worship in designated zones. On 25 November 2020, the Court, by a 5-4 margin, granted injunctive relief enjoining enforcement of the occupancy limits in response to applications by the Roman Catholic Diocese of Brooklyn and Agudath Israel of America (pending disposition of their claims before the US Court of Appeals for the Second Circuit).

The New York Governor’s Executive Order No 202.68, dated 6 October 2020 and entitled “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency”, imposes restrictions on attendance at religious services in areas classified as “red”, “orange” and “yellow” zones. In red zones, houses of worship are subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer. In orange zones, houses of worship are subject to a maximum capacity limit of 33% of maximum capacity or 25 people, whichever is fewer. In yellow zones, houses of worship are subject to a capacity limit of 50% of maximum occupancy.

Other restrictions in the red zones include that non-essential businesses are to reduce their in-person workforce by 100%, schools are closed for in-person instruction, and restaurants and taverns are open for take-out or delivery only. In orange zones, certain non-essential businesses such as gyms and hair salons are required to reduce their in-person workforce by 100% and schools are closed for in-person instruction. Movie theatres, concert venues and sporting arenas are required to close entirely.

The majority

A majority of the US Supreme Court granted injunctive relief against New York’s Executive Order. In an unsigned opinion, the majority (comprising Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett) found that “[t]he applicants have clearly established their entitlement to relief pending appellate review” because “their First Amendment claims are likely to prevail, … denying them relief would lead to irreparable injury, and … granting relief would not harm the public interest”.

The First Amendment provides, in relation to religion, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. These two clauses are known as the Establishment Clause and the Free Exercise Clause respectively. The Supreme Court’s current approach to the Free Exercise Clause is governed by the 1990 decision of Employment Division v Smith and the 1993 decision of Church of Lukumi Babalu Aye v Hialeah. In those decisions, it was held that if a law that burdens religious practice is neutral and of general applicability it does not violate the Free Exercise Clause. However, if such a law is not neutral and of general applicability, it needs to be justified on the basis of strict scrutiny, that is, the law must be narrowly tailored to serve a compelling state interest.

The interaction of coronavirus restrictions on religious practice with the First Amendment’s Free Exercise Clause has been a salient issue since the beginning of the pandemic. The Supreme Court has considered it twice already this year, in South Bay United Pentecostal Church v Newsom and Calvary Chapel Dayton Valley v Sisolak. In both applications, the Court declined to grant injunctive relief against limitations on attendees at places of worship – the former in California restricting in-person worship to 25% capacity or 100 people (whichever was lower), and the latter in Nevada restricting in-person worship to 50 people. However, the Court’s composition has changed since those decisions, with Justice Ginsburg passing away and Justice Barrett joining.

In the present applications, the majority said that “the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment”. That was because, while a synagogue or church could not admit more than 10 persons in the red zone, “essential” businesses have no limits on admission of people. This disparate treatment meant that the challenged restrictions were not neutral and of general applicability, with the consequence that they needed to satisfy strict scrutiny.

Although stemming the spread of the coronavirus was accepted to be a “compelling interest”, the regulations were found not to be “narrowly tailored” because they were “far more restrictive than any COVID-related regulations that have previously come before the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services”. Less restrictive measures were available, such as tying maximum attendance to the size of the church or synagogue, rather than setting caps.

The majority further found that “the challenged restrictions, if enforced, will cause irreparable harm” because if services were limited to 10 people, “the great majority of those who wish to attend … will be barred”. Remote viewing of services, if possible, would not be the same as personal attendance: Catholics receive communion in person, and there are Orthodox Jewish traditions that require personal attendance.

The majority conceded that “[m]embers of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area” but said that “even in a pandemic, the Constitution cannot be put away and forgotten”. That the Governor reclassified the areas in question from orange to yellow did not matter, because “the applicants remain under a constant threat that the area in question will be reclassified as red or orange”.

Justice Gorsuch concurred with the majority in a sharply worded opinion, asserting that “we may not shelter in place when the Constitution is under attack”. Justice Kavanaugh, also concurring, was more measured. His Honour accepted that the pandemic is “extraordinarily serious and deadly”, but said that “judicial deference in an emergency or a crisis does not mean wholesale judicial abdication”.

The dissents

Chief Justice Roberts dissented on the basis that after the applicants filed their applications, the Governor revised the designations of the affected areas, and the houses of worship identified could now hold services with up to 50% capacity. His Honour observed that “[n]umerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the Free Exercise Clause”. However, it was unnecessary to “rule on that serious and difficult question”.

Justice Breyer, with whom Justice Sotomayor and Justice Kagan joined, commented similarly to the Chief Justice that the affected areas were no longer within red or orange zones. His Honour also emphasized that, “according to experts, the risk of [coronavirus] transmission is higher when people are in close contact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces”. Given New York’s arguments based upon health, safety and administrative considerations that needed to be balanced against the applicants’ First Amendment challenges, the applicants’ claim was “far from clear”. In the circumstances, therefore, injunctive relief was not appropriate.

Justice Sotomayor, with whom Justice Kagan joined, said South Bay and Calvary Chapel established a “clear and workable rule” that state officials “may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict”. New York’s restrictions met that test because there were similar or more severe restrictions to “comparable secular gatherings” such as lectures, concerts, movie showings, spectator sports and theatrical performances “where large groups of people gather in close proximity for extended periods of time”. Grocery stores were “dissimilar” because “people neither congregate in large groups nor remain in close proximity for extended periods”. Although the Executive Order referred to religion “on its face”, it gave religious institutions “preferential treatment” in comparison to “secular gatherings”. As a result, her Honour considered that strict scrutiny was not warranted.

Comparing like to like

The issue that the US Supreme Court faced was difficult. There is no question that New York’s restrictions on worship, responding to the coronavirus pandemic, represent a significant burden on religious practice as protected by the Free Exercise Clause; indeed, gathering for the purposes of worship may legitimately be considered to be central to religious practice. The challenged Executive Order makes specific reference to religion and imposes extremely strict limitations on the numbers of attendees at houses of worship. The standard that the applications needed to meet for injunctive relief was a lowered one of “likely” success. And the majority’s position, comparing the restrictions on religious practice with lesser restrictions on certain secular activities, has some degree of intuitive appeal.

However, it seems doubtful that the majority’s analysis amounts to an apples-to-apples comparison. The majority found the Executive Order’s non-neutrality to be demonstrated by the fact that attending houses of worship was treated less favourably than secular activities like shopping. Likewise, Justice Gorsuch’s claim that “[t]he only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces” relies on religious worship being otherwise equivalent to the secular activities subject to lesser restrictions. His Honour went so far as to say that: “at least according to the Governor [of New York], it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?”

But, as Justice Sotomayor pointed out, shopping is not comparable in risk to gathering indoors in a group for an extended period, as is entailed by religious services. And secular activities that are more similar to religious gatherings, in that they entail gathering indoors in a group for an extended period, such as going to the movies, are subject to even greater restrictions under New York law. The opinions in the majority did not grapple with this difference in risk. As Justice Sotomayor put it, Justice Gorsuch “does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time”, since bike repair shops and liquor stores do not have those features while religious services do. Because the majority opinions did not compare like to like, it does not seem that non-neutral treatment of religious practice by the Executive Order was actually demonstrated, making the application of strict scrutiny inappropriate.

England’s tiers

Although the US and UK legal systems differ, disparate treatment of religious practice might be relevant to any assessment of the proportionality of England’s coronavirus restrictions under Article 9 of the European Convention on Human Rights, which protects religious freedom. During the lockdown from 5 November to 1 December 2020, under the Health Protection (Coronavirus, Restrictions) (England) (No 4) Regulations 2020, religion was subject to a severe limitation: public services were banned altogether, over the protests of religious leaders, some of whom brought a legal challenge. However, that changed with the introduction of tiered system pursuant to the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, which entered into force on 2 December 2020.

England’s three tiers superficially resemble New York’s three zones, but the approach to attendance at houses of worship is more permissive. As promised in the COVID-19 Winter Plan, the new regulations do not ban communal worship in any tier. There are general limits on interacting or mingling with others which also apply in places of worship, varying by tier: in Tier 1 areas (described as Medium Alert), no person may participate in a gathering which consists of more than six people, while in Tier 2 (High Alert) and Tier 3 (Very High Alert) areas, indoor gatherings of two or more people are banned (with exceptions). There are also person limits for events such as marriages and funerals. But in respect of attendance for worship, the government’s guidance merely advises that “[l]imits for communal worship should be decided on the basis of the capacity of the place of worship following an assessment of risk”. Thus, the majority’s concern that houses of worship in New York had limits on admission, while “essential” businesses did not, is not applicable to England’s tiers.

Moreover, the kinds of secular venues identified by Justice Sotomayor in her dissent as similar in risk to places of worship are subject to stricter regulation in England than places of worship. Cinemas and theatres are allowed to stay open with restricted hours in Tiers 1 and 2 but are closed in Tier 3. Hospitality venues in England’s Tier 2 areas can only serve alcohol with “substantial meals” (sparking conflicting takes on whether a Scotch egg qualifies), and they are closed except for takeaway and delivery in Tier 3 areas. Compared to these restrictions, places of worship, which are remaining open in all tiers, are in an enviable position – prompting one tequila bar in a Tier 3 area to seek to register as a church.

A constitution under attack?

On both sides of the Atlantic, the impact of coronavirus restrictions on religious practice has proved thorny. However, the majority’s statement that “the Constitution cannot be put away and forgotten” strikes the reader as overstated (and even more so Justice Gorsuch’s claim that “the Constitution is under attack”). From at least this foreign observer’s standpoint, the issue raised by New York’s restrictions is not putting away and forgetting the US Constitution, least of all attacking it – the issue is determining what that Constitution actually requires. Notably, Chief Justice Roberts rejected some of Justice Gorsuch’s heated rhetoric, stating that he did “not regard my dissenting colleagues as … ‘shelter[ing] in place when the Constitution is under attack’”; rather, “[t]hey simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution”.

With the constitutional issue far from clear in such a difficult case, and the majority seeming to ignore obvious counterarguments, bombast may ring hollow. And if, indeed, the majority’s reasoning is not particularly convincing, one also questions the wisdom, from an institutional perspective, of the Supreme Court sticking its nose into the pandemic response, a subject matter with which it lacks expertise. When the legal issues are as hazy as they are here, Chief Justice Roberts’ choice to avoid what English courts might consider an “academic” question has much to commend it.

My thanks to Alison Young and Michael Gordon for their insightful comments. Any errors are mine alone.

Guy Baldwin is a PhD student in constitutional law at the University of Cambridge.

(Suggested citation: G. Baldwin, ‘The Pandemic and the First Amendment’, U.K. Const. L. Blog (8th Dec. 2020) (available at https://ukconstitutionallaw.org/))